Sunday, August 27, 2006



Two recent events brought into sharp focus (again) the relationship between formalism in law and spite. Each, in its own way, is a window on the darkness in people’s souls. Each brings into sharp focus the way in which the spirit of the laws can be so easily perverted by an insistence on the application of law. Each reminds us that law is not a machine, not a black box, into which facts are inserted to produce “right.” The rule of law is not so much law separated from personal discretion, as law in which people are heavily invested in doing right through law.

The first of these events involved the ultimately successful efforts of the local Democratic Party establishment to disqualify the candidacy of a white lesbian who had successfully run in a majority African-American district in Alabama. It appears that a woman named Patricia Todd was on the verge of becoming the first openly gay member of the Alabama state legislature, representing a majority African American district. She had won the Democratic primary election and faced no opposition. The mother-in-law of Todd’s unsuccessful opponent, who had lost by less than 60 votes, then filed a challenge to the election. While the Democratic Party Committee reviewing the challenge rejected the original bases asserted for overturning the result, it nevertheless found a basis for disqualification by applying a 1974 Democratic Party rule that had not been followed by any Democratic candidate since 1988. Because both Todd and her opponent had both violated the rule, they were both disqualified. (Alabama Democratic Party committee votes to disqualify gay primary winner, 08/26/06-08/28/06). But operating in the shadows of this dispute was Joe Reed, described as a longtime chairman of the Black Democratic Caucus, who had reportedly played a key role in the affair. For him, the issue was apparently race, and the object was to ensure that the district remained a “black district.” Id. But no one argued race before the Committee, and no one could point to Reed as the instigator of this affair. He did not file the challenge. The rule invoked was not created specifically to defeat Todd’s chances for election. The rule long predated her election. That the rule had only been recently reapplied after a long hiatus ought not to make a difference. Yet we start with a successful white lesbian candidate and end with the application of a rule conveniently unearthed at a critical moment.

The second involved one Murat Kurnaz, a 24 year old Turkish citizen of German birth, who had been captured during the Afghan War of 2001-2002 and detained as an enemy combatant until August 2006 (Shannon Smiley and Craig Whitlock, “Turk was Abused at Guantánamo, Lawyers Say,’ Washington Post, August 26, 2006, at A-11). Lawyers for the freed man suggested that Kurnaz had been mistreated during the entire four years of his incarceration at Guanánamo. In addition, the lawyers asserted that the manner of his release also constituted mistreatment. Kurnaz was alleged to have been blindfolded and shackled on the trip back to Germany. The lawyers were quoted as saying, “The Americans are incorrigible, they have not learned a thing. . . . He was returned home in chains, humiliated and dishonored to the very end.” Another of his lawyers, Baher Azmy, a law professor at Seton Hall University School of Law in New Jersey, also suggested that the incarceration of Kurnaz proved that the U.S. claim to house only terrorists and people form battlefields “is not only an exaggeration, but a lie.” Id. There is a bit of irony on all of this from the German end. “German officials are partly to blame for Kurnaz's long-term detainment. In 2002, the German government rejected an offer made by the Pentagon to transfer the Turk to Germany, saying they didn't want to permit him to return to the country. Afterwards, the issue was dropped for years and the first serious discussions aimed at obtaining his release began last autumn” (U.S. to Release German Resident From Guantánamo, Aug. 21, 2006). It was also reported that “During initial negotiations, Allen Leotta of the Pentagon's Office for Prisoner Questions, painted the picture of a highly dangerous extremist who had been part of a ‘Bremen terror cell.’” Id. Ironically, at the end, the4 U.S. agreed that “all German diplomats had to do to secure his release was agree to continue conducting surveillance of activity within the Islamist community in Germany.” Id. There is a bit of irony in all of this, especially from the American end. Although a military tribunal (of the type the establishment of which was held to be beyond the power of the President acting alone by the Supreme Court in 2006) held in 2005 that Kurnaz was “a member of al Qaeda and an enemy combatant whom the government could detain indefinitely at the U.S. military prison at Guantanamo Bay, Cuba” (Carol D. Leonnig, “Panel Ignored Evidence on Detainee U.S. Military Intelligence, German Authorities Found No Ties to Terrorists,” The Washington Post, March 27, 2005, at A-01) it appears clear that the evidence against him was spotty at best. But the result was apparently technically valid. And the treatment of the man was technically within the bounds of policy. Yet here we start with an enemy combatant and wind up with a free man on the streets of Germany subject only to the most cursory of surveillance.

In both cases there is a sense of indirection. There is a sense that the law, though correctly applied, served as a screen behind which other, and essentially non-legal disputes were being resolved. The language was legal, the results formally correct from a legal point of view, but the substance of the disputes remains invisible. And within the invisibility what becomes visible is spite. There seems plenty of spite to go around among the principle characters of both sets of events. Some of it might even be justified. But in assuming legal form, spite tends to split the spirit from the letter of the law. And that is something that we should guard against. Not by another law, but by a better sense of moral judgment.

Sunday, August 20, 2006

Legal and Photographic Fictions

Legal and Photographic Fictions: Building Reality in Law and Public Policy.

The most interesting thing about legal fictions is the way in which ethics, and utility help shape a reality by agreement imposed on an entire community of believers. Lon Fuller expressed the truth of this situation in an often quoted explanation of legal fictions as "either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility." Lon L. Fuller, Legal Fictions 9 (Stanford 1967). For the most part, legal fictions have been an extraordinarily useful device for modifying the Common Law in light of changing customs. Wikipedia provides a fairly typical definition of legal fiction as understood in the Western common law tradition. It is worth quoting:

"In the common law tradition, legal fictions are suppositions of fact taken to be true by the courts of law, but which are not necessarily true. They typically are done to evade archaic rules of procedure or to extend the jurisdiction of the courts in ways that were considered useful, but not strictly authorized by the old rule. Another way of understanding a legal fiction is to say that it is a technique somebody uses in order to benefit from a legal rule which wasn't necessarily designed to be used in that way. For example, the UK Parliament's rules state that a person cannot resign from office, but they also state that a Member of Parliament cannot be in a paid office of the crown. The second rule is used to circumvent the first."

Legal fictions remain as important today as they have ever been in molding the domestic law of any legal system. In the United States, for example, it has been useful in molding rules to fit new situations. This is particularly important, for example, in the field of cyberlaw (Daniel Benoliel, ¨Law, Geography and Cyberspace: The Case of On-Line Territorial Privacy, Cardozo Law Review 23:125 (2005)). Legal fictions may be equally important where rules must be recrafted to produce a particular result that furthers the desires, habits, understandings or desires of a legal community. This was the case, for example, from earliest times in the area of products liability law (Frank J. Vandall, ¨Constructing Products Liability: Reforms in Theory and Procedure, Villanova Law Review 48:843, 845-48 (2003)).

The techniques of legal fiction are, of course, older than the Common law. Roman law is replete with legal fictions, as are the normative frameworks within which each of the so-called Abrahamic religions—Judaism, Christianity and Islam—have functioned for millennia. Henry Maine famously explained, the elaboration of legal fictions under the legal traditions of Roman law. "The fact is in both cases that the law has been wholly changed; the fiction is that it remains what it always was" (Henry Maine, “Ancient Law,” in The Problem of Jurisprudence 370 (L. Fuller ed., 1946) (1861).

Legal fictions have also been fundamental to international law, especially the law with respect to the recognition of states, the source of authority within states. An interesting discussion in that regard was recently published in the University of Chicago Law Review (Rosa Ehrenreich Brooks, Failed States or the State as Failure,¨ University of Chicago Law Review 72:1159 (2005)). And, indeed, the several decades old internationalization of the law of human and humanitarian rights, has, in its essential transnational character, made it increasingly necessary to substitute transnational for national fictions.

In each of these cases, the tension between formalism and functionalism, between the unalterable rule as written or previously expressed in case law, and the reality of the desires of the community in which a rule is to be applied, has produced a rich set of techniques of manipulation that are at once both subversive and necessary for the preservation of the forms of a system, though its spirit may be much altered in the process. Of course, at its limit, the system, though formally unchanged, may well become unrecognizable, and eventually, something completely different. The transition of Roman Law from its Republican and Common Law like roots, to the imperial model preserved by the Imperial machinery of Justinian in the 6th century, provides a vivid case in point. The great transition in the Common Law from the 17th century when Coke could suggest to James I that Kingly (or Parliamentary) supremacy was inimical to the “higher law” of the Common Law to the current period when Parliamentary supremacy is thought of as an ageless concept and the Common Law mere judicial musing subject to a legislative imperium is a case in point. Americans, in particular, forget that underlying much of the anger against England in the 18th century had as its source the perception among the colonists of a usurpation of power by Parliament. The American Revolution was, in part, a response to innovations in English constitutional law from out of which Parliament’s supremacy was institutionalized in the English system; it was a rebellion against the newfangled concept of Parliamentary Supremacy in derogation of the Higher Law of “rights of all English subjects” represented in the Common Law and a number f critical charters given from the time of Magna Carta (Edward S. Corwin, The “Higher Law” Background of American Constitutional Law, Ithaca, NY: Cornell University Press, 1955). Indeed, the concept of the state itself owes much to the deployment of legal fictions in its construction between 1648 and 1945.

I was thinking especially about the important role played by the creation and embrace of fiction when communities seek to impose a particular result without appearing to deviate much from the form of its rule structures when stories started appearing about the very clever ways in which pictures were fictionalized and deployed quite successfully in the context of the recent global orchestration of a end to the hostilities in the Israel-Hezbollah War (I use that description because I am not sure whether Lebanon is not itself a fiction, a necessary one no doubt, to cover the reality of a state better known as Hezbollah in the territory attributed to Lebanon). Though I have written about the way in which the international community, particularly in the West, has now developed a great normative structure for the management of conflict (Larry Catá Backer, “The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War”, Law at the End of the Day, Aug. 7, 2006), I had not thought about the way that photo fictions were critical in creating the framework within which the rules of international law could be deployed to produce a particular result that furthered the desires, habits, understandings or desires of the international community, in the form of the U.N. ceasefire resolution and the to be produced resolution of the underlying political issues leading to war.

Upon the adoption of the U.N. ceasefire resolution, reports began to circulate that the media, including but not limited to the Western media (and among them the New York Times and other print media) had published sets of pictures depicting the horrors of the Israeli military campaign in the Hezbollah territories that had been partially or entirely works of fiction, or were otherwise embellished. The falsifications in the photographs could be divided into three broad categories. The first category can be described as posing fabrications. In these photographs the same extremely visually appealing grandmother figure wails in front of what is described as her home. The second category can be described as art shot fabrications. These include the placing of a brand new adorable cuddly plushy toy, for example a Minnie Mouse stuffed animal, amid the rubble of a bombed building. The suggestion, of course, is not only to the horror of war, but to the wanton destruction of the precious homes of the most innocent of civilians—the children. The third category consist of insertion fabrications. These include placing people in scenes that suggest suffering and appalling effects of bombing and fighting. Sometimes these appear posed, and sometimes they might be inserted after the picture is taken. The last category includes visual enhancements. These include photographs of great destruction or of bombing and other acts of violence, significantly enhanced to suggest a greater level of destruction.

