Monday, July 30, 2007

Fides et Ratio: Religion and Law in Legal Orders Suffused by Faith

What follows is a written version of a talk given at the 10th Annual Conference of the Association for the Study of Law Culture and the Humanities, held at Georgetown University Law Center, March 23, 2007 for a panel entitled Law and Ontology.

Over the greater part of a millennium or so, the Christian world in general, and the Catholic Church’s Magisterium (see, e.g., Catechism of the Catholic Church, Part Three (Life In Christ), Section One (Man's Vocation Life In The Spirit), Chapter Three (God's Salvation: Law And Grace), Article 3 (The Church, Mother And Teacher), I (Moral Life and the Magisterium of the Church) paragraphs 2032-2040), in particular, has lavished a great attention on matters of faith and reason. In the encyclical Fides et Ratio, John Paul II reinvigorated a dialog on the power of a certain ontology (that is, of the nature of being or the kinds of things that have existence) in the production and disciplining of knowledge. John Paul II, Fides et Ratio, September 14, 1998. The current Roman Catholic Pope, Benedict XVI, whose work as Joseph Cardinal Ratzinger has been important in the life of the Roman Church for decades, has deepened that dialog.

I propose here a reverie on this very human project. I seek the condition of being lost in thought, to wander, and, by that wandering, to understand a little more, the world as others see it. This is not a linear exercise. It is not a forced march through time from a beginning to an end. This exercise is not for those wed to the ancient patterns of Hippocratic knowledge. I do not propose to identify a malady, review its symptoms, classify the aggregate of symptoms within a constructed cosmology, and apply a corrective (though I note that this ontological methodology is well beloved by the doctors of the flesh, of the law and of the Church). Nor do I propose this exercise as (an erroneous) exercise in the purported channeling of “higher” or “other” sources communicating with me (though I note that such overripe emotion substituting itself for both faith and reason is much beloved by others). Thus today’s exercise in illumination—a daydream, a wandering within a state of abstracted musing, an exercise in faith and reason.

This exercise is meant as an homage of sorts. It is an homage to the shape and power of a structure of understanding the world and the relationship of humans to it and to each other. This is laid out nicely in Fides et Ratio. Humans remain at the heart of, and describe the limits, of reason. Fides et Ratio, Introduction paragraph 1 (“It is a journey which has unfolded—as it must—within the horizon of personal self-consciousness: the more human beings know reality and the world, the more they know themselves in their uniqueness, with the question of the meaning of things and of their very existence becoming ever more pressing.” Id.). Thus the search for truth is both inward oriented (noting “the fundamental questions which pervade human life: Who am I? Where have I come from and where am I going? Why is there evil? What is there after this life?” Fides et Ratio, Introduction paragraph 1) and capable of a powerful effect on human organization. “In fact, the answer given to these questions decides the direction which people seek to give to their lives.” Id. And that is the difficulty. “It has happened therefore that reason, rather than voicing the human orientation towards truth, has wilted under the weight of so much knowledge and little by little has lost the capacity to lift its gaze to the heights, not daring to rise to the truth of being. Abandoning the investigation of being, modern philosophical research has concentrated instead upon human knowing.” (Fides et Ratio, Introduction paragraph 5). Faith is the means of overcoming those limits “to engage truth more deeply.” (Fides et Ratio, Introduction paragraph 1). “In reaffirming the truth of faith, we can both restore to our contemporaries a genuine trust in their capacity to know and challenge philosophy to recover and develop its own full dignity.” (Fides et Ratio, Introduction paragraph 6). Faith, and its instruction, then, plays a critical role in the ordering of knowledge, and its deployment in the construction of human organization. Those who can direct faith, then, control knowledge and the construction of human social, political and economic organization. (Fides et Ratio, Introduction paragraph 6 (“For it is undeniable that this time of rapid and complex change can leave especially the younger generation, to whom the future belongs and on whom it depends, with a sense that they have no valid points of reference.”)).

Fides et Ratio thus touches universals truths, and point to universal struggle. This structure forms the basis of religion, and the religion of law. It serves as our old, new and current covenants. The reconciliation of opposites, the assemblage of individuals into an organism grater than any of its parts, the elaboration of webs of power between and beyond those objects, that is the grounding of faith and reason in law and religion. It is to that project that the Roman Catholic Church has provided much illumination that will likely have influence beyond its context—now that is both faith and reason. But it is also one with which all universalizing systems of substantive conduct grapple. The shape and power of the structure of a world built on the reconciliation of binaries, its complexities and mandatory nature provides the foundation for critical modern conversations between the great universalizing systems today.

To enter the world of faith and reason is to step into a universe of binaries, and to seek the harmonization of contradiction. For John Paul II, the two "are like two wings on which the human spirit rises to the contemplation truth" (Fides at Ratio, Blessing) For Benedict, faith and reason is less poetic and more institutional (though not for that, perhaps, less beautiful to the believer—consider the incarnation of the Church through the Virgin Mary, the “Mother of the Church” John Paul II, Blessed Virgin is the Mother of the Church, L'Osservatore Romano, Weekly Edition in English, 24 September 1997, page 11). It is evidenced by the practices of the university and the coherence of Greek knowledge and Christian faith.

Within Western thought--Christian, Jewish, Enlightenment, Marxist, and post-modern—this pattern of thinking is well worn, and indeed, to some extent, foundational. The inversion and resolution of opposites has been the bread and butter of Western thought since the Greeks. Within law systems, this coherence of oppositional directions is also foundational. There is, in fact, little better way of understanding the law's urtext--the rule of law—than as a faith in an abstraction (a rule of community above person), the knowledge and love of which may bring people to the "fullness of the truth about themselves." (Fides at Ratio, at Blessing). The set up is clear—suppose a seemingly oppositional set of binaries and propose the falsity of the opposition and the unity of binaries within a greater singularity. Thus, as Cardinal Ratzinger, Benedict XVI noted that
"Faith and science, Magisterium and exegesis, therefore, are no longer opposed as worlds closed in on themselves. Faith itself is a way of knowing. Wanting to set it aside does not produce pure objectivity, but comprises a point of view which excludes a particular perspective while not wanting to take into account the accompanying conditions of the chosen point of view."

Joseph Cardnal Ratzinger, Pontifical Biblical Commission, On the 100th Anniversary of the Pontifical Biblical Commission, Relationship Between Magisterium and Exegetes, May 10, 2003, available . Faith and science, the Greek and the Christian, God and Humanity, law and morals/ethics, the Word, by the reconciliation of faith and reason converge within a single ontology. The only irreconcilable is truth and error—God and Satan—though both are united, in a sense, though a hierarchy in which truth is meant ultimately to prevail.

