Sunday, January 28, 2007

Jose Martí and Cuban Ethnic Nostalgia for the Noble Savage

Like many people of his time, José Martí, the father of the Cuban independence movement of the 19th century, was fond of using a form of the literary trope of the “noble savage” in the service of Cuban political independence from Spain and socio/cultural independence from the United States. The “noble savage” themes were both popularized and turned to use in political theory in the 18th century by Rousseau (Jean-Jacques Rousseau, A Dissertation on the Origin and Foundation of the Inequality of Mankind (1755) (”Savage man, when he has dined, is at peace with all nature, and the friend of all his fellow-creatures. . . . . The case is quite different with man in the state of society, for whom first necessities have to be provided and then superfluities; delicacies follow next then immense wealth, then subjects, and then slaves.” Rousseau, id., Appendix). But the notion of the purity of the savage over the corruption of the civilized has a long history in the West, a culture always as fond of its sentimentalism as it has been of the civilization it enhances despite this nostalgic stance for an unencumbered past. (e.g., Ter Ellingson, The Myth of the Noble Savage. Berkeley: University of California Press, 2001).

In “El Hombre Antiguo de América y Sus Artes Primitivas”, written for the periodical, La América, April 1884 (in Conciencia Intelectual de América: Antología del Ensayo Hispanoamericano 261-264 (Carlos Ripoll, ed., New York: Eliseo Torrs & Sons, 1966)), Martí used the noble savage binary for a different political effect. Describing ancient humanity and primitive arts, Martí starts by suggesting that primitive art involved more than a love of beauty, it suggested the basic need of human communities to create and overcome (“la expresión del deseo humano de crear y de vencer” id., at 261). In this form, like its European form, art represented a passion for truth (“La pasión por la verdad fue siempre ardiente en el hombre.” Id.)). That passion for truth in arte is capable simultaneously of multiple levels of expression within any civilization (“En el espíritu del hombre están, en el espíritu de cada hombre, todas las edades de la Naturaleza” Id., at 262).

For Indian nations in America, Martí suggests, that blend of naturalism and genius expressed itself in the choice of the places for the expression of their art, choosing those priestly places of Nature (“los lugares sacerdotales de la Naturaleza” id., at 263) without disturbing the natural order. And thus a window onto the soul of the native American character—noble and impatient, with a love of adornment—which express the nomadic character, political immaturity and literature of the countries of the Americas (“y por ella lucen, y por ella pecan, el carácter movible, la política prematura y la literatura hojosa de los países americanos” id., at 263). What, Martí asks, is the nature of the intelligence of Americans if not something like a chalice open to the sun by the special privilege of Nature (“¿Qué es, sino cáliz abierto al sol por especial privilegio de la Naturaleza, la inteligencia de los americanos?” Id., at 263). Every nation (understood as ethnos rather than as demos as was common in the 19th century and increasingly common in the 21st century), Martí suggests has its own genius, but only the people of the Americas were able to clothe the natural with easy, brilliant and marvelous pomp (“sólo al hombre de América es dable en tanto grado vestir como de ropa natural la idea segura de fácil, brillate y maravillosa pompa” id).

And thus to the point: No más que pueblos en ciernes,--que ni todos los pueblos se cuajan de un mismo modo, ni bastan unos cuantos siglos para cuajar un pueblo,--no más que pueblos en bulbo eran aquéllos en que maña sutil de viejos vividores se entró el conquistador valiente, y descargó su ponderosa herrajería, lo cual fue una desdicha histórica y un crimen natural.” Id., at 264 (“Not more than nations in the making,--that neither all nations [understood here as ethnos] come into being in the same way, nor are a number of centuries enough for a people to come into being,--not more than nations still in their bulbs were those in which the valiant conquerors were brought in through by the subtle skill of ancient fortune hunters, carrying out their ponderous mechanics work, which amounted to a historical misfortune and a crime against nature.”). Thus the old European binaries—savage-civilized, advanced-barbarous, noble-savage, U.S.-Latin America—are inverted. The rape of nature and the destruction of indigenous culture are conflated. And that rape, that crime against the natural order is foundational—“los pueblos eran que no imaginaron como los hebreos a la mujer hecho de un hueso y al hombre hecho de lodo; sino a ambos nacidos a un tiempo de la semilla de la palma.” Id. at 264 (“these nations could not imagine, like the Hebrews that woman was made of a bone and that man was made out of clay, but that both were born together from the seed of a palm tree.”).