The doctored photographs were prominently displayed in the global media, and instrumental in forming the public opinion necessary to create the cover of public approval required to support the U.N.’s actions. The perhaps unconscious cynicism is nicely evidenced in an analysis of the effects of photographic depictions in turning public opinion in so-called secular Muslim majority states like Azerbaijan. Fariz Ismailzade reports for the Eurasia Daily Monitor, an organ of the Jamestown Foundation of the difficulties faced by Azerbaijan, a nation with traditionally strong ties to Israel, or resisting pressure to join the ranks of other Muslim majority states in adopting a unified Muslim stance in the Israel Hezbollah War. In that context, photographic depictions, and the realities they privilege, play a paramount role:

“Instead of loud diplomatic statements and openly taking sides, Azerbaijan has so far preferred to send humanitarian assistance to the suffering people of Lebanon. With images of victims, especially children, broadcast on television daily, the people of Azerbaijan are not likely to remain indifferent. Yet the more pragmatic analysts in Azerbaijan believe that Israel is more important to secular Azerbaijan than is Lebanon.” Fariz Ismailzade, Azerbaijanis Take Sides in the Israeli-Lebanese War, Eurasia Daily Monitor (August 14, 2006).

The photographs thus are deployed to evoke a world of expectation. Where cultures, or states, are in conflict, the battle for space for the pictorial depiction of the realities of It served up a reality we were craving. It framed the emotive borders of a legal justification. The pictures suggested what we knew must have been happening. It suggested a literature of war, the gesture of violence. It gave visual expression to poetry of horror. The eye focuses on what it wants to see. A consciousness of a discrete larger reality seeks to connect discrete images. Images of the effects of bombing on children—violence causing sudden injury or death produces a mass rage that is usefully deployed by elites in political communities. That it feeds on hypocrisy is of no moment. The same masses moved to rage by images of bombings injuring or killing old women and children are the same masses who accept from their own regimes a routinized state of grinding exploitation, and exploitation leading to lifelong suffering, exploitation, disease, violence and death, to the same set of individuals. Yet that is the very nature of images, to privilege an image, and by that privileging, to obscure the rest.

In this context, reality loses its objective character. As evocations of larger realities, their staging appeals less reprehensible to those who believe in service to a variety of sets of higher realities. The photos might have been faked, but they expressed a sense of the reality of the events fictionalized in each discrete photograph. And, in any case, what has objectivity to do with the deployment of images. Every image, staged or unstaged, itself represents a choice, a privileging, of a particular view to evoke a particular reaction, memory or connection, on the part of the viewer. Evocation is always artifice. The selection of image for broadcast is inherently political. Faked photographs merely conflate the political choice of selection with the privileging of a particular set of evocations. And a choice was made by elite media in the course of the Israel Hezbollah War to privilege the image evocation agenda of one of the combatants over the other. The faked photographs served that purpose well. And perhaps for those reasons, the world shrugged when the fictionalization was revealed. Even if the specific images were enhanced, or posed, or framed, each reflected a reality within the larger context of the conflict as understood by those for whose erudition the pictures were taken. And that reality was critical as a foundation for the construction of the legal reality of the UN resolutions meant to halt the violent phase of the conflict between Israel and Hezbollah.

Ironically, the UN Security Council cease fire resolution, like the pictures, represent a necessary fictionalization of sorts. The UN Resolution evokes a picture of peace, of the cessation of violence and the embrace of dialogue. It is framed by the fiction of a state--Lebanon--a singular political community in control of a well defined territory. It is directed to a state--Israel--that remains a fiction among many members of the community of nations. It seeks action by a community able to project power within a well defined territory--Hezbollah--whose reality is also felt but about which nothing could be said. The photo fictions were mimicked in the juxtaposition, the wonderfully perverse dialogue, between the representatives of Israel and Lebanon before the UN Security Council in the days before the UN Resolution was adopted. Rhetorical fictions, evocations of irreconcilable realities, augmented by the realities of photography, provided the world community with the fictionalized space within which it could reach the "right" result, fully justified.

Perhaps a student writer got it right in a note that argued for the utility of fictions in law, mathematics, poetry, and literature (Note, “Lessons From Abroad: Mathematical, Poetic, And Literary Fictions In The Law,” Harvard Law Review 115:2228 (2002))

“The debate over the legal fiction has been sporadic and contentious and never entirely hospitable to the idea of fiction in the law. Nevertheless, the law's use of fiction has expanded in both scope and form. What began as the simple pleading of false facts for procedural purposes developed into fictions rooted in substantive legal doctrines. Fictions have more recently been identified in the narratives told throughout the legal process and today are regularly employed by lawyers, judges, and legislatures in their arguments, opinions, and statutes. Legal fictions have become so commonplace that they are often overlooked; however, a closer inspection is in order so that the legal fiction in its varied forms can be appreciated or heeded as appropriate.” Note, supra at 2228.

The Note author reminds us of the great distinction made between fiction and lies, suggesting its utility in using consciously false ideas to reach a correct conclusion. Note, supra, at 2244. It may well be wise for us to remember the way in which Lon Fuller distinguished “a fiction from a lie in that a fiction is not meant to deceive and from an erroneous conclusion in that a fiction is consciously false. [Lon L. Fuller, Legal Fictions 6-10 (1967)];” and that Jerome Frank also distinguished between legal lies, myths, and fictions. Jerome Frank, Law and the Modern Mind 340-41 (Anchor Books 1963) (1930). Note, supra, at 2229 and note 7.

The case of the faked photographs reminds us that legal fictions may require false images to sustain privileged ideas and communal desires. It suggests that false reality can be constructed to support the deployment of legal rules to obtain a desired result made easier by a collective deployment of fake images of reality embraced as true. It seems that a global community with a sufficient will to have its preferred outcomes memorialized as law, is willing to indulge in those photographic fictions that can serve it in creating the legal fictions necessary for conflict management. The case of the doctored photographs provides an excellent example of the modern modus operandi of this new communal world order. It suggests that fictions have moved beyond techniques of logic to respect the form of law while reorienting its application. A global community willing to suspend reinvent belief in order to support a pre conceived result, is one that requires very careful monitoring and against which the old tools of fairness and justice, of right, may now have to be redeployed in more effective form. But it is also a global community working true to form. Faithfulness to form is never a guarantee that substance will follow. And fictions can sometimes reveal the shape of strongly held truths. In the great and very old style Common Law tradition, right follows common belief, and fictions are sometimes necessary to reveal the truth of the commonality of a belief in the courts of the community of nations.

Saturday, August 19, 2006

Can Cuba Build a Socialist Rule of Law Society Before the Americans Come?

Building a Socialist Rule of Law Society in Cuba?

Cuba’s economic integration within the global economy may provide a method for the development of a rule of law society in Cuba. On April 29, 2006, Cuba joined Venezuela and Bolivia in creating the Alternativa Bolivariana para nuestra America (Bolivarist Alternative for our America or ALBA), a trade agreement meant to serve as a socialist alternative to the Free Trade Area of the Americas and other current forms of regional trade agreements. It was supplemented by a People’s Trade Agreement among the three states meant to start the integration of the economies of the three states. For the moment, the agreements have produced relatively little in terms of aggregate trade and integration. But Bolivia, Venezuela and Cuba have made a start of it. Cuba has been trading its human capital, for example its overproduction of doctors and teachers to Venezuela and Bolivia in exchange for raw materials. More such deals are sure to follow between these countries rich in people and raw goods and in need of development otherwise.

The agreements between Cuba, Bolivia and Venezuela are based on a model of socially oriented trade. This model rejects the deregulated, capital oriented, free movement of private interest via private contract model in favor of a public control oriented, social capital maximization, public law based model. The death of Marxism as a state ideology seems to have permitted its dispersal rather than its elimination from political discourse. Castro reminds us of the orgins of the “marxism recycled” in which the ideas expressed by Castro also serve other groups (P. Van Parjis, Marxism Recycled (1993)). It should come as no surprise that Castro provides at least symbolic support for a large number of leftist and anti-globalization elements of civil society in the West and in developing states. But the ideas articulated by Castro also find significant echo in the positions and rhetoric from a number of public and private sectors, most of which have no formal connection to Marxism, and indeed have constituted some of political Marxism’s greatest enemies. Thus models of cross border trade similar to those memorialized in ALBA have found a significant voice within the organs of the United Nations Human Rights establishment and in the discourse of the Roman Catholic Church.

The groundwork for this model of global economic integration should come as no surprise to the West. Fidel Castro has been quite clear about his desire to construct such an alternative system of globalization since the late 1990s. He has also been quite open about the principles on which such a system ought to be based, and the methodology for its implementation. Consider, for example, the clear statement of the ision for the creation of a system of socialist international integration carefully delineated by Fidel Catro in his 1999 speech in Caracas-- Fidel Castro Ruz, Una revolucion solo puede ser hija de la cultura y sus ideas, Discurso pronunciado por el Presidente del Consejo de Estado de la Républica de Cuba, Fidel Castro Ruz, en la Aula Magna de la Universidad Central de Venezuela, 3 Feb. 1999, . In this speech, consisting of a very detailed attack on the normative basis of economic globalization in which the state plays a supporting role, Castro lays out the foundation for an alternative, state based system of cross border trade. For those foundations, Castro draws on what he describes as principles derived from Bolivar and his efforts in the early 19th century to unite the peoples of Latin America. Whatever the ultimate coherence or value of the trade system proposed, Castro was able to provide an ideological basis for opposition to Western, privatized, market based, economic globalization at a time when the old socialist sector and its fellow travelers where desperate for a plausible state based alternative. And he knew what he was doing. “Rather than a "new financial architecture" for an old and obsolete system, what is called for is to demolish the established financial system down to its very foundations to set up another one that is truly reliable, democratic, equitable and humane conducive to eradicating poverty and saving the world.” Fidel Castro Ruz, address at the First Summit Between Heads of State and Government of Latin America and the Caribbean and the European Union, (June 28-29, 1999).

But the West has, as usual, been too busy demonizing Castro’s speeches as the long winded wheezing of an empty headed Swengali offering snake oil remedies to a gullible public to actually pay attention to what he was saying. It is always dangerous to believe one’s own propaganda. All combatants in great ideological struggles are subject to this temptation. The Americans indulge this at their own peril. The history of American surprises at Cuban efforts is a great case in point. There has hardly been a time when Castro has not been absolutely clear about his intentions, even his targets. Yet time after time, Americans, wedded to their dismissive stance, have been caught unawares, or worse, caught underestimating the ability of the Cubans to even somewhat successfully follow through. The creation of the ALBA is a great case in point. The creation of a socialist rule of law society in Cuba is another. The Americans would be foolish to ignore either in their quest for political purity. Indeed, in this context, it both perverse and ironic that the greatest economic power on earth has been focusing on political change among the Cuban elite, while its greatest political enemy has begun to experiment with the nitty gritty of economic development from the ground up. This sort of role reversal does not bode well for American success in the region.