The Roman Church’s tussle with union of ratio and fides is directed to two struggles that are intertwined but distinct, and point to a third for which the first two provide an analytical template. The first touches on the long struggle between religion and secular universalist ontologies. The second touches on the equally long struggle within religion and related to the rationality of religion—the problem of faith in an irrational God or an irrational faith in a savage God. The third touches on the relationship of human systems, especially law systems, to reason and faith.

The current incarnation of the dialog is conceptually interesting if only for the ways in which it connects to current religious and political currents. Faith and reason, in the 21st Century touch on the dialogue between the religion and the post Enlightenment secular political order, on the one hand. The struggle is against “systems that espoused the cause of rational knowledge sundered from faith and meant to take the place of faith.” (Fides et Ratio, Chapter 4 Paragraph 45). Such separation of faith from reason, or the substitution of a rationalist faith to support reason, can only lead to bad things—Fides and Ratio defines these erroneous and faithless errors as rationalism, Benedict XVI, as Joseph Cardinal Ratzinger, nicely articulated its most important current incarnation in his successful crusade against so called “Liberation Theology.” See Congregation For The Doctrine Of The Faith, Instruction On Certain Aspects Of The "Theology Of Liberation" Aug. 6, 1984. The incompleteness of knowledge without context, of reason with faith, leads to error and the inability to build authentic community or to deploy knowledge appropriately, that is, not self destructively. These errors are described as ones of eclecticism (use of disparate learning without regard for their internal coherence or historical context, a rationalist Frankensteinism; Fides et Ratio at paragraph 86), historicism (denying the validity of an ahistorical truth, Fides et Ratio paragraph 87), scientism (rejection of “the validity of forms of knowledge other than those of the positive sciences, Fides et Ratio paragraph 88), pragmatism (a system that precludes “theoretical considerations or judgments based on ethical principles,” Fides et Ratio, paragraph 89), positivism (positing the meaninglessness of metaphysics, Fides et Ratio paragraph 88), and in postmodernity (described as a world embracing the absence of meaning, Fides et Ratio paragraph 91), to the greatest error of nihilism (characterized as the denial of the humanity and identity of the human being, Fides et Ratio paragraph 90). Nihilism is said to engender despair; positivism indulges the illusion that “thanks to scientific and technical progress, man and woman may live as a demiurge, single handedly and completely taking charge of their destiny.” Fides et Ratio, paragraph 91.

Faith and reason also touch on that increasingly important dialogue within Christianity, and between Christianity and other religions, particularly Islam. On the one hand, Catholic Pontiffs of the last generation have sought to draw on the similarities of faith to combat the faithless reason represented by secular society. See John Paul II, Apostolic Journey To Africa, Remarks On Meeting Of John Paul II With The Muslim Leaders, Nairobi (Kenya), 7 Mai 1980 (“Prayer, almsgiving and fasting are highly valued in both of our respective traditions and are beyond doubt a splendid witness to a world that runs the risk of being absorbed by materialism. Our relationship of reciprocal esteem and the mutual desire for authentic service to humanity urge us on to joint commitments in promoting peace, social justice, moral values and all the true freedoms of man”). On the other hand, the same Pontiffs have sought to combat faith without reason, both within Christian thinking and as part of the religious beliefs of others. “There are signs of a resurgence of fideism, which fails to recognize the importance of rational knowledge and philosophical discourse for an understanding of faith, indeed for the very possibility of a belief in God.” (Fides et Ratio, Chapter 4 Paragraph 55). Referring to the issue of religious terrorism, John Paul II noted:
Terrorism is often the outcome of that fanatic fundamentalism which springs from the conviction that one's own vision of the truth must be forced upon everyone else. Instead, even when the truth has been reached—and this can happen only in a limited and imperfect way—it can never be imposed. Respect for a person's conscience, where the image of God himself is reflected (cf. Gen 1:26-27), means that we can only propose the truth to others, who are then responsible for accepting it. To try to impose on others by violent means what we consider to be the truth is an offence against human dignity, and ultimately an offence against God whose image that person bears.

John Paul II, Message Of His Holiness Pope John Paul II For The Celebration Of The World Day Of Peace, 1 January 2002, No Peace Without Justice No Justice Without Forgiveness. John Paul II condemned irrational faith directly: “We also need to heed the question which comes to us from the depths of this abyss: that of the place and the use made of religion in the lives of people and societies. Here I wish to say once again, before the whole international community, that killing in the name of God is an act of blasphemy and a perversion of religion.” John Paul II, Address to the Diplomatic Corps, January 10, 2002.

And the dialog of faith and reason has great implications for our understanding of secular rule of law concepts, so beloved of that other “Congregation for the Doctrine of the Faith” (the global elite legal community), from a “faith” perspective. In many ways, rule of law discourse mimics the dialogue leading to the construction of a moral system in law, a substantive rule of law, grounded in a secular conception of human dignity and human rights at a level of governance above (and beyond) the state. See, e.g., Michael Rosenfeld, The Rule of Law and the Legitimacy of Constitutional Democracy, 74 Southern California Law Review 1307 (2001); Larry Catá Backer, God(s) Over Constitution, Law at the End of the Day, January 8, 2007. But the religious dimension of this construction is also becoming important in a world that appears to be moving with some determination toward a new socio-political accommodation with institutional religion.

The three fronts in the struggle for the reconciliation of falsely oppositional binaries—faith and reason, religion and secularism, and Christianity and Islam—came together nicely in Benedict XVI’s now notorious address to the faculties at Regensberg University in 2006. Benedict XVI, Apostolic Journey Of His Holiness Benedict Xvi To München, Altötting And Regensburg, (September 9-14, 2006), Meeting With The Representatives Of Science, Lecture Of The Holy Father, Aula Magna of the University of Regensburg, Tuesday, 12 September 2006, Faith, Reason and the University (Official revised version) (original version). I have discussed elements of this remarkable talk elsewhere. See Larry Catá Backer, Benedict XVI, Islam and the Politics of Abusive Discourse, Law at the End of the Day, September 16, 2006. I focus here on the reconciliation of binaries and the struggle against faithless reason and irrational faith.

For Benedict, modern secularism is unfulfilled because it represents a faithless reason.
The intention here is not one of retrenchment or negative criticism, but of broadening our concept of reason and its application. While we rejoice in the new possibilities open to humanity, we also see the dangers arising from these possibilities and we must ask ourselves how we can overcome them. We will succeed in doing so only if reason and faith come together in a new way, if we overcome the self-imposed limitation of reason to the empirically falsifiable, and if we once more disclose its vast horizons. . . . Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss".
Faith, Reason and the University, supra (original version). And it ignores the socio-cultural foundations of European rationalism. “We can also express this the other way around: this convergence, with the subsequent addition of the Roman heritage, created Europe and remains the foundation of what can rightly be called Europe.” Id. It follows that reason without faith id deficient in material respects. “The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time.”