Crimes against the natural order are cultural as well as political. They implicate the foundations of the autonomy and self construction of every ethnos. Those who would violate this natural order engage in foundational criminal activity—they rob the world of its richness and diversity (“¡Robaron los conquistadores una página al Universo! Id.”). The implications for Martí naturally follow—cultural and political liberation, an necessary affirmation of the indigenous in Latin American culture, and a call for the development of that unique culture. And yet the supreme irony: from out of a European disquietude with the state of society and its aggressive advance by a man fully the creature of that culture comes a European literary/political trope in the service of the independence, broadly understood of Latin America in general and Cuba specifically. It is an easy step from the lyrical cultural naturalism of Martí’s eclogue to the nationalist post colonial rhetoric of Fidel Castro.

Saturday, January 27, 2007

Odious Debt, Systemic Illegitimacy, and the Integrity of Global Financial Systems

In this short essay I will try to convince the reader that Fidel Castro of Cuba, Hugo Chavez of Venezuela, and Evo Morales of Bolivia, the current public standard bearers of fight against the current norms of economic globalization in general, and its systems of financial capital in particular, will be good for business—that is good for the business of modern so-called neo liberal global capital markets in general, and for the business of lending to sovereigns, in particular.

These ideas were presented at a marvelous conference held on January 26, 2007, at the Duke University Law School, where the Duke Journal of Law & Contemporary Problems hosted a conference on “Odious Debts and State Corruption.” That conference, conceived by Professor Mitu Gulati, one of the most authoritative writers in modern odious debt theory, brought together a remarkable group of scholars from a variety of disciplines to broaden and deepen the discourse on theories of odious debt in public and private municipal law, public and private international law and transnational law.

Monday, January 22, 2007

Wal-Mart and Economic Due Process

In the great ideological campaigns over the extent and appropriateness of governmental intervention in the economic relationships of its citizens, all combatants seek something from the state. So-called liberals, of course, seek to regulate economic entities for the purpose of redistributing income, or limiting power.1 So-called conservatives come in a variety of flavors. Some would reduce government to a boundary keeper.2 Some would use the government more affirmatively, to protect the power of economic entities to exploit capital and restrain other factors of production, notably labor, customers and lenders, in their role in the affairs of such entities. This short essay considers this latter position in the context of recent efforts by the State of Maryland to essentially regulate one enterprise—Wal-Mart—for the benefit of its competitors and other stakeholders. The use of state power for private advantage, amply demonstrated by this affair, ought to serve as a caution against any rush to embrace an ideology open to the idea of the state as a necessary active regulator of economic activity. The essay was first presented as my contribution to “A Debate on Wal-Mart and Economic Due Process,” held as part of the Ninth Annual Federalist Society Faculty Division Conference, Washington, D.C., January 5, 2007.

Saturday, January 20, 2007

Global Law in American Law Schools: Prospects and Difficulties of Incorporation.

Many law schools today face the challenge of incorporating a transborder (international, comparative, transnational and foreign law) element into their curriculum. Some schools, like those of a century ago, when faced with the realities of transborder practices arising from the creation of national markets and practices within the United States, reacted by digging more deeply into their traditional state oriented curricula. And, indeed, there are law schools within the United States, that remain substantially unchanged—focusing deliberately on a curriculum limited by the territorial boundaries of the state in which they are established. Most law schools, reluctantly or not, and more or less enthusiastically, had embraced a “national law practice” model by the last third of the twentieth century. Today law schools face the same curricular challenges that they faced a century ago. But instead of confronting the challenge of a “national” practice, they confront the realities of a multi jurisdictional practice (Harold Hongju Koh, Luncheon Address (May 17, 2006), in American Law Institute Remarks and Addresses 83rd Annual Meeting, Washington, D.C. pp. 65-89).

Monday, January 08, 2007

God(s) Over Constitution

At the 2007 Annual Meeting of the Association of American Law Schools, held in Washington, D.C. January 2-6, 2007, the Section on Law and Religion sponsored a program panel—Religion, Religious Pluralism, and the Rule of Law—held on Wednesday, January 3, 2007. It was my good fortune to have been asked to participate on that panel along with an outstanding group of scholars in the field: Mark C. Modak-Truran (Mississippi College of Law), Rebecca R. French (SUNY-Buffalo), Scott C. Idelman (Marquette University Law School), Robin W. Lovin, (SMU, Perkins School of Theology), Elizabeth B. Mensch (SUNY-Buffalo), Michael Novak (American Enterprise Institute Scholar), and Steven Douglas Smith (University of San Diego School of Law).