Whatever model Cuba chooses, that choice represents a substantial change from Cuban policy of the last forty years. More importantly, the choice to pursue an integrationist economic policy, even a so-called integrationist policy, will require the development of a system of consistent, predictable rules, fairly applied for the benefit of citizens and Cuba’s foreign partners as well. Indeed, if, as expected, Cuba is invited to become an associate member of MERCOSUR, the need for rules through which Cuba, and Cuban economic entities, can expect to do sustained business with non-Cubans, and even among themselves, will only grow.

These integrationist agreements, thus, provide an opportunity for Cuba to build a rule of law society from the bottom up. The construction of systems of rules, of legal codes, will be critical both for the success of any integrationist effort and for the development of Cuba. In many ways this effort may be similar to that of China in the 1980s and 1990s. But in many important ways, Cuba’s development will be different. As I suggested in an earlier work, “Chinese Maoism is flexible enough to attempt an accommodation to the new ruling order. For the moment it has been able to finesse the fundamental contradiction of its engagement with globalism by adapting the state’s obligation to own the means of production to global enterprise forms. It has started substituting indirect for direct ownership. It has discovered the ownership value of tight regulation of enterprises. Whether the experiment will be successful, that is, whether Chinese communism can survive globalization, remains to be seen. It has, however, brought a measure of power, stability, and engagement with the rest of the world, which has reinforced rather than subverted Chinese sovereignty.” Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives, and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337, 413-414 (2004).

Like China, Cuba must begin by adopting the legal language of modern economic globalization, and then molding that language to suit Cuban characteristics, characteristics that are very different from those of China. Cuba has taken the first tentative steps through its engagement with other states in Latin America. It must begin to take the next steps as well—the construction of law codes that provide a rule based framework for interactions between states, economic and social entities in a consistent, fair and predictable manner. There is great irony here, as well as great potential, that Cuba, like China before it, seems willing enough, in a tentative way at least, to exploit. “The West finds the socialist amalgamation of economic and political institutions to be difficult to deal with, and ultimately unacceptable and incompatible with the emerging global trade system. Yet when the state organizes its economic power in corporations and other entities, and vests majority control in those enterprises in state agencies or the military, then the West finds the resulting economic organization acceptable and compatible with global patterns of economic organization. In the latter case, economic power is organized under and speaks the language of corporations and property. In China, state enterprises, now organized as independent corporations, have been heralded as the vanguard of a free enterprise revolution.” Larry Catá Backer, Cuban Corporate Governance at the Crossroads, supra at 441.

The more difficult step, the implementation of systems of enforcement of rule systems may be more difficult to implement domestically. This remains, for example, a paramount problem in China. But China has been able to finesse enforcement through the use of Hong Kong as a venue for enforcement. Perhaps one day Cuba will be able to do the same by permitting contracts to be enforced in Venezuela, or in any of the associated states of MERCOSUR. But for the moment Cuba must take at least the first step on what will be a long road to the construction of rule based systems integration.

Monday, August 14, 2006

Cycles of Legal Foundations: Law After Deconstruction

This paper starts with the proposition that critical theory appears to destroy particular normative foundations but in actuality has been unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise. In other words, I embark on a journey to understand the reasons for a peculiar recurrence in attempts to overcome the limitations of human normative foundational frameworks. For that purpose I will start with the insights of a 19th century German philosopher and a 14th century North African historian on death and transfiguration, overcoming and recurrence. Those insights then provide a basis for a preliminary aphorisic articulation of the mesh work of understandings within which critical theory, like the normative foundations it attacks, must operate.

The 20th century, the great century of the Rule of Law, was also the century of murder, of endings par excellence. The beginning of the century saw the extermination of the last elements of the ancien regime in Europe, China and the Indian sub-continent. The middle of the century saw the attempted extermination of peoples deemed undesirable – Jews in Europe and the Middle East, Tutsi and other peoples in Africa, Muslims and Slavs in Southern Europe, Ba’hais and other non-Muslims in Persia, and large elements of the Khmer population. The end of the century saw a world gearing up for ethno-cultural conflict on a global scale and race cleansing in sub-Saharan Africa.

Ideas and beliefs were also murdered, at least in the popular conception of the intelligentsia of various stripes. Western intellectual elites, through any number of versions of modern and post-modern theory have presumed themselves at the vanguard of the masses responsible for the death of God and God’s running dog – Law. In particular, a universal belief in the transcendence and eternity of an all powerful God died in the West even as this Western God’s analogues met similar fates in Japan and China, and even as the traditional Gods re-constituted themselves in the dar al-Islam, and the lands of the Hindus and Buddhists. A similar fate was suffered by law, through a century of utterly shameless perversions, all of different sorts, and at the hands of the virtuous as well as of the virtue-less in practically every place on earth. Law, like God, has lost its transcendence. Murdered thus was certainty, legitimacy, progress, a modernist eschatology which “recounts the experiences of a subject affected by a lack, and the prophecies that this experience will finish at the end of time with the remission of evil, the destruction of death, and the return to the Father’s house, that is, to the full signifier.”

But the death of ideas and belief has not been clean. Merely proclaiming the a-historicity of some theory or other does not make it so in fact. And the narcissism of a theory focusing exclusively on a ‘self’ and its ‘other,’ a narcisism that characterizes much theorizing, provides little relief. Perhaps Peter Fitzpatrick summarized the post-modern difficulty best:

The apocalyptic announcements of law’s demise which tumbled out of the period 1940-1980 have given way to more nuanced but still terminal relegations. Instead of the law’s being extinguished in, say, scientistic administration, legality becomes terminal in the sense of having reached an end, but not an annihilation. Some instances:

- law’s dissipation yet persistence in the postmodern or in psychoanalytic positing of a diversity of authority in place of, or along with, the paternal;
– law’s abject emplacement within varieties of revived sovereign or ‘exceptional’ assertion, including biopolitics and war;
– law’s subordination in the cause of integral or self-subsistent systems;
– law’s constituent realignment within globalization, such as its becoming predominantly identified with specific functions – the control and surveillance of the dispossessed and the protection of ‘private’ spheres.
Critical theory’s declaration is still bedeviled by history, progress, and thus, politics. Critical theory, despite its pretensions otherwise, still reflects a longing for a repose, the repose of utopia, of the ability to escape history through the embrace of the perfect, of a leisure that ends history in a sort of Eden. Murder brings repose, an ending. And it is to this end that deconstruction has been bent. In short, it’s anti-modernist stance, used to attack current versions of accepted normative structures – like law, religion, science, and the like – often masks an inherent modernism. STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY 2 (1991).

The shadow of Friedrich Nietzsche looms large over the last century’s killing fields of ideas and belief. Nietzsche opened the way from out of the conundrum enmeshing all who operate within all systems – of morals, economics, politics, race, sex, faith and so forth – a conundrum that appeared to choke thought at every level and among all peoples. Humanity, in search of the rational foundations of their various systems, instead provided “merely a scholarly variation of the common faith in the prevalent morality; a new means of expression for this faith; and thus just another fact within a particular morality. In place of an unthinking acceptance of normative systems as given, Friedrich Nietzsche, Beyond Good and Evil at § 186. such system must be problematized – examined, analyzed, questioned and vivisected. And so the various great actors of the 20th century appeared to examine, analyze, question and vivisect the sovereign normative foundations for systems of race, economics, social organization and philosophy, at every level of social organization.

Yet, so seriously bent on the undoing of the institutionalized hierarchies of human organization that they inherited, theorists in the 20th century sought in Nietzsche those clues and insights through which they might interrogate and undermine the claims to legitimacy and primacy of those organizations – in order to produce a variation of the thing undermined which was this time to last for another eternity. “I call it the moral hypocracy of those commanding. They know no other way to protect themselves against their bad conscience than to pose as executors of more ancient or higher commands (of ancestors, the constitution, of right, the laws, or even of God).” Richard Posner, Past-Dependancy, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, – U. CHI. L. REV. – (2000). In rejecting history in favor of pragmatism for the judiciary, Posner, to some extent, draws inspiration from Nietszche’s On the Uses and Disadvantages of History for Life, in FRIEDERICH NIETZSCHE, UNTIMELY MEDITATIONS (R.J. Hollindale trans., 1963). For a commentary on Posner’s use of Nietzsche, see Ryan Fortson, History, What is it Good For?: A Commentary on a Talk by Richard Posner, 1 STAN. J. LEG. STUD. 11 (2000). Yet the humorlessness of those acolytes, from German National Socialists to European Marxists to those without ostensible affiliation to communities within organized society, blinded them to the central irony, the comedy, of Nietzsche’s critical insight – the connection between overcoming and recurrence, death and transfiguration – to the construction not only of individual but also of communal normative structures. Moreover, the supra-historicism and cyclical nature of what ibn Khaldun identified centuries ago as “group feeling, ” as well as its amorality, conflated with notions of the transcendent rights of groups to arrange their relationships with other groups unrestrained by the will of others produced neither progress nor a history ending overcoming. Instead, they produced the grand theoretical statements of the American Declaration of Independence, the Irish Easter Proclamation of 1916 and the emerging international laws of self-determination, on the one hand, but also provided the basis for the construction of racist, exclusionary, xenophobic states.

And so, perhaps with some horror, these same elites have discovered that both God and Law, resurrected and transformed, having escaped their tomb, leave to theory, once again and always, the task of overcoming another God and another Law, cycling between explosions of the masses and consolidations of those explosions in ever narrower circles of authority, or between vigor and decadence. Everything else is detail – all is contained within the moment. And so the very oh so human comedy of death and transfiguration, extinction and resurrection.

This paper examines the implications of the notions of death and transfiguration, so critical to Nietzsche’s philosophy in the 19th century and ‘Abd-ar-Rahmân ibn Khaldûn’s historiography in the 13th century, on critical theory’s ‘deconstructive’ project. Death and resurrection, and its related notion, that of the imperative of the overcoming of the social or personal self, forms a core part of the modernist world-view only when tied to a purposive history – that is, a history with a beginning and an end to which people and systems are condemned to strive. That condemnation is as much embedded in Christianity as it is in the social, political, ethnic and religious ideologies that have engulfed the world with a vengeance since the 19th century. It is the fatal bacillus which has enervated deconstructive theory as well. Yet Nietzsche understood and ibn Khaldun intuited centuries earlier, both the relationship of death and resurrection/transformation on the one hand, and self-overcoming, the freeing of the self from its own self-constraints, on the other. Recurrence and overcoming, overcoming and recurrence produce patterns that repeat, the details are all contextual. “The new courage – no a priori truths. . . but free submission to a dominant thought which has its time, e.g., time as a property of space, etc.”

People, groups, all conscious organisms simultaneously seek the protection of oblivion, an acceptance of repose in some perfect and eternal state, equilibrium, on the one hand, and also struggle to overcome the desire for oblivion, that is struggle against faith. Such struggle leads to emancipation for those who can successfully struggle. That success is valid for those who struggle, but cannot be gifted to others. Each in turn must struggle – individual, group, organism – against the reality bequeathed to it. And thus the process of self-overcoming and recurrence are linked through death and transformation. “Existence seeks an organizing principle.” Yet organizing principles are personal to the organism that struggles or accepts. Only the struggle remains the same – over and over. Friedrich Nietzsche, The Will to Power at § 1066. Only the eternal can overcome eternally; in all other cases, overcoming recurs eternally. J (1886) at § 200. These open systems of multiple cycles constitute the matrix within which the hermeneutical projects of Gadamer and his followers, can occur, foundations can be established, maintained, problematized, destroyed, and replaced.