Religion can serve as the point of reconciliation of faith and reason. But not all religion. An irrational religion can, in its own way, suffer the same deficiencies as a faithless reason. Referring to the production of the Septuagint and the reconciliation of Greek knowledge and Jewish faith, Benedict describes “A profound encounter of faith and reason is taking place here, an encounter between genuine enlightenment and religion. From the very heart of Christian faith and, at the same time, the heart of Greek thought now joined to faith, Manuel II was able to say: Not to act "with logos" is contrary to God's nature.” Faith, Reason and the University, supra (original version). Thus the problem of the irrational in religion. “Is the conviction that acting unreasonably contradicts God's nature merely a Greek idea, or is it always and intrinsically true? I believe that here we can see the profound harmony between what is Greek in the best sense of the word and the biblical understanding of faith in God.” Id. For Benedict, the answer is clear: God and reason are inextricably intertwined. He rejects the possibility of “a capricious God, who is not even bound to truth and goodness” (id.) as a legitimate expression of an authentic Diety. Thus religion, to be authentic, must be rational, and rational in a way that accords with settled notions of that term. It follows that any suggestion of members of the community of Islam of a possibility of divine irrationality and the power of violence, must be inauthentic. Benedict, like his religious predecessors, can search for an “authentic” Islam, created in the image of the Roman Catholic Church, even as he rejects the religious legitimacy of other variants.
I wish to reaffirm the Catholic Church’s respect for Islam, for authentic Islam: the Islam that prays, that is concerned for those in need. Recalling the errors of the past, including the most recent past, all believers ought to unite their efforts to ensure that God is never made the hostage of human ambitions. Hatred, fanaticism and terrorism profane the name of God and disfigure the true image of man.
John Paul II, Address on the Pastoral Visit in Kazakhstan, Meeting With Representatives of the World of Culture, Auditorium of the Congress Hall, Astana, Kazakhstan, 24 September 2001, available . This is a powerful temptation, and exercise. It is one that the secular West has recently indulged in repeatedly. See Larry Catá Backer, Of Political States and Soft Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007.

Central to the unity of Greek and Christian, faith and reason, Christianity and Islam, God and Humanity, is Logos.
“John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis. In the beginning was the logos, and the logos is God, says the Evangelist. The encounter between the Biblical message and Greek thought did not happen by chance. The vision of Saint Paul, who saw the roads to Asia barred and in a dream saw a Macedonian man plead with him: "Come over to Macedonia and help us!" (cf. Acts 16:6-10) - this vision can be interpreted as a "distillation" of the intrinsic necessity of a rapprochement between Biblical faith and Greek inquiry.”
Faith, Reason and the University, supra (original version). This synthesis in Logos, reason and self-communication, is the bridge to other faiths and other systems of ethics. “Christian philosophers can develop a reflection which will be comprehensible and appealing to those who do not gasp the full truth which divine Revelation declares.” (Fides et Ratio, paragraph 104). Communication permits collaboration, since “understanding and dialogue is all the more vital nowadays, since the most pressing issues facing humanity—ecology, peace and the co-existence of different races and cultures, for instance—may possibly find a solution if there is a clear and honest collaboration between Christians and the followers of other religions” and others sharing “at heart the renewal of humanity.” (Fides et Ratio, paragraph 104). And communication/collaboration might lead to evangelization. (Fides et Ratio, paragraph 103) (“This attention to philosophy too should be seen as a fundamental and original contribution in service of the new evangelization”). All of these resolutions may lead to the ultimate resolution of a universalizing creed—the assertion of a legitimate authority over the human community. “A philosophy in which there shines even a glimmer of the truth of Christ, the one definitive answer to humanity’s problems, will provide a potent underpinning for the true and planetary ethics which the world now needs.” (Fides et Ratio, paragraph 105).

These great themes haunt modern universalist rule of law systems as well. Modern intenationalist rule of law systems have been built on that greatest diálesis of the 20th century—between an overripe nationalism in Europe (and thereafter in the parts of the globe colonized by European states) and individual human dignity. It too seeks communication, and collaboration. It means to evangelize the community of nations and ultimately provide the community of states with a planetary system of political ethics and mores which reflect the beliefs and truths of humanity organized within the family of nations. It, too, seeks a union of reason (rechtsstaad) and faith (the sozialstaad or social welfare state norms), but now disciplined by the norms of the collective of humanity organized in states. Internationalism has added a dimension to constitutional rule of law now written in the constitutions of nations. Law systems, like religious ones, contemplate this union of reason (process) and faith (the overarching framework of constraints on power).

Thus a great immersion in fides and ratio, diálesis (controversy) and Logos. This immersion in fides and ratio at last prepares us to nestle in the embrace of a knowledge of unity from coupling. This coupling suggests the infinite. But the allusion to coupling is telling. The embrace of faith and reason is restless and fickle—it is temporal and partial. Within its embrace, and at the moment of climax, it looks within to find its universe of form and meaning. It seeks to join together for the approach to Truth. Logos, truth, then serves as both the projection outward and the limiting barrier of faith and reason.

Fides thus suggests the foundation of Truth—it is bounded, but within its boundaries embraces the world. Logos, understood as encompassed within the corporeal body of Christ in the world, suggests this conception of Truth. It is contained within discernible limits (the body of Christ or of doctrine or belief, etc.)) yet within this membrane, encompassing all (God).

Faith is the great disciplinarian. But faith itself is the verb, a mechanics which incorporates those postulates and assumptions that together constitute lived Truth in reason. Thus the body of Christ as faith and reason. “Logos means both reason and word - a reason which is creative and capable of self-communication, precisely as reason. John thus spoke the final word on the biblical concept of God, and in this word all the often toilsome and tortuous threads of biblical faith find their culmination and synthesis.” Faith, Reason and the University, supra (original version).

Beyond truth lies the irrational, the disordered, the outlaw.

Beyond truth is inversion of a necessarily ordered world.

Beyond truth there is. . .nothing.

And in this Benedict is right. Self-constituted communities are bounded by the Truth of their constitution, a truth that necessarily embodies faith and reason in the sense that Benedict describes. Political communities like religious and social communities, are bounded by the Truth of their constitution—rationally bounded by rules and understandings within which the infinite is possible. Faith provides the ongoing principles of that community—its morals, ethics and theology. Reason serves as the means to incorporation and application of those principles.