Within the matrix of death and transfiguration, within the ahistorical reality of recurrence, in which movement from foundation to foundation is dictated through multiple individual and communal processes of self-overcoming, of attacking the postulates of existence with the tools of a vivisectionist, deconstruction serves as a constant – the instrument of vivisection itself. Deconstruction must deconstruct – vivisecting the vivisectionist reveals the constant thirst, the lust, for murder. The substance of deconstruction is process – the process of murder, of the crucifixion of foundations of substantive assumptions and belief, of permanency of norms and law, an endlessly repetitive task. “Anyone who has once thought through this possibility to the end knows one kind of nausea that other men don’t know – but perhaps also a new task!” Deconstruction is a lust, insatiable, that can offer us nothing other than analysis, the all embracing intention of the murderer. To add something more to the destructive impulse, to seek repose for the murderer, to counsel that the bringer of death kill no more, invites the obliteration of the killer by its own hand, and the false faith of the modernist in progress, history and ultimate repose.

In the 21st century, this “age of disintegration,” the matrix of communal and self overcoming/return reveals itself most clearly. Critical scholarship may say it targets culture, but it can strike only at the current forms of its popular iteration. Yet as long as groups exist, as long as identity matters, it will not succeed in ridding us of subordination and marginalization. It will succeed in reordering them. This is a conclusion pointedly made by Foucault with respect to the establishment of a people's court as a revolutionary method of administering justice by judging the police. For Foucault, and in much of deconstruction theoretics, the form of revolution, if it is to be revolution, "remains to be discovered." I suspect that he is wrong. The bringers of revolution will carry the baggage of the past and reimpose it in new form.

The touchstone of the matrix of recurrence and self awareness, and the utility of critical theory, is grounded in a self and un-self consciousness of difference within and between individuals and communities with finite but reproducible life-spans. Communal and self overcoming and recurrence each stand alone and interact with the other in combination, and in addition they are simultaneously symbiotic in their interactions (each needs the other to complete their respective definition) But here I mean to cast difference in a different light. Let us consider the structure of this current normative post-modernist foundation:

1. The perception of difference is a foundational motivating force in the animation of groups.

2. The significance of difference is constructed, that is, difference constructs value and the value assigned to difference is a deliberate act, whatever system of judgment is used to assign value. Value, in this sense, is not absolute, unchanging, or capable of only one determination. Any difference can be assigned any value.

3. Hierarchy is founded on difference. The significance of difference lies in its consequences both for the ordering of individual perception and the construction of communities of individuals. Hierarchy represents a communal tattoo, a brand, on individuals sharing a particular view of difference and its value.

4. Hierarchy based on difference produces advantage. In the absence of advantage difference can have little significance, and the expression of consequence is best displayed on the individuals embracing a particular system of difference, significance and advantage.
5. Advantage is a foundational motivating force in individuals. The will to power, here naturalized in symbiosis and combination with Nietzsche’s conceptions of the eternal recurrence and the Overman.

6. Individual advantage is contextual.

7. Individual advantage can be satisfied tangibly and intangibly.

8. The nature of advantage and its value is constructed by communities from out of an embrace of the significance of difference-producing hierarchy and, thus developed, is absorbed more or less imperfectly by individuals – whose internal constitutions attempt a replication of the form and manner of the construction of the significance of difference and the production of hierarchy.

9. Difference, hierarchy and individual advantage render its products – communities – highly unstable and multiple.

10. The longevity of any set of perceived significant differences animating group feeling within a community, constituted as borders between groups, is a function of memory, history, tradition. Memory, in this sense, is highly unstable and contingent.

11. Instability permits manipulation – hermeneutics is a function both of human (individual) mortality and the dynamic vectors of advantage within a community – ‘they’ ‘us’ and ‘me’ are under constant reconstruction.

12. Instability is contained within individuals and their communities by exportation – by devices that appear to remove control of difference, significance, hierarchy and the like from out of the individual and community to something outside, with which communication is difficult – religion (God), science (economics, politics), philosophy (marxism), law (the Rule of Law).

13. Exportation reinforces hierarchy by producing smaller sets of individuals or communities with the power to communicate with the norm giver – the priest/judge is thus created.

13. Hierarchy and community are neither linear nor three dimensional, that is, universal nor supra-historical; Multiple groups can occupy the same tangible and intangible space.

14. Individuals occupy different positions simultaneously.

15. Simultaneity produces a blended matrix of advantage – individuals and communities occupy different positions simultaneously within which they must simultaneously navigate – consider for example the multiple positions of the homeless Catholic middle aged white male in Salt Lake City, Utah.

16. Individuals maximize advantage by optimizing aggregate membership in groups; advancing the group cohesion of those communities offering the maximum advantage and problematizing the foundations on which other groups are constituted and the individual members of such groups understand themselves.

17. The bases of group cohesion are destroyed when differences critical for group identity, hierarchy and individual advantage are no longer accepted as significant, that is, when those bases are de-legitimized by an internal or external criticism.

18. Criticism which does not disturb the underlying normative basis of group cohesion merely masks conflict over relative advantage, and thus hierarchy, within a group, rather de-legitimizes the normative basis of group cohesion. Such criticism, the work of much that passes for critical theory in the West, can weaken a group vis-a-vis others and destroy the relative advantage to an individual of membership in that group relative to others, but at its most successful results merely in the substitution of one set of hierarchies for another, each still true to the underlying normative foundation fo the group.

19. Criticism which vivisects the underlying normative basis of group cohesion, that is the faith of a group in its uniqueness and characteristics, can dissolve the bonds that hold a community together, and as replicated in the individual, results in an overcoming of the self.

20. The dissolving of these bonds does not free an individual of community or of himself. Where such dissolution occurs, individuals – über and unter menschen – have reconstituted themselves as communities on the bases of other sets of perceptions of difference. And so community is resurrected, the same and different, overcome yet overcoming, transfigured through death but not dead.

21. The disciplining forces (Foucault) within this foundational matrix of overcoming and recurrence, rests on a variety of devices – systemizations of rules or beliefs that serve to preserve and legitimize the pragmatics of difference and hierarchy, and thus communal cohesion and individual advantage. Natural law, philosophy, history, economics, tradition, theory, religion have all served.

22. For every device, there exist the elements of its own subversion; necessary in the context in which difference, advantage, hierarchy, the community and the individual are imperfectly constituted. The critical impulse also serves individual, and sometimes communal, advantage. Systems of subversion can also be systematized: Natural law, philosophy, history, economics, tradition, theory, religion have all served.

23. The strength of each of these devices is dependant on a number of factors, but is never fixed by those factors, nor by the contexts in which they might be used:

A. The extent to which the device is deemed transcendent, absolute or ‘neutral’ (that is not appearing to confer advantage while conferring advantage) and thus more difficult to manipulate.

B. The self-containment, the completeness, of the system represented by the device, that is, the utility of the device for ‘answering’ all question or covering all topics.

C. The extent to which the device can be used to direct behavior; the extent to which ambiguity is thus eliminated and the individual desire for repose, for the satisfaction of the instinct of the herd, can be satisfied.

D. The utility of the device in affirming the form and value of particular characteristics of difference.

E. The extent to which the device is useful or effective in policing of the borders of difference, that is of the characteristics that separate communities and distinguish between individuals.

F. The effectiveness of the device in defining, providing and protecting individual advantage.

G. The synergistic potential of one device to amplify the effectiveness of others, and conversely, the imperviousness of the device to critique.

24. The nature of these devices is neither fixed nor unidirectional. Every community, every individual, may use any device for particular and contextualized advantage. Every device can be used against itself, that is, each can be used by groups in conflict simultaneously to advance inconsistent advantage (for examples in the wars of religion).

25. As conflict sharpens between or within groups, or within the individual replicating or rebelling against the normative basis of communal organization, ambiguity shrinks, differences sharpen, and the value of advantage (the stakes) increase (Christie Davies). The internal battles over abortion rights in the West, the conflict between the free market and socialist political systems of the U.S. on the one hand, and the former U.S.S.R. and the P.R.C. on the other, the status of females in Zimbabwe since 2000, are all examples of conflicts in which ambiguity retreated, differences sharpened and discipline increased as conflict intensified.

26. The dissolving of communal bonds, even those replicated within the individual does not free either individuals or community of rules of belief. Consequently abandonment of one set of binding devices is followed by the embrace of another set, also subject to the same forces that eventually caused the abandonment of its predecessors.

27. Patterns of individual and communal action, thought and belief are universally shared and finite. Every individual, every community, conforms to a finite number of patterns of behavior, thought and belief (ibn Khaldun), whether or not such patterns are successfully deployed.

28. Patterns, and their inverses, are invoked for and against themselves and the same pattern may describe the actions, thoughts and beliefs of groups and individuals in direct conflict.

29. With enough information about difference and patterns of individual and communal action, it may be possible to anticipate the vectors, if not the amplitudes, of changes. As a subset, it should also be possible to anticipate the value of advantage, and its interaction with community and the individual.

30. The ability to anticipate and the power to intervene are closely related. Anticipation and intervention suggest a system, even one of infinite variability at some level of detail, bound by its own internal logic/illogic. This bound system compels and limits not only humankind, but God as well. That is, that which is or may be characterizable as transcendent is no more than the outward projection of the sum of all possible interactions, of all possible manifestations of overcoming, death and transfiguration. In one sense God, and law, are bound by the objects of their worship or obedience. We effectively obey only ourselves. In another sense, individuals can attempt to play God – can attempt to influence the direction and magnitude of cycles of multi-communal/individual overcoming and reconstitution for particular ends.

31. The consequence for critical theory: critical theory may appear to destroy particular normative foundations but be unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise.


In the West, it is commonplace to lay on Nietzsche’s tomb the laurels of the Hindu Kali the triumphant hero – the destroyer of the institutions of law and religion in the West, the nihilist par excellence. This great critical enterprise of the last century substantially misses the point of Nietzsche’s critical project. Either we delude ourselves into some theory or other centered on the eternity of law, or, in the face of the end of law’s eternity, we cling to a fatuous nihilistic indeterminacy. Law, like God, overcomes itself, and in the overcoming returns.

My idea is that every specific body strives to become master over all space and to extend its force (__its will to power:) and to thrust back all that resists its extension. But it continually encounters similar efforts on the part of other bodies and ends by coming to an arrangement ("union") with those of them that are sufficiently related to it: thus they then conspire together for power. And the process goes on__

The West thus teeters between Good Friday and Easter, between death and transfiguration. So critical theory over the course of the last century or so has set the stage for the greatest joke of the 21st century. We in the Christian West have thought of ourselves as successful in the role of God and law killer. In a great revaluation of values we think, we have infused ourselves with the spirit of the last great community accused of God killing – the very people our elites had taught us to despise for two millennia. Now, we believe we have killed again. This time we have killed the spirit of God in its primary manifestation – law. But God has a sense of humor. Our murder has, by the very hand of the murderer, given rise to God, and to law, again, the same yet different – transformed, invigorated and full of a new faith in itself. The task of critical theory begins anew.