Where the community of the faithful includes the world, the internal workings of faith on reason becomes the paramount relationship. The body of the Divine defines the extent of reality; it serves without limit. But in a world in which multiple communities of the faithful exist, and where the scope of faith communities are functionally differentiated (political, economic, etc.), then faith and reason acquire a different direction—communication, collaboration, and evangelization (diálesis) rather than Logos. This is a world with many bodies of the Divine, internally infinite, yet externally limited by the body of faith. In this world, and within that diálesis, an overcoming of parochial faith (one that is inwardly infinite and outwardly limited) might be possible, or power relationships played out. I suspect that faith and reason in this century produces a bit of both.

Indeed, from Peter Fitzpatrick’s excellent discussion of the “Laws of Thomas Hobbes,” presented at the 10th Annual Conference of the Association for the Study of Law, Culture and the Humanities, Georgetown University Law Center, Washington, D.C., March 24, 2007, it is possible to illuminates parallels in the construction of the body of “Law” with that of the body of “faith” elaborated in Fides et Ratio. Fitzpatrick starts his reading of Hobbes’ Leviathan in the usual way: positing that the state of nature gives rise to natural laws. The primal contract, the primal covenant, produces the state from out of nature. But that is the essence of the rule of law. Leviathan is limited by the nature of the covenant ceding power (in this case essentially to protect life), and thus limited by the natural law from which it arises. Higher (or lower) law thus constrains the sovereign, the breach of which will (eventually) bring the sovereign down. We move here from a reading of Hobbes as advocating absolute sovereignty, to one of the sovereign as constrained—beyond the boundaries of sovereign authority there is nothing, yet within the authority of the sovereign the possibilities are infinite. Thus the power of reason is constrained by the limits of faith: Leviathan (and law systems generally), like faith communities, are constrained within its body (borders). Yet within those borders there is unconstrained freedom of the sort described in Fides et Ratio (or unrestrained power to the sovereign authority). These borders are territorial (physical borders), temporal (finitude), topical (limited by scope or subject matter), or vertical/foundational (rule systems constituting the sovereign; the body of God; Logos). And thus the relation between law and religion in faith and reason in this system: law is shaped by popular desire, operating within its collective boundary norms. Popular desire is shaped by religion (which operates within its own boundary norms). In secular political systems, doctors of religion may not subvert the boundary norm systems of law. Still, they assert a certain authority on civil society (by shaping popular desire). Religion in this way exerts a powerful parallel and indirect effect on law.

Consider this in the context of the diálesis between the Hellenized Christian faith of which Benedict speaks, Islam and the secular. For the Hellenized Greek Islam may be an exemplar of the irrational faith because it is unmoored to Truth. As a consequence it can rationally conflate Truth and violence. Secularism is disordered because in rejecting Truth (faith) it serves other (and lesser) masters. This leads secularism away from truth and ultimately towards the irrational.

For Islam, Christian truth is itself a subterfuge and a blasphemy. It purports to channel the will of God within parameters to which God may not have consented and which leads away from Truth as submission to the will of God. Secularism is disorder. It is a mockery of the divine order and its inversion.

For the secularist, Christianity is artificially constrained and itself inverted, positing the end point of reason as its starting point. Islam is the sum of its actions—violence at times. That violence is real, and reason suggests it ought to be appeased and feared. Yet as its violence diminishes so does its power.

Power relationships in the future will have to confront faith and reason on these terms. There is a bit of irony in the terms Benedict XVI confronts these issues.
“The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.”
Faith, Reason and the University, supra (original version). Diálesis in this century may require all systems of Logos to confront both the infinite possibilities within their frameworks, and the limitations of those possibilities across frameworks.

Saturday, July 28, 2007

The U.N.'s Global Army and Institutional Autonomy

Scandal has always been the lubricant for major structural change. The United Nations has had its share of scandals in recent years. Among the more troublesome scandals has been that touching on the gross misconduct of U.N. Peacekeeping troops. Allegations of criminal activity by U.N. troops have been alleged, and are being investigated, all over the developing world, including in the Democratic Republic of Congo, Haiti, Cambodia and Ivory Coast.

And the solution? Create a standing army independent of the Member States that supply the troops and subject to the direction of the United Nations through some mechanism to be determined. Thus says the UN Special Rapporteur on Torture, Manfred Nowak. See U.N. Requires Better Peacekeepers, BBC News Online, July 28, 2007. Mr. Nowak made two points. The first, and least surprising: the selection process for peacekeeping troops and their oversight need substantial revision to be made more strict. Mr. Nowak suggested that the problems in peacekeeping have grown since military participation has been democratized and broadened. This was expressed as "concerns about the quality, training and ethics of peacekeepers were growing as developing nations with questionable human rights records were being asked to contribute troops." U.N. Requires Better Peacekeepers, supra. Among the problems: sexual crimes by Moroccan troops, and torture by Nepalese. U.N. Requires Better Peacekeepers, supra.

And indeed, there is a substantial rule of law element in this comment suggesting a growing maturity and autonomy within the institutional structures of the U.N. The comment reflects a view that the U.N.'s operations, especially its military operations, might no longer be viewed strictly as intergovernmental in character. As such, the operational unit itself, as an autonomo0us collective, rather than the governments which contribute to the operation separately, ought to be responsible for the conduct of military operations. As the Catalan professor Jaume Saura suggested recently, "whenever international humanitarian law is otherwise applicable, and whenever international organizations actually have the capacity to implement it, UN peacekeepers must observe this body of law. " Jaume Saura, Lawful Peacekeeping: Applicability of International Humanitarian Law to United Nations Peacekeeping Operations, 58 Hastings Law Journal 479-532 (2007) at 480 ("there is little doubt that the United Nations as a legal entity will bear international responsibility and will be obliged to make reparations for any injury caused by such breach"). Such institutional autonomy, were it to be effective in form or substance, shifts power from the states which make up what had been a purely intergovernmental association even as it changes the character of the association.

The second, and perhaps more interesting solution follows from the inclination toward autonomy reflected in th first: "Mr Nowak said one solution was finally to give the UN its own professional standing army." U.N. Requires Better Peacekeepers, supra. This proposal is not new. There have been periodic calls for some sort of professional military establishment under the control of the U.N. All such proposals have met strong resistance from the United States. See Experts Call for UN to Take Sides, BBC News Online, August 23, 2000. By 1997, several developed states had proposed some form of international autonomous military force. See Frederick Bonnart, Opinion: It's Time for a Standing U.N. Rapid Reaction Force, International Herald Tribune, January 22, 1997. For resources in favor of such deployment, see Global Policy Forum, UN Standing Force.

From the U.N.'s perspective the second idea is logical. As the institution has sought to assert greater autonomy (though lately not very successfully at times), it has sought those institutional trappings that might permit it to project power independent of the ember States that constitute its community. Peacekeeping has become a larger portion of the UN's business since the 1990s. The spread of political violence, and the increasingly accepted notions of a rule of law system that bind states in their conduct with each other, has tended to shift responsibility for the management of political violence and the settlement of disputes from individual states to the "community of nations." Of course there have been telling lapses (the invasion of Iraq in 2003 stands out). It stands to reason that the institution responsible for these sorts of things would seek greater autonomy. That appears to be the nature of evolving transnational governance institutions in this century. See Larry Catá Backer, Principles of Transnational Law: The Foundations of an Emerging Field, Law at the End of the Day, March 9, 2007.

But in a world of economic privatization and globalization, states concede substantial power, at least as measured from the perspective of the political ideologies of the first half of the 20th century. A military unit would permit the United Nations to project power like a state. That would necessarily produce a greater shift of power from states to the community of states operating independently of its members--and indeed against the interests of some of its members some of the time. This is a concession of power and autonomy that neither the United States nor the People's Republic of China would likely greet as a positive development. But the newly empowered civil society stakeholders have a different view. Derogations of state power might well serve their interests by shifting power both incompletely and away from the state. International private actors, from multinationals in need of transnational stability for their business to international civil society organization, like Oxfam, and Human Rights Watch, seeking to implement their global vision in a word order in which their participation is augmented, might be more amenable to an international military force overseen by the U.N. The realities of globalization, and shifts in power balances within the international community, tied with a greater acceptance of a rule of law regime for international governance and of the need to manage conflict by consensus make clear that we have not heard the last about a global military force.

Cotton and Sovereignty: Brazil, the US, the WTO and Cotton Subsidies

The World Trade Organization is sometimes understood as largely a an intergovernmental organization. Its member states meet to try to arrange a global system within which private trade among their citizens can take place. This is true enough. But the WTO is increasingly building an autonomous institutional framework through which existing multilateral agreements might be implemented. That these institutions are quasi judicial in form makes them more powerful in the Western institutional mind.

In June of this year, the Doha round of multilateral trade talks collapsed amidst a bit of bitterness. Latest World Trade Talks Collapse, BBC News Online, June 21, 2007 ("Brazil and India blamed the latest failure on the EU and US not offering enough concessions on agriculture. The EU and US countered that Brazil and India were not opening up their markets to Western manufactured goods"). In the face of these setbacks, there was fear that the process of building a multilateral framework for trade--based on the management of impediments to trade imposed by some states--would be stymied.

But it seems that while the political and intergovernmental aspect of multilateralism has been slowed, its judicial aspects continue to "make facts." Thus it was that Brazil was able to take an additional step toward procuring agricultural concessions from the United States, at least in connection with American cotton subsidies. Brazil Claims WTO Cotton Victory, BBC News Online, July 27, 2007 (reporting that the WTO decision determined that "The changes made by the US were insufficient to bring the challenged measures - certain support payments under the 2002 Farm Bill and export credit guarantees - into conformity with US WTO obligations.").

And of course, this quasi judicial determination appears to move forward (in an unsystematic way to be sure) "discussion" on agricultural concessions in fact. Brazil had accused the U.S. "of unfairly helping its farmers, distorting the price of cotton and make it harder for developing nations to compete." Brazil Claims WTO Cotton Victory, supra. This was precisely the point in which intergovernmental talks had been stalled. "Subsidies, particularly those paid to the US cotton industry, have been at the heart of WTO trade talks that have been sputtering and stalling." Brazil Claims WTO Cotton Victory, supra.

The American reaction was telling: "US Agriculture Secretary Mike Johanns had a different view, adding that the US would work "very very hard" to protect the financial payments it made to cotton farmer." Brazil Claims WTO Cotton Victory, supra. A curious conundrum for American law and American business. On the one hand, the WTO system, a multilateral system fashioned after American desires to develop a global private economic system demands that states take a secondary role to that of private market actors. On the other, the majesty of American rule of law notions, as traditionally applied, make the attainment of global economic policy difficult at best. Treaties, after all, are no more compelling than federal statutes (to the extent of their conformity with American federal constitutional constraints). And they are subject to the will of Congress representing the political state. In a sense, the political theory of American rule of law constitutionalism works against American economic globalization goals. Unless of course, our goals are merely to secure the greatest possible concessions while retaining the greatest measure of advantage. While this may be a worthy political goal, it is at odds with the rule of law system inherent in the WTO itself--constituting itself as something that seems to be searching for a measure of autonomy from the intergovernmentalism from which it arose. And so .

Friday, July 27, 2007

Brazil Has Come of Age: Castro on Brazil as the New United States

Fidel Castro has used the occasion of the Pan American Games held in 2007 in Rio de Janeiro to think about the development of Brazil and its new role in Latin America. It is interesting to work through his ideas as they relate to international relations, and the construction of an international rule of law order. See Fidel Castro Ruz, Reflexiones del Comandante en Jefe. Tercera reflexión sobre los Panamericanos. ¿BRASIL SUSTITUTO DE ESTADOS UNIDOS?. 23 de julio del 2007 (for the English version click here).

The statement, quite short, focuses on the development of global markets for labor, and specifically markets for sports labor. This market place is private as has been built on the assumption that states will not seek to create monopolistic sub markets for labor within their territory. Within this marketplace, Brazil tends to be a net importer of labor. So is the United States, and Germany as well. Developing countries tend to be net exporters of sports labor. Why? Because labor, like capital, tends to flow (when unimpeded) to those places where it might maximize its return.

Thus, Castro starts his discussion:

A short while ago I was saying about the brain drain that is disgusting. A bit later, a good offensive player on the Cuban handball team showed up wearing the uniform of a professional Sao Paulo team. Betrayal for money is one of the favorite weapons the United States uses to destroy Cuba's resistance. The athlete was a higher education student; he would be a graduate with a degree in Physical Education and Sport, an honorable job. His income is modest, but his professional training is highly appreciated; whatever the sport or specialty, if they attract a large audience and commercial publicity or none at all they are still useful for human growth.
Fidel Castro Ruz, Reflexiones del Comandante en Jefe. Tercera reflexión sobre los Panamericanos. ¿BRASIL SUSTITUTO DE ESTADOS UNIDOS?. 23 de julio del 2007 (for the English version click here).