ARISTOTLE, POLITICS (William Ellis, trans., London Everyman’s Lib, J.M. Dutton, 1912).

‘ABD-AR RACHMAN IBN KHALDÛN, THE MUQADDIMAH: AN INTRODUCTION TO HISTORY (Franz Rosenthal, trans., N.J. Dawood, ed., 1967) (1377) (Muqaddimah (Introduction) to Kitâb al-‘Ibar (Book of the History of the World)

Larry Catá Backer, Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 TULSA J. COMP. & INT'L L. 87 (2000).



Ryan Fortson, History, What is it Good For?: A Commentary on a Talk by Richard Posner, 1 STAN. J. LEG. STUD. 11 (2000).

HANS-GEORG GADAMER, TRUTH AND METHOD 302, 306 (Joel Weinsheimer & Donald G. Marshall, trans. 2d ed. 1989).

Michel Foucault, On Popular Justice: A Discussion With Maoists, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1 (Colin Gordon ed. & trans. 1980)

MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan, trans., 1977; Vintage Books 1995) (1975).



Jean François Lyotard, A Postmodern Fable, in JEAN FRANÇOIS LYOTARD, POSTMODERN FABLES 83, 96 (Georges van den Abbeele, trans., Univ. Minn. Press, 1997) (1993).

ANTONIO NEGRI, INSURGENCIES: CONSTITUENT POWER AND THE MODERN STATE (Maurizia Boscgli, trans., Univ. Minnesota Press (1999).

FRIEDRICH NIETZSCHE, ECCE HOMO (Walter Kaufmann, trans., Random House,1967)



FRIEDRICH NIETZSCHE, THE WILL TO POWER (trans. W. Kaufmann & R. J. Hollingdale; New York: Random House, 1968) (DER WILLE ZUR MACHT (Op. Post.)).





Reports of Fidel Castro's Death are Still Exaggerated: On the Failing Health of the Commandante and the State of the Repubic of Cuba

Fidel Castro recently had published a Mennsaje del comandante en jefe al pueblo de Cuba y a los amigos del mundo ("Message From the Commander in Chief to the Cuban People and Friends Around the World"). The message is interesting on several levels. This short essay is meant to highlight soem of the less obvious but more interesting points of the message.

The message reads in full as follows:

Yo no puedo inventar noticias buenas, porque no sería ético, y si las noticias fueran malas, el único que va a sacar provecho es el enemigo. En la situación específica de Cuba, debido a los planes del imperio, mi estado de salud se convierte en un secreto de Estado que no puede estar divulgándose constantemente; y los compatriotas deben comprender eso. No puedo caer en el círculo vicioso de los parámetros de salud que constantemente, a lo largo del día, se mueven.

Puedo decir que es una situación estable, pero una evolución real del estado de salud necesita el transcurso del tiempo.

Lo más que podría decir es que la situación se mantendrá estable durante muchos días, antes de poder dar un veredicto.

Estoy muy agradecido por todos los mensajes de nuestros compatriotas y de muchas personas en el mundo.

Lamento haberles causado tanta preocupación y molestia a los amigos en el mundo.

De ánimo me encuentro perfectamente bien.

Lo importante es que en el país todo marcha y marchará perfectamente bien.

El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.

Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.

Hay que luchar y trabajar.

Most Western media attention was focused on the firsat several paragraphs. The great issue was the state of Castro's health. And this provided a rare moment when the Western media could exercise now rusty skills in reading Soviet style prose. But there is little mystery here, and lots of self conscious playing Castro has always been a master at deploying Western media for his own purposes. Many insurgent groups have learned much from his fifty year of school of media relations--from the leader of Hezbollah to the Irish Republican Army. Castro starts by admitting that he will play games with respect to the state of his health. And it comes as little surprize that he lays the blame for this squarely on American policy, and plans for a post-Castro Cuba. And he reveals little. His state of health is stable and his condition is evolving (but then again, whose health is not always in exactly that same state!). But he drops enough hints to suggest either that his health is bad, or that it is not. The irony wrapped in ambiguity of the Spanish used to deliver both the usual jab at the Americans and to obscure the meassage for the benefit of endless discussions by Western media suggests both that the message was written by Castro, and that his mental state is quite up to its usual standards. And that is where the analysis of the Western press usually ends.

I find the last part of the massage much more interesting than the beginning, as delightful as the lesson in elegant writing as the opening of the message may be. Let us examen each of the last four statements one at a time.

Lo importante es que en el país todo marcha y marchará perfectamente bien.

Castro here suggests that his health has not changed or otherwise affected the operations of the state, nor would the condition of his health affect it. The country continues to operate perfectly well. I suspect that the thrust of the message is actually its opposite. The sentence suggests that nothing has changed and that things are progressing well. My sense is that this sort of declarartion in the past has generally suggested that plans, long in the making, have been triggered. These plans, and the changes they envision, are designed to ensure that the country continues to operate "perfectly well" within the parameters of a Marxist Leninist froundations ovberseen by the dictatorship of a particlar segment of the proletariat.

El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.

That suggestion appears to be confirmed by this statement. The country is preparing for its defense by FAR and the people. The plans that have been activated clearly call for the supreme leadership role to be assumed by the military. While the West focuses on the cult of the Castro family, debating the charisma of Raúl Castro, they fail to understand that Raúl hhas spent the last several decades cultivating a vigourous and tight knit military command struicture that operates like its Chinese counterpart. The big bang for this transformation was the purges of 1989 and the reconstitution of the military therafter. While the West focuses on Raúl, the collegial rulting body of the military will be reconstituting the political and economic organization of the state to meet the demands of a post-Fidel Cuba that preserves their position and is consonant with their ideology.

Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.

Castro reminds his readers that he is not bluffing. These plans have a lonmg genesis and were first tried on a very small scale, apparently to Catro's satisfaction, whern he recently fell from a speaker's platform in Villa Clara.

Hay que luchar y trabajar.

Castro makes the usual call here for work and defense. The suggestion, of course, is that while there will be (great) changes, nothing fundamental will have changed. The Americans will continue to try to subvert the regime, the regime will continue to adhere to the normative basis of its social, political and economic norms. And it will remain the duty of the people to continue to work and defend as they have been expected to do this since 1959.

Together these last four sentences were meant, I believe, to serve as a message and a warning. Plans long in the works have now been put in place. The elements of the military and civil elites on the Island will be deploying over the next several weeks. Very much like those Japanese transformer toys that start as a car and can be twisted into another form, the Cuban state apparatus is now starting its transformation. Whether or not the plan will work remains to be seen. Indeed, the transformation itself will likely be invisible to the West unless its security apparatus look carefully. But in the end, the leadership hopes that the structure of the political apparatus of the state will be transformed to make possible a more collegial leadership structure, led by the military. The economic structure of the state will be prepared for a Western style reorganization--essentially a spin off of state enterprises with ultimate ownership and control to be retained by the state, but more indirectly.

For Americans, so resolutely focused on the political regime, and so wed to an analysis based on personality cults, the message, correctly read, is not good news. A prudent America would be watching very carefully to determine what exactly the Cubans began doing in the weeks leading to the hospitalization of Fidel Castro (surely the planning was begun, and the orders for change given, weeks before the hospitalization, with the so-called public delegations coming weeks after the official delegations actually took place). And a prudent America would be monitoring Chinese communications with FAR much more intently than the polls revealing the “feelings” of the Cuban people for Raúl Castro. Sadly, for American interests, little of this will be done. The Cubans are counting on that.

Wednesday, August 09, 2006

Internationalizing the Law School Curriculum: On the Importance of Combining Law and International Relations

Internationalizing the Law School’s Mission: Expanding the Law School’s Role to Include an International Affairs Curriculum.

Increasingly in the 21st century, law schools in the United States have come to understand that their obligation to provide an education to its students that reflects current needs for research, teaching and service now require them to explore fields of instruction that would have been essentially unknown even a generation ago. As new and important fields arise, fields touching on the production and application of knowledge with tremendous effect on society, it is the duty of the University to respond. The growing importance of globalization has had an enormous effect on law making and law practice. Law is no longer confined to a state or even a nation, but now embraces institutions at the international level and transactions that routinely cross borders.

In response to these rapid developments, law schools have begun to consider the value of establishing schools or departments of international transactions or international affairs (a “DIA”). These new departments would enrich the legal curriculum by offering courses of instruction designed to prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. In some cases, law schools might even consider creating an integrated but freestanding degree-granting department. Recipients of post graduate degrees in international affairs or international; transactions would be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. The purpose of this essay is to sketch the outlines of what such a program might look like.


DIA will be most effective if it can avoid two great pitfalls. The first centers on the creation of a unit of graduate study that did little more than duplicate or focus substantive study in fields already offering graduate degrees at the university. DIA must do more than merely focus the substantive study offered elsewhere. The second centers on its affiliation with a law school. DIA must do more than merely serve as a basis for a focused legal postgraduate degree – a dressed up LL.M. To differentiate DIA, that is to justify its creation, DIA must offer something different from anything offered at the other units of the University. For that purpose, DIA must advance a new and distinct mode of analysis. That analysis provides the basis for transforming the substantive knowledge from the other academic units of the University into policy, and from policy into action.

DIA will create an environment in which to focus on all aspects of challenges that transcend national boundaries. Today, these challenges can be global, regional or bi-lateral. Challenges touch on all aspects of human interaction; they can range from migration, to communicable diseases, to trade barriers, to corruption, to access to education, food and economic opportunity. Actors meeting those challenges are no longer just governmental; policy is now an integral part of the operation of a great constellation of non-governmental actors, ranging from organizations formed to further specific policy goals, to global religious organizations, to large multi-national corporations. In a way unique among schools in the IA field, DIA will focus on IA policy actors, actual current policy issues, the language and recognized approaches to contemporary policy analysis and the methodologies of implementation and monitoring of policy ‘as applied.’

Based on this focus on the policy actors, contemporary policy problems, forms of policy analysis and methodologies of implementation of solutions to problems with global effect, DIA will offer a course of study the principal aim of which is to provide its students with comprehensive and rigorous training sufficient to enable them to function effectively in international affairs, from the conceptualization and formulation of policy, to its implementation and monitoring. To that end, the DIA curriculum will be built upon the realities of the actual ‘business’ of international affairs in the contemporary world. That focus can be divided into four areas of study: actors, policy, tools and realization.