Castro acknowledges that in a system seeking a singular global labor market, labor will tend to follow returns. In a global labor market, talent will flow to those places where labor can maximize its earning. For states, like Cuba, that tend to have low wages, it is difficult to keep local labor, even when they seek to offer non-financial compensation. This mat be galling, especially for states like Cuba, that invest a tremendous amount of state resources on training labor. For such states, it appears that that wind up subsidizing the development and training of labor factors of production for exploitation by developed states, without any hope of realizing a return on their investment. Or even of realizing their costs to produce the athlete.
This relentless plundering of brains in South countries dismantles and weakens programs aimed at training human capital, a resource which is needed to rise from the depths of underdevelopment. It is not limited to the transfer of capital; it also entails the import of grey matter, which nips a country's nascent intelligence and future at the bud.
Fidel Castro Ruz, Reflexiones del Comandante en Jefe. EL ROBO DE CEREBROS. 17 de julio del 2007 (in English click here). Ironically, Castro uses World Bank research for the purpose of elaborating his own theories. See Fidel Castro Ruz, EL ROBO DE CEREBROS, supra, 17 de julio del 2007 (in English click here) (citing Richard H. Adams, Jr., International Migration, Remittances and the Brain Drain: A Study of 24 Labor-Exporting Countries, World Bank Poverty Reduction and Economic Management Network Policy Research Working Paper 3069 (June 2003)). "" Global labor, then, like global capital, serves the interests of the developed states, shifting the costs of development onto the least developed states, and creaming the benefits to augment their own wealth. See Backer, Larry Cata, "Ideologies of Globalization and Sovereign Debt: Cuba and the IMF," Pennsylvania State International Law Review, Vol. 24, 2006.

But, for Castro, global labor markets violate the national principle of classic Marxist Leninist thought. If socialism is national, then efforts to uncouple socialist development of production from the state violate principles of rational economic development. On this basis, it can be no surprise that Castro speaks of the mechanics of global labor movements the way mainstream religion thinks of religious cults: "In Germany, there is a mafia devoted to selecting, buying and promoting Cuban boxers in international boxing matches. It uses sophisticated psychological methods and many millions of dollars." Fidel Castro Ruz, Reflexiones, supra. Thus, criminality is conflated with passivity. The idea is that labor cannot exercise its own free volition in the face of the imperatives of capital not otherwise controlled by the collective of individuals organized as states. As a consequence, though individuals think they are exploiting the global labor market, they are, for Fidel Castro, merely objects of manipulation--to be bought and sold in the market. See Fidel Castro Ruz, Reflexiones del Comandante en Jefe. Cuarta reflexión sobre los Panamericanos. LA REPUGNANTE COMPRAVENTA DE ATLETAS. 27 de julio del 2007 (in English here).

For Castro, public rule of law systems must be state centered. The purpose of economic activity--of which capital and labor markets form a part--is for the benefit of the state, and through the state, for its citizens. That requires strict control of both capital and labor markets, political control of economic activity. Private markets, and private rule of law systems, are incomprehensible, or at least not legitimate. Private law systems cannot escape the imperative of political control. As such, private systems--global labor and capital markets grounded in free movement--must serve the interests of the states form which the bulk of the activity is controlled.
As such, "The trend towards the privatization of knowledge and the internalization of scientific research companies subordinated to big capital has been creating a kind of "scientific apartheid" which affects the vast majority of the world's population." Fidel Castro Ruz, Reflexiones del Comandante en Jefe. EL ROBO DE CEREBROS. 17 de julio del 2007 (in English click here).

Thus, Castro describes the system in terms of theft. What in the English version of the "Reflextion" is rendered as the passive "brain drain" (see above) is rendered in the original Spanish literally as a more active "mind theft" ("robo de cerebros")
Fidel Castro Ruz, Reflexiones, supra. And he characterizes the action by those who exploit the global labor market in sports as traitors. What in the English version is translated as "betrayal for money," in the original Spanish version is better rendered as "treason for money" ("La traición por dinero"). "What, from the technological and economic points of view, has been the worst problem faced by poor countries? The brain drain. What has been their worst problem in patriotic and educational terms? Talent theft."Fidel Castro Ruz, Reflexiones del Comandante en Jefe. Cuarta reflexión sobre los Panamericanos. LA REPUGNANTE COMPRAVENTA DE ATLETAS. 27 de julio del 2007 (in English here).

It is in these terms that Castro understands a rule of law: and fleshes out his long held views of the illegitimacy of globalization based on private law systems. "Last Sunday, July 22, around noon, the sad news was received that two of the most outstanding athletes in boxing, Guillermo Rigondeaux Ortiz and Erislandy Lara Santoya did not show up for the weigh-in. Very simply they were knocked out by a punch to the chin, paid with American bills. No countdown was needed."
Fidel Castro Ruz, Reflexiones, supra. Where economics and politics cannot be separated, globalization is possible only through state planning, private systems cannot be legitimate. This basic understanding drives much of what Cuba is attempting. It explains the differences in view of what constitutes law and its rule. It has given rise to the new experiment in regional trade associations--the ALBA (the Bolivarian Alternative for the Americas).

And for Castro, Brazil occupies a curious place in the constellation of global labor markets. It is clear that Brazil is joining the group of states that can afford to exploit global labor markets for its own advantage. At the same time, its own historical and economic experiences should make it sensitive to the hidden political subordination inherent in global labor markets.
It is totally unjustified to seek political asylum. If Brazil is not the final marketplace, it makes little difference. There are wealthy countries in the First World who would pay much more. The Brazilian authorities have declared that whoever wishes to defect must prove the real necessity for seeking asylum. It is impossible to prove the opposite. Even beforehand, we know their final destination as mercenary athletes within a consumer society. I think that they have offended Brazil by using the Pan American Games as the pretext for their self-promotion. In any case, we consider the declarations of the authorities to be useful. Fidel Castro Ruz, Reflexiones, supra.
Again, something is lost in the translation. The English version speaks of those seeking political asylum. The Spanish version describes those who desert ("los que desertan") the nation. Castro expresses the ope that the change in official Brazilian policy suggests that Brazilian authorities are offended by the spectacle of well trained athletes from developing states deserting their homeland for financial gain. But the facts he relates suggests that Brazil has joined the family of nations that find global labor markets in sports a valuable tool of national policy.

On the Anniversary of the Attack on the Moncada Barracks: Cuba Moves Forward towards its Chinese Future

July 26 marks the Día de la Rebeldía in Cuba, commemorating the failed attack on an outpost barracks by Fidel Castro and his band of rebels against soldiers of the Batista regime. That failed attack marks now the beginning of the Cuban Revolution whose victors continue to administer the Cuban state.

This year Raul Castro, the First Vice President of the Cuban Republic, delivered the official address to mark the anniversary. See Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros, General de Ejército Raúl Castro Ruz, en el acto central con motivo del aniversario 54 del asalto a los cuarteles Moncada y Carlos Manuel de Céspedes, en la Plaza de la Revolución Mayor General Ignacio Agramonte Loynaz de la ciudad de Camagüey, el 26 de julio del 2007, "Año 49 de la Revolución" (in English here). The speech is worth analysis for emerging themes of Cuban engagement in the world and the evolution of its own internal governance structure.

The speech is short (as one tends to measure those things in Cuba) and can be divided into four broad themes:

1. The United States as the greatest exporter of terrorism in the Americas. The rhetoric of the American administration's war on terrorism has had one perhaps unintended consequence. The rhetoric itself has been inbcreasingly directed back to the United States by the enemies of its government. This is, of course, the nature f rhetoric. It's context, its ideology, is eminently contextual. In the hands of the United States, the great intellectual campaign against terrorism is directed mostly at Islamist fundamentalism. In the hands of Marxist Leninist Cuba, the same rhetorical devices are deployed against the United States itself.
Before the mortal remains of each of the 3,478 victims of terrorist acts directly organized, supported or allowed to happen by the United States authorities; before the fallen in defense of the Homeland or in the fulfillment of their internationalist duty, our people confirmed their commitment to their heroes and martyrs. . . . In essence, this has been the last half century of our history. There has been not one minute of truce in the face of the policies of the United States government, aimed at destroying the Revolution.
Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version). Raul Castro has inverted the usual course of analysis. In a war in which the United States has dedicated itself to the overthrow of the Marxist Leninist revolutionary government of Cuba, the Cuban hierarchy means to deploy the imagery and rhetoric of anti terrorism against the United States. The object, of course, is to invoke rule of law notions against the United States. Cuba seeks to de-legitimate American actions against Cuba on the basis of a suggestion that such actions are criminal and violate international law norms. Thus, Raul Castro describes the current United States administration in terms that the Americans have used to describe the regimes it overthrew in Afghanistan and Iraq. For Raul Castro, the Buh Administration is described as a "erratic and dangerous administration, characterized by such a reactionary and fundamentalist philosophy that it leaves no room for a rational analysis of any matter." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version). Indeed, Raul continues to embellish the usual description of the American economic embargo (el bloqueo) as constituting "a relentless war against our people, as the current administration of that country is especially bent on finding even the slightest of ways to harm us." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version). While the rhetoric of the embargo and American hostility as as old as the Revolution, the increased emphasis of a conflation of anti--terrorism, American activity, and lawlessness is new. The usual American response, focusing on the anti-democratic structure of the Cuban state apparatus, will be less effective in countering the refocused Cuban charges. Americans will have to begin to device arguments that its own actions may be measured against the rule of law standard it has asserted in its action sin other places. Failure to do so (and it will not be enough to say that it is right because the United States is doing it) could continue to limit the effectiveness of American intellectual global campaigns.

2. The transition of leadership in Cuba proceeds smoothly without abandoning the fundamental ideas of Fidel Castro. Raul Castro devotes a substantial portion of his address to an elaboration of the idea that nothing has changed since his brother was forced by illness to transfer power. Indeed, the transition has proven to be no transition at all. "The past twelve months have constituted a remarkable example of our people’s maturity, steadfast principles, unity, trust in Fidel, in the Party and above all in themselves. Despite our deep sorrow, no task was left undone. There is order in the country and a lot of work. The Party and the Government bodies are functioning on a daily basis in the collective search for the most effective response possible for every problem." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version).

3. The growth of Cuba's military capabilities. With Raul Castro and the Fuerzas Armadas Revolucionarias (FAR) in control, the state has begun augmenting its military capabilities. Raul Castro appears to be warning those who would use the transition as a period to prepare for the violent overthrow of the regime, that it might be more costly than anticipated. "Hundreds of thousands of militiamen and reservists of the Revolutionary Armed Forces, together with officers, sergeants and soldiers in the regular army have carried out Operation Caguairán, allowing for a substantial increase in the country’s defense capability, attaining levels of combat readiness that are superior to those of any other period." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version).

Like China, Cuba is focusing on its military to provide the institutional skeletal structure on which it can develop. "We cannot fool around with defense! The Commander in Chief directed and reaffirmed it yet once again just a few days ago. For us, as I have said so many times, avoiding a war is tantamount to winning it, but to win it by avoiding it, we must sweat a lot and invest quite a few resources." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version). Borrowing from the Chinese, the Cubans plan to enlist its population in the defense of a total war against a potential invasion likely (in their planning) to be sponsored by the United States. "Operation Caguairán will carry on in the next months. It will allow us to train about a million compatriots and will have as its crowning glory the Bastion 2008 Strategic Exercise which will take place at the end of the year." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version).

4. On the nature of Cuba's planned engagement with globalization. In an important segment of the speech, Raul Castro outlined the plans of the state apparatus for engagement with globalization. The foundation for this segment of the address was a long and detailed discourse on internal economic reorganization. The focus was on the bureaucracies of central planning for the production and delivery of milk on the Island. As Raul Castro describes it, central planning might become more focused on frameworks and less on the minutiae of regulating the production of goods. The emphasis is on the state, the centrality of the socialist principle of public benefit, and the subordination of private efforts to this conception of public benefit.

That is the template that Raul then uses to describe the plans for Cuba's outward engagement.
In this connection, we are currently studying the possibility of securing more foreign investment, of the kind that can provide us with capital, technology or markets, to avail ourselves of its contribution to the country's development, careful not to repeat the mistakes of the past, owed to naivety or our ignorance about these partnerships, of using the positive experiences we've had to work with serious entrepreneurs, upon well-defined legal bases which preserve the role of the State and the predominance of socialist property.
Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version). The state remains the foundational object of economic activity. The state, and the political community it represents, also defines the extent of such economic activity. "Wherever it is rational to do so, we must also recover domestic industrial production and begin producing new products that eliminate the need for imports or create new possibilities for export." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version).

For this purpose, Raul suggests opening up to globalization through the newly created socialist alternative to regional trade associations--ALBA. Greater reliance, perhaps, will be placed on the other socialist nations engaged in globalization. Raul Castro is envisioning the creation of a grand socialist league of states, united in their intervention, as states, within the otherwise private systems of global economic activity. "Proof of this are the steps we are taking forward next to our brothers in Venezuela, Bolivia and Nicaragua, and our solid ties to China and Vietnam, to mention but a few noteworthy examples of the growing number of countries in all continents with which relations of all kinds are being re-established and extended." Discurso pronunciado por el Primer Vicepresidente de los Consejos de Estado y de Ministros (English version).

Internationalism, it appears, may soon acquire another voice--one with socialist characteristics, in which the state, rather than the individual, in which the public, rather then the private sphere, will seek dominance and control of human activity. Cuba, with China, appears to remain at the forefront of these movements. Both, together with states like Vietnam (and increasingly Russia) suggest the reemergence of what is in this century referred to authoritarian capitalism. See Azar Gat, The Return of Authoritarian Great Powers, Foreign Affairs (July/August 2007) at 59-69. Perhaps in the future Cuba, like "China and Russia represent a return of economically successful authoritarian capitalist powers, which have been absent since the defeat of Germany and Japan in 1945." Id., at 66.