Actors: international affairs are not conducted in a vacuum. Since 1945, the business of international affairs has been institutionalized within a complex matrix of public and private institutions. The number of forms of public institutions has expanded significantly in the last century. Global political organization has moved from a loose set of interactions among nation-state to systems of national interdependence in which a number of new forms of other public international actors play increasingly important roles. These new actors range from loose global associations, centered on the United Nations, to overlapping bi-lateral and regional systems of economic, human rights and criminal regulation. But the greatest change in governance since 1945 has occurred in the private sector. The end of the 20th century has witnessed the institutionalization of what is now recognized as international civil society. This is made up of countless groups organized in a variety of different ways to further all forms of policy objectives. These groups now play an increasingly important role in shaping policy. They play an even more important role in monitoring the implementation of policy. Thus, a basic understanding of the actors involved in the discourse of issues that require multi-national responses is essential for individuals involved in international affairs.

Policy: International affairs are expressed in policy terms. Policy expresses the substance of international affairs. Policy is an elastic concept embracing laws, rules, actions, plans and behaviors, as well as their social and legislative ramifications. It can be expressed as the things public entities choose to do (e.g., to build a dam to generate power) or not do (e.g., not to build a dam to preserve the environment). It can also be understood as a product of the collective effect of the conscious choices of private entities (e.g., to standardize scientific terminology). And it can include rules or understandings resulting from the action or lack of action of individual private actors (e.g., standardization of letters of credit). Policy is given life through the actions of actors through which it is formulated, implemented, and monitored. It is the language of substantive discourse of actors in the international affairs field.

Tools: Policy does not appear unbidden. Policy does not sell itself to actors in international the public and private spheres of institutional society. Policy must be conceived, formulated, explained, justified, defended and advanced. Each of these functions requires certain analytic tools. These tools are drawn from a variety of disciplines: economics, sociology, politics, philosophy, psychology, mathematics, linguistics, quantitative analysis and empirical methods (e.g., econometrics), law, and business. Each provides a means of systematically evaluating alternative means of conceiving, developing, and achieving social goals. These tools supply a common language for policy choices among actors; they supply a mechanics for valuing choices among policy options. An ability to understand and use analytic tools is essential to the development of policy and the steering of policy to implementation.

Realization: The object of policy is implementation. Policies unrealized are goals unrealized and good undone. Taking policy from conceptualization to adoption represents one of the great tasks and serves as one of the great rewards of policy actors. Realization of policy does not happen by itself. It requires navigating complex, multi-state and multi-level systems of governance. It may require action among private actors as well as more formal action in the public sphere. There are systems, and systematic approaches, to policy realization. It requires an understanding of systems and politics, of law and psychology. Moreover, approaches to implementation may differ substantially from approaches to monitoring implemented policy, or seeking policy change. Approaches will also differ depending on the place of the actor within the systems of public and private actors involved in policy decision-making. A critical understanding of these complexities is essential to those who intend to further policy objectives.


The rationale and objectives of a school of international affairs, as outlined above, provides a basis for developing a vision statement for such an enterprise. A vision statement for a school of international affairs could read something like this:

• DIA will be a leading institution for defining and strengthening the field of international affairs (IA) in the academic community worldwide.

• DIA will craft a uniquely focused program which will help define what the outstanding IA program should look like and strive to be ranked as one of the best (if not the best) programs across the IA field.

• To that end, the initial connection between DIA and the law school will provide the foundation for the implementation of DIA’s unique mission.

• DIA will be known for conducting boundary-pushing, multi- and interdisciplinary research focused on the integration of the key constructs of international or cross border affairs—key public and private institutional actors developing, advocating, implementing and monitoring policy—that crosses disciplinary boundaries and links theory with application.

• DIA will be a community of scholars who will provide a climate for unique learning in and outside of the classroom and through which DIA will help mold the IA leaders for this century.


The School of International Affairs will prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. As a top IA program, DIA will seek to improve the lives of people through high quality teaching and learning, internationally recognized research and outreach, and associations with leading IA global institutions. DIA degree holders will be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. DIA will offer a rigorous program of professional education founded on a multi-disciplinary approach to the training of its students. DIA will integrate the great strengths of any research university in the liberal arts, sciences, engineering, business, information technology, communications and law to train students in the application of theory and substantive analysis to practical issues in international affairs. To that end, DIA will serve as the academic unit where the knowledge derived from the substantive fields of study at a research university is cast into policy terms, transformed into rules, and applied by institutional and other actors into action that directly affect the lives of people and institutions.

DIA will emphasize the following:

• DIA will be an asset for the region by serving as a center of expertise in an increasingly important area for the production of knowledge;

• DIA will enable and foster interdisciplinary collaboration in international affairs, focusing on policy, analysis and application across the University;

• DIA will build an organization that insists on respect for individual and intellectual diversity that defines the interdisciplinary vision demands from DIA’s faculty, staff, and students;

• DIA will create a broad based set of curricula that shares a commitment to the global perspectives of education, drawing especially upon existing strengths and curricular elements already in place in the School of Law and across the wider university;

• DIA will encourage the expansion of our faculty research and presence through international involvement including conferences, joint research projects, and sabbatical placements;

• DIA will encourage active and collaborative learning through the use of on-line and in-class technologies as well as cutting-edge pedagogies such as problem-based learning models of teaching and learning;

• DIA will enable partnerships with business, industry, government, and other educational institutions; and

• DIA will use information technology to increase accessibility to the IA curricula across the university and around the world through programs of sharing alone and in partnership with other related academic enterprises.


The core curriculum should reflect this understanding of the framework for international affairs. On this basis a core curriculum will be created consisting of the following year long courses as the foundation of any program of study in DIA. Each course described below would likely be a new course.

1. Introduction to Actors in Institutional Affairs (2 semesters). This course is designed to introduce students to the principal actors in international affairs as well as to the frameworks within which they operate. The first semester should be devoted to a study of public actors: the nation state and its subordinate divisions (e.g., U.S. states, German Lander); transnational and regional associations (e.g., NAFTA, MEROSUR, EU); international organizations (UN); and other international or transnational actors (e.g., WTO, ICC). The second semester should focus on a study of private actors, and the construction and operation of global civil society, including public/private cooperative arrangements (e.g., OEDC), institutionalized non-governmental organizations (e.g., Amnesty International) and other expressions of collective civil society. The objective of this course is to provide the student with a comprehensive understanding of the principal actors involved in the production and consumption of policy. The focus in this course will be on law and political science, with additional contributions from other disciplines.

2. Introduction to Current Policy Challenges (2 semesters). Provide the students with a comprehensive introduction to those areas of policy that form the basis of the current discussion within international affairs. This course is the most flexible and interdisciplinary of the core curriculum. This should be designed as a ‘topics’ course, with the topics changing from time to time to reflect the most significant policy issues of the day. Initially we might focus on the Copenhagen Consensus international policy challenges: (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers. But there are a number of other choices available. By the end of this course, the student should have a working knowledge of all of the most important contemporary areas of policy activity.

3. Analytical Methods (2 semesters). Provide the student with the tools to conceptualize, formulate, analyze, adopt, implement, and monitor policy through rigorous application of recognized modes of analysis. One semester should be devoted to qualitative methods. These may include theories of bargaining and negotiation, game theory, decision analysis and methodologies for making choices where the analysis must account for complexity and uncertainty. The other semester should be devoted to an introduction to quantitative analysis and empirical methods. These may include basic statistical methods, econometrics, experimental design and data analysis. The purpose of the course is not to achieve mastery but to provide the foundations for more advanced work in upper level courses offered in the second year.

4. Implementation (1 semester). The basic purpose of this course is to prepare students to become effective leaders in any organization involved in international affairs. The students will be introduced to organization theory, systems theory, sociology and organizational psychology, as well as the legal framework of organizational functioning. Through readings and problems or case studies, students will learn to understand formal and informal structures of organizations and to navigate within it to further policy objectives and to anticipate reactions and consequences of actions both within and outside organizational structure. To a great extent, this is course should be conceived as a practicum: how to get things done.

5. Economic Analysis (1 semester). In addition to the four basic courses, the core curriculum might also include an introduction to economic theories. The emphasis should be on contemporary microeconomic theory. But substantial time should be devoted to introducing students to alternative theories of economic relationships. Since much policy difference can be ascribed to the embrace of fundamentally different and incompatible assumptions about economic behavior, knowledge of these differences will be critical for developing analytical skills.

6. Additional Requirements:

a. Language. Every student will be required to demonstrate proficiency in at least one language other than English. Students may demonstrate this proficiency at any time prior to the award of the degree sought through examination. Students without a sufficient level of language skill will be expected to enroll in such courses as may be necessary to fulfill this requirement.

b. Legal Foundations of International Affairs (2 semesters no grade, credit only). This course will realize the great synergies of international affairs within any law school. Its purpose is to provide a foundation, in law, for understanding the operation and limits of global systems of formal and informal governance. The course will introduce students to the basics of international law, transnational law, the law of non-governmental actors, and comparative law. The objective is to ensure that students understand the foundations, vocabulary and principles of the law underlying the study of international affairs.

b. Ethics (credit, no grade). This course is meant to complete the student’s introduction to foundational issues in international affairs. While the “Legal Foundations” course introduces students to formal and informal substantive organizational law, this ethics module will introduce students to appropriate behavioral norms in formulating, analyzing, advocating, implementing and monitoring policy. The course will consist of a series of lectures and modules that focus on the ethical issues derived from material covered in the core curriculum.


The interdisciplinary and cooperative potential of DIA will be realized beyond the core curriculum. The objective would be to combine this core training with specialized study in one or more areas. The curriculum also might draw upon regional or cultural subspecialties and language training.”

All candidates for the Master’s degree will be expected to select an area of concentration (AC). ACs should reflect the evolving emphases of policy makers and the interests of our students. Most will be identified as the substance of the evolving core course Introduction to Current Policy Challenges. Because of the rich diversity of course offerings typically offered at research university, for example, DIA Master’s candidates would have a large selection of ACs. However, the focus of DIA will be on the creation of a integrated set of course offering drawn from all other academic units within the university as appropriate. The DIA will provide a number of integrated AC courses of study to help guide candidates and to draw on the particular strengths of the university.

Drawing on the wealth of substantive, analytic, theoretical and professional courses already offered in the University, DIA will be able to offer its students the possibilities to choose an emphasis to meet virtually any interest—from geography, to information technology, to agriculture, law, journalism, the social sciences, education, mathematics, the hard sciences or any other substantive field. A list of courses throughout the University curriculum appropriate for cross listing is set forth in Appendix D.

Suggested Specific Areas of Concentration (“ACs”): Potential ACs are meant to be extremely flexible and multidisciplinary. Fields of study may include:
-Public international law
-International business and economic law
-International organizations
-Law and development
-International monetary policy
-International trade and commercial policies
-Political systems and theory
-Development economics
-Political economy
-Foreign direct investment
-International environmental issues, policy and governance
-Information and communication
-International negotiations and conflict resolution
-Geographic specialties
-Policy specialties (e.g., (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers).

The specific courses suggested for completing each of these concentrations, of course, would have to be developed at every institution. Once developed, students will also be encouraged to develop their own specialization based on their needs and desires.

Programs of concentration will be adopted in close cooperation with DIA core and affiliate faculty, who will act as program of study advisors to DIA Master’s students.


This proposal has certain implications for accreditation, but none for certification, or licensure. Accreditation may be obtained through a professional organization—the Association of Professional Schools of International Affairs (“APDIA”), information available at APDIA “comprises 29 member schools in the United States, ADIA and Europe dedicated to the improvement of professional education in international affairs and the advancement thereby of international understanding, prosperity, peace, and security. APDIA members work to promote excellence in professional, international affairs education worldwide by sharing information and ideas among member schools and with other higher education institutions, the international affairs community, and the general public.” Membership in APDIA is not required for the DIA to commence operation but is highly desirable and may be obtained after DIA begins operation.

Membership in APDIA requires conformity to a number of requirements. See APDIA membership qualifications available at These include the following: (a) an educational program of high academic quality; (b) a substantial and demonstrated commitment to the study of international affairs; (c) a basic commitment to graduate professional training; and (d) significant autonomy within a major university, e.g., as one would expect to find with a Law School or graduate Business School. These criteria can be demonstrated in a variety of ways. DIA is confident that it can demonstrate the existence of qualifications sufficient to afford it membership in APDIA. The APDIA describes these as follows:

The existence of these qualifications may be demonstrated by the following: a) significant programs of research and publications in international affairs; b) an integrated curriculum comprised of courses for the most part, if not exclusively, developed and located in the professional international affairs school; c) an integrated curriculum which combines professional training, the study of geographical regions, and the analytical tools of specialized disciplines; d) a record of educating graduates for and in cooperation with distinctive clienteles, including international affairs agencies, international business and financial corporations, international organizations, and the communications and academic professions; e) a substantial, if not exclusive, commitment to professionally oriented graduate education; f) a faculty for the most part integral to or designated for the professional school; g) a relationship to the parent university characterized by substantial autonomy as is usual to a professional school within higher education; h) programs abroad, including exchange and affiliation arrangements.” See


Internationalization of the legal curriculum is inevitable. Many law schools have already begun to respond to this change in the environment in which lawyers must be trained. On the academic side, research that remains tied to a particular local will be marginalized as increasingly parochial in the coming decades. There are several possible responses to legal internationalization. I have suggested one approach that I believe will pay significant dividends to law schools, the university of which they are part, and their faculty and students.

Monday, August 07, 2006

The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War

The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War

The last several weeks of warfare between Israel, on the one hand, and the Hezbollah coalition on the other hand (Lebanon, Syria, and Iran) has been of greatest value for the way in which it has exposed the core assumptions, normative framework, and patterns of logic of Western governments and the elites which claim a power to shape (or represent) democratic public opinion. The purpose of this essay is to explore the character and consequences of those assumptions, frameworks and patterns of logic by carefully parsing through a recent and representative editorial appearing in the New York Times (“A Truce for Lebanon,” The New York Times, August 7, 2006, at A20). This newspaper and this editorial were chosen as representative of something close to the center of Western norms (the New York Times is seen by many as politically liberal in the United States, and politically conservative outside the United States).

The purpose of this essay is not to advocate a particular political position or even a particular political result. The essay is grounded in an indifference to the outcome. But the process by which outcomes are generated, by which choices are made among parties to a dispute, and the way policy is shaped, reveals the way in which certain assumptions—really certain ideologies—tend to color the perception of any conflict and substantially affect the way in which the West (in this instance) responds to organized violence, and especially organized violence by non-governmental entities. The editorial serves as a reflection not only of the way in which the West judges this particular conflict (Israel-Hezbollah-Lebanon-Syria-Iran) but the way it has approached other conflicts it has deemed to be similar (Ireland-Basque Country-Bosnia-Kosovo-Chechnya-Iraq). It evidences the strange combination of fatalism and a merchant’s mentality, of power and impotence, and of formalism and legalism, that has defined Western policy making for the last several decades. This essay will sketch the contours of this framework through a close analysis of the editorial “A Truce for Lebanon” and suggest that while these assumptions are perhaps as good as any, they are neither inevitable nor necessarily effective.

The editorial starts with a slew of assumptions masquerading as statements of fact or as adjective laden description:

“It is now 26 days since Hezbollah and Israel began their latest combat—a very long time for the world to allow such a deadly conflict to rage in the Middle East powder keg. Yet the fighting still continues. Diplomats still dither over cease fire details. Innocent people still keep dying.”

“Enough. This is the week that the international community must impose a truce, to be followed, in short order, by a political settlement and the dispatch of a robust international force to patrol Lebanon’s oft violated border with Israel.”

The editorial then describes the nature of the settlement being negotiated for the combatants through the United Nations organized in two sets of resolutions.

“The first, based on an agreement over the weekend between the United States and France, would call on both sides to stop fighting, with their forces, at least for now, remaining in place. The resolution would also outline steps for achieving a permanent cease fire along with a more lasting political settlement. For now, the truce would be monitored by a beefed up version of the weak United Nations monitoring force already present in south Lebanon.”

“The second resolution, meant to follow in two to three weeks, would fill in the details of the political settlement, to be worked out in consultation with Israel, Lebanon and Syria, and would authorize the long tem international force.”

Well, that seems simple enough. But the editorial notes four difficulties which it styles “crucial details” that “remain to be worked out.”

1. Israeli forces remain on Lebanese soil until the new international force is deployed. This is a problem because it “has sparked sharp opposition in the Arab world.” In addition, it is bad because Israeli troops on Lebanese soil act as a “magnet for renewed Hezbollah attacks. Israel would, of course, respond, and that would be the end of any truce.”

2. The political settlement to be worked out must be “comprehensive” and “lasting.” The editorial identifies “such festering issues as Hezbollah’s refusal to heed U.N. requests to disarm, and Hezbollah’s claim, contrary to U.N. findings, that some of the Israeli-occupied Golan Heights is not part of Syria.”

3. “Troops must be lined up for the international security force.” But there is a rub of sorts. No nation will send troops to a combat area. So the area must be made combat free before military personnel will be committed. “None of these countries want to send soldiers if either Israel or Hezbollah is going to keep shooting. Therefore the political settlement has to be packaged so that both sides can claim some sort of victory.”

4. The last difficulty is describing the sort of settlement that might permit Israel and Hezbollah to claim a victory of sorts. For Israel, “that must include some assurance that Hezbollah will no longer be able to cross into Israeli territory and kidnap Israeli soldiers or launch its rockets against Israeli towns and cities. Hezbollah will probably claim victory from the fact of having stood up to a four week onslaught by the region’s mightiest army.”

Having offered no solution to these crucial issues, but apparently with every confidence that all can be resolved in a robust and effective way, the editorial concludes on a high note of sorts.

“This ugly war has already killed about 700 Lebanese and more than 90 Israelis. Close to one out of every four people in Lebanon has been routed from their homes. With the human price so high, this settlement must be built to last.”

Wow. So sure. So commanding. So clear. So simple. But when these statements are more carefully parsed they reveal a complexity and ambiguity far greater than the string of simple declarative sentences might suggest.

1. War is a transaction that must be carefully managed. The West now has a model for an ideal war—the war against Serbia for the liberation of Kosovo in the 1990s. That war was fought at a distance. It required little exposure to combat for the combatants. It sought to inflict tremendous physical destruction while managing casualties among the civilian population, that is, among the population that would have to survive in place after the end of the conflict. Killing by state actors is to be discouraged in war. Even those who “lose” the war might not be killed, They are better treated as criminals who ought to be captured and tried for the edification of the victors. The trial of Slobodan Milosevich provides the model. Targeted destruction, intense action over a short period of time, a focus on a state actor, and the imposition of a settlement appear to provide the outlines of a “legal” or at least close to ideal war. Deviation from this model becomes extremely costly for state actors—from Israel, to Sri Lanka, or the United States in Iraq. It is in this light that the nature of the condemnation implicit in the editorial can be understood: “It is now 26 days since Hezbollah and Israel began their latest combat,” “innocent people keep dying,” “this ugly war has killed about 700 Lebanese and more than 90 Israelis,” “one out of every four people in Lebanon have been routed from their homes.” War is not the problem, the management of the war is the issue for the West.

2. Violence is a necessary predicate to negotiation, especially for non-governmental organizations. Non-governmental organizations do best when they are capable of mounting some sort of sustained military operation. This is an old principle. Ironically enough, it was first successfully deployed in modern times was in North America, when the American colonists engaged in a primitive sort of guerilla war (for which Americans remain justifiably proud) that eventually brought a positive settlement of their conflict with the United Kingdom upon the intervention of France. The de-colonization movements in Latin America in the 19th century, and in Asia and Africa after 1945 also seemed to deepen this pattern. This was a key element of the IRA’s successful campaigns in the north of Ireland (see my Jerry Adams in Barcelona essay, ). The assumption implicit in the editorial appears to be that any combat that cannot be managed (see assumption 1 above) produces legitimacy in the group that cannot be managed sufficient to compel negotiation. Negotiation thus is a means by which conflict that deviates from the ideal may be managed further, a sort of second step in the rules of conflict. In this case, Israel’s inability to destroy Hezbollah within the time allotted and in the manner permitted must lead to the second stage—negotiation. The same rules, of course, apply to the United States in Iraq, Indonesia in East Timor, and to Sri Lank and the Tamils. The rule applies irrespective of ideology, underlying grievance, or unique history leading to the conflict.

3. Violence is a necessary predicate for legitimacy for non-governmental organizations. Just as violence is a necessary predicate to negotiation, so it appears to be a necessary predicate to legitimacy. Not so many months ago Hezbollah was vilified as a terrorist organization. Now, the Western media views it as a a significant and legitimate political player, as long as “Hezbollah’s refusal to heed U.N. requests to disarm” are eventually addressed. This is also a pattern well known in the West. Not only with respect to the situation in Ireland, but now also with the shape of negotiations and ultimate legitimization of ETA as a political actor in the Spanish Basque region. Thus violence serves not only as a way to manage conflict (principle 1 above) through negotiation (principle 2 above) within the community of states, but more importantly, it serves as the principal basis for legitimating the status of non governmental or quasi governmental combatants as actors about or with which these negotiations must occur. Thus the very curious turn of the editorial. It starts with a reference to a war between a state actor and a non state organization (treating it, in a sense, like a state actor for purposes of conflict management), and then suggests that there is a place for Hezbollah within the governance of Lebanon (perhaps as a political party, like Sein Fein). Indeed, though the editorial speaks of a political settlement with Lebanon, it focuses on the need for Hezbollah to “claim a victory.” And the nature of that victory is telling, “the fact of having stood up to a four week onslaught by the region’s mightiest army.” Here is conflated the first principle on managed warfare, the second principle on the relationship between conflict and negotiation, and on this principle on violence as a predicate for legitimating of non state actors.

4. “Innocent people” do not exist in total war. I have been struck by the increasing habit of Western elites to treat the ideal of the innocent civilian as a fetish at the same time that the West has constructed an internal mythology of total war against a common foe in which an entire nation rises to fight the enemy. The management of violent conflict, and its memorialization as the rules of war and humanitarian law, is predicated on the ideal that conflict is a bifurcated affair between an active and well identified military force and a more passive civilian population ready to accept the results of any conflict in a peaceful way. I have written about the western cultural roots of this notion of the innocent civilian, the sheep, to be managed and protected while the wolves fight among themselves according to rules meant to protect the property over which they fight. Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003, . At the same time, and especially since the Second World War, the West has been filled with the images of the great resistance fighter—in France against the German army, in the Philippines and China against the Japanese aggressor. Movies were produced in the United States, for example, lauding the way in which the population of a place could rise up and work together to defeat the enemy. Civilians shield combatants and fighters against the forces of the enemy, give them aid, and supply new recruits for the war effort. Even such benign movies as “The Sound of Music” suggest the necessity for total commitment, as the nuns hide the von Trapp family from the Nazis and help the family escape into Switzerland. Indeed, after the First World War, the West came to understand war, especially war between parties with irreconcilable objects, as involving the total commitment of their respective populations. It is true that, to some extent, the laws of war and human rights law were crafted thereafter to avoid the total war scenario, but still, those images linger.

5. Non state organizations that can engage in violence cannot be defeated. Underlying the editorial is the critical assumption that Hezbollah cannot be defeated. This is an assumption that underlies much of the discussion about the insurgencies in Iraq, the conflict in Sri Lanka, in East Timor and other places. Critical to this assumption, of course, is the understanding derived from principle #4 that in an era of total war, there are no innocent civilians. The Palestinians have proven this time and time again through their not well publicized and usually “unofficial” executions of “collaborators” and others deemed insufficiently wedded to a cause. The Viet Cong were also quite effective in this sort of total warfare. Hezbollah itself has suggested, as a defense to its targeting of Israeli civilian target (including areas populated by Muslims) that there are no innocent civilians in its war with Israel). Officially the Western media rejects this line, but in its editorials the same media implicitly accepts the logic of this understanding. Where a non-state actor merges with the people in the conduct of violent conflict, the assumption is that victory is impossible. The notion of total war, and of the commitment of the non military population to the goals and objectives of conflict, and to the duty of the non military segment to provide such aid as they can to the combatants, also suggested that, short of extermination or pacification, combat in such circumstances could not be won. The specter of post colonialism also contributes to this assumption of invincibility. But now this specter is substantially uncoupled from the de colonization movements from which it arose. The West continues to seek to expiate its guilt over a colonial period and the difficulties of de colonization during the middle half of the twentieth century. But now everything smacks of the colonial. It has become common to assume that it is natural, right and inevitable for even the smallest nation to win its independence from even the mightiest empire through violent action and the less violent expression of the will of those peoples for independence. Groups seeking self-determination have become adept at invoking the imagery of post colonialism to legitimate their enterprise. It has been especially effective in suggesting that the conflict cannot be contained. Wars of liberation, wars invoking postcolonial rhetoric are conflicts translated into Western sensibilities as violence backed by the mass of non-combatants. When localized violent conflict serves as the expression of the will of the non-combatants, the conflict can neither be contained nor the group defeated. Thus, Hezbollah will win for the same reason that the Viet Cong won in Vietnam, that the African insurgency movements were successful, that ETA might win in the Spanish Basque region or that the Tamils may not be defeated, or that Iraq will not be pacified by principles of democracy and pluralism. On the other hand, the peoples of Dafur may sink into oblivion because the Sudanese state is able to manage the conflict. Hezbollah will win because it is deemed to reflect the will of the people among whom it operates and through which it derives a substantial amount of its support. Hezbollah, in a sense, is Lebanon. It will not go away. It might be disarmed, but even that is hardly a necessary condition to its make up after its conflict with Israel is managed. The editorial thus speaks of “addressing” a “refusal to heed the U.N,’s requests to disarm.” It does not speak of an obligation to disarm, or the necessity of disarming for purposes of the greater part of the settlement. The process of disarming is sufficient to claim that a long-term solution has been found. This is the Irish solution in a context in which there is no claim to territory, other than the assertion by Hezbollah, as a sort of third party combatant, to seek the eradication of one state on behalf of another. But none of this is unique. Just distorted to suit the circumstances on the ground. This is a pattern of thinking that pervades Western responses to all expressions of self-determination by armed groups. In this sense, the global network of militarily capable non-state actors with political aspirations has the right of it when they understand that once the West believes that an insurgency group has become naturalized within the territory of a state, it will be impossible to defeat. These groups cannot be defeated precisely because they make it impossible to conduct a war against them within manageable limits. And such a war becomes unmanageable because of the ambiguity between combatants and non-combatants. The only solution is negotiation. And the reward to the non state actor is a certain legitimacy to proceed to the preservation of its ultimate goals.

6. International relations is predicated on the “Munich” principle—large states, or large blocks of states may always determine the fate of small states, especially when these are perceived to affect the interests of the larger states. In an ironic twist of sorts, the ghost o Adolph Hitler, and Hitlerian international relations theory, continue to haunt the Israelis. The principles of the 1938 Munich Conference—that the fate of small states can be determined by bargaining among larger states—appears to be alive and well among the media elite. I am not making the usual and silly analogy to Munich—an analogy highlighting the folly of appeasement in certain circumstances. Instead I refer to the far more robust principle that survived Munich and became entrenched in international relations and international law to some extent—the notion that third party states may impose settlements on others. In this case, of course, the third parties including France, Lebanon’s old colonial master, the United States, Israel’s patron, and bits and pieces of the Muslim nation, all of which seem to have a claim on the territory that includes the State of Israel and some of whom stand as patrons of Hezbollah within Lebanon (but not of Lebanon itself). Thus, “the international community must impose a truce,” and the principals must be “consulted.” Since the principals are incapable of managing their conflicts in a manner acceptable to the rest of the world community, then others will undertake that management function on their behalf. That the management involves non state combatants, states that are incapable of asserting power within their territories, states with ambiguous territorial borders, and states in gestation, makes no difference. Indeed, this state of affairs may make it even more tempting to interfere. The difficulty, of course, is that while states may like to interfere in the affairs of others, they tend to like to commit their own resources to the management of those conflicts without either some great reward or the assurance of little damage. Thus, soldiers will not police a truce that does not hold and negotiation must be structures to provide the possibility for both sides to “claim some sort of victory.”

7. Political settlements are transactions that can be managed, even in the face of irreconcilable positions. This reference in the editorial to the need to find a means of permitting the parties to a violent conflict to claim victory as a predicate to the continuation of the conflict through non violent means opens the most interesting window on Western thinking when it turns to the proposed methodology of conflict management. Management comes in two stages (a typical pattern of Western thinking). In the first, the violent expression of the conflict is stopped. In the second, the bargain to be struck among the relevant parties is negotiated. The format privileges the absence of violence. It privileges process—negotiation in this case. It privileges non violent arenas for conflict—the media (naturally enough), diplomacy, cultural manipulation of subject populations, propaganda campaigns to exert pressure on other states through a direct appeal to foreign citizens to begin to conceptualize a conflict in one of any number of plausible ways. But it does not directly privilege resolution. It can’t. Resolution requires belief that parties with deeply held irreconcilable positions can somehow overcome culture, education, interest, politics and advantage to haggle over a resolution the way merchants haggle over a transaction in fungible goods. This seems natural enough from a merchant culture, like that of the United States, built on principles of exchange, negotiation, fungibility, compromise. The editorial makes the assumption, so common in the West, that irreconcilable differences can be reconciled, that deeply held religious ideas about the shape of the world and the rights of people to occupy certain portions of it can be treated as an object for negotiation. But for non-state actors, for guerilla organizations, for states with deeply held views, that sort of negotiation is impossible. For these groups, negotiation provides a breathing space. It provides a venue for the articulation of beliefs on a broader stage. It provides a means of extending the conflict to political terrain. It does not suggest a place where ultimate goals are modified in the face of the needs of other groups. The IRA and ETA understand this sort of meaning of negotiation. The West does not. Or maybe it does but is willing to live with this ambiguity because it manages to purchase management in lieu of violence. That may be enough for the West. Time, demographic shifts, the results of warfare fought in the culture, religion, social and political spheres may serve to end the conflict as effectively as a war. And there will be no physical destruction to repair, and more people to continue to utilize in the situation that emerges. All the better. The West is convinced that cold war works best—we can outlive, outspend, outbreed, outculture the opponent. That was how the Soviets were defeated, so some have come to believe. Those principles can be generalized. Thus, the editorial can support a truce that puts ending physical violence as essential the sole practical goal. Negotiation then provides the cover for engaging in warfare by other means. Negotiation management thus does not require a commitment to reconciliation. It does not require a commitment to political settlement. It requires only a willingness to divert the conflict.

8. The United Nations provides an adequate cover for cold war activities among combatants during periods in which unstable settlements remain in effect. With negotiation a goal in itself, the West tends to look to a method of managing this form of conflict containment. Thus it comes as little surprise that the editorial would reflect the assumption that a multi national force can serve as a veil behind which conflict can be managed well. For that purpose, the U.N. has served well. But it remains only a veil. In Lebanon, the U.N. provided a cover under which Hezbollah was able to build a state within a state in southern Lebanon. It provided the cover necessary for the peaceful transfer of sovereign authority from Serbia to Kosovo. The U.N. provides protection for all parties and serves to create the space necessary for the continuation of conflict by other means.

9. Peace is the new form of war. Ultimately, the editorial reveals the fundamental turn of modern international approaches to conflict—peace is the new war. Perhaps this is both a welcome and inevitable consequence of the principles of conflict management that the editorial reveals. If conflict is inevitable, if negotiation might not lead to resolution of disputes, then an alternative method of conflict might better serve to minimize the effects of conflict on the management of productive populations. In a world in which conflict resolution is impossible, and the global exploitation of labor, capital and resources becomes an increasingly important component of international relations, the deflection of violent conflict into other forms of battle becomes a paramount interest of the global community. A political settlement is hardly important. Truth, fairness, right, justice become the forms through which the battle is fought on the fields of law, religion, culture, society and politics. The ultimate aims of the combatants are also irrelevant. Hezbollah and Israel would like to see each eradicated, though in truth Hezbollah is thinking in terms of large scale murder and Israel in terms of cultural or religious obliteration. Still, those are relative exterminations to a West now committed to a different model of peace, one in which a form of amorality has become necessary to preserve the structure of wealth maximizing systems being constructed on a global scale.

Thus, the New York Times editorial presents, unconsciously to be sure, a sort of Management Model of international relations and law. Its principles are efficient. Having determined that there is no worse thing than violent conflict, this Model constructs a basis of international relations in which conflict management is set as the supreme value and everything else is bent to the need to prevent war. It is a system with a moral compass, but one very different from that usually associated with the conduct of state relations. But ironically enough, it retains a twist of social Darwinism, without regard to moral value, it ensures that the strongest will ultimately win. Strength, however, may now be measured by means other than military capability where such capability is not sufficiently powerful to blast an opposition to extinction quickly and with a minimum of fuss. The future will reveal just how well this sort of system will work and the sort of character the world will take. What is clear, however, is that, slowly but without substantial impediment, global institutions are arising to create an institutional basis for implementing this Management Model of International Relations. The United Nations system, the internationalization of criminal and human rights law, the creation of an International Criminal Court to prosecute violations of those statutes, and a framework for the global regulation of economic activity all speak to a time when management without regard to values will dominate the approach to the resolution of disputes.