Its success, at any level, ought to be a cause for concern in Washington. If Cuba can demonstrate that state (national) socialism is compatible with market economies, it can provide an alternative model for state organization than that advocated by Washington. Both China and Cuba have, in their own ways, been working hard to make that a reality. Yet it is likely that the American elite will continue to hear Cuban rhetoric like it hears Chinese rhetoric--as little more than ideological posturing not worth much effort to either understand or counter through the development of strong positions and stronger actions. The U.S. may regret its inattention as Cuba continues to build an alternative system, and China continues to add its encouragement and expertise.

Thursday, July 26, 2007

A Postscript on the Turkish Elections

Well now that the dust has settled, it is clear that the "soft" Islamist Justice and Development (AK) party has been returned to power in Turkey. One of many parties in Turkey (Barak Sansal, Political Parties in Turkey), the AK Party won sizable votes all over the country, though their performance was most contested in the more western oriented parts of the country. This election, we have been told by the media elite, was critically important as the "only way to resolve a standoff between the country's ruling Justice and Development party (AK) and the country's secular elite, including the army." Focus Turkey: Q & A: Turkey's Elections,, July 16, 2007. "Unofficial results gave his ruling Justice and Development (AK) party 47 per cent, up 13 points from 2002. But a more united opposition means it will get only 339 out of 550 seats, slightly fewer than now." AK Ruling Party Wins Turkey Polls,, July 23, 2007.

The Europeans, in particular, are happy with the results. The AK Party is officially committed to the EU accession process and appears amenable to ending its support for the Turkish separatists in Cyprus so that the European consensus on the "right" result in that ethnic and political quarrel may be imposed. But the AK Party is also an Islamist Party, and the EU has become increasingly reluctant to support full membership for Turkey.

Thus consider the following interpretation of the election results in terms of strategic decisions of the elites within Turkey and the EU:

I think all players understand that EU membership is problematic at best and perhaps even unlikely. So all parties are playing a game of chicken for their own not well-hidden agendas. The Turkish Islamist party plays along to protect their European populations (many of whom came back to Turkey to vote) and to enhance their own internal power by pointing to cooperation with the EU as the source of Turkish economic growth. At the same time, they may well expect a final rejection by the EU of full membership. And at that point they can play the Islamist card. Able to point to the Europeans as the great betrayers, the AK Party might then offer Islam as an alternative to the EU to an enraged and humiliated populace. And to make that more likely, the AK Party might start making a series of small changes to the culture of Turkish governance (for example a direct election of the Turkish President) that might strengthen its hands in the long term.

The EU elite is also engaging in strategic behavior. It is fortunate because it can speak with almost thirty mouths, none of whom can commit the EU. Thus, the EU can scare Turkey with the speeches of the new French President while encouraging the Turks with quiet, if ambiguous, assurances from other Member State heads of State. In the end, the EU is playing for time. It seeks to entangle Turkey so deeply in the acquis and the governance culture of the EU that Turkey’s elite will find it difficult to pull away no matter what the EU decides on its status. This process has already begun. At a lecture at Yeditepe University immediately after elections, Vice President of the EU-Turkey Joint Parliamentary Committee Andrew Duff expressed the view that EU membership for Turkey is unlikely until the EU adopts "a common foreign and security policy . . . . As Turkey's accession would expand the borders of EU countries to Syria and Iraq, 'the EU could not contemplate such an expansion if the union fails to put in place a credible, strong, common foreign and security policy.'" A Difficult Way for Turkey to EU, Turkish Daily News, July 28, 2007. And Duff noted the usual stumbling blocks to membership as well: "Cyprus, the Kurdish problem and the opposition of several member countries to Turkey's accession." A Difficult Way for Turkey to EU, supra. Consequently, it is likely that the EU means to eventually offer Turkey something of a consolation prize. Along with the Ukraine, some Mediterranean states and others, it might be permitted all the benefits of membership other than free movement of workers. And it will also be locked out of the governance of the EU. The Norwegian solution appears to be likely result.

The Americans, of course, are playing for different stakes altogether. They want a form of Islamist government to serve as an exit model for their disaster in Iraq. But Turks are not Arabs (or Iranians or Malays, for that matter). And it is never clear that governance structures might be easily translated even between Muslim majority states. Consider the elementary insight of comparative law that cautions against an easy importation of legal culture and rules even as between states with very similar legal cultures.

All positions are risky. The AK Party may not last long enough to effect a shift in the governance culture of Turkey. The EU may push Turkey closer to the Central Asian region (and China or the US). The Americans may discover that soft Islam and soft Christianity does not guarantee an identity of interests, or even of political stability.

The Turkish elections, thus, provides a window on a complex area of international relations, and the creation of supra-national rule of law systems. It points to a range of potential future questions the answers to which will affect the way in which global law is understood.

Friday, July 20, 2007

Pakistan and Its Prostitutes Part II: The Ghazi Brothers, the Red Mosque, Globalization and Power

In a prior post I discussed some of the complexities for the rule of law in systems in which there was a divergence between formal rule of law (grounded in the state and the state system as a political community) and substantive rule of law (grounded in religion and the religious system as a coherent social and political community), and its incidental effects on and the role played by, globalization in the development of both systems and their interaction. See Larry Catá Backer, Rule of Law as Form or Substance: Pakistan and Its Prostitutes, Law at the End of the Day, June 23, 2007. For that purpose I focused on the work of the Ghazi brothers, and the so-called Red Mosque (Lal Masjid) in Islamabad Pakistan. For a profile of the Lal Masjid, see Syed Shoaib Hasan, Profile: Islamabad's Red Mosque, BBC News, July 3, 2007. I suggested that where there is a divergence between formal and substantive rule of law regimes--as is the case in a Pakistan in which formal rule of law is vested in the state apparatus but substantive rule of law is exercised by the masjid society--there is likely to be an explosion.

And so it should come as no surprise that the Lal Masjid continued to assert its rule of law framework for behavior within the geographic area within which it could project its power. "In speeches after Gen Musharraf openly announced his support for the war on terror", the mosque has been the centre of calls for his assassination." Syed Shoaib Hasan, Profile: Islamabad's Red Mosque, BBC News, July 3, 2007. And it should come as even less of a surprise that the Pakistani State eventually eventually sought to destroy the Lal Masjid--and neutralize the Ghazi brothers. The Pakistani State first sought to arrest ceratin members of the Lal Masjid. "The government wants to detain a number of people who are on a wanted list, and also a number of foreigners whom it says are inside." Pakistani Soldiers Storm Mosque, BBC News Online, July 10, 2007. Eventually, after unsuccessful surrender negotiations, "Abdul Rashid Ghazi was killed in the crossfire as he tried to surrender to the Pakistani forces, an interior ministry spokesman said. " See Jenny Booth, Cleric Killed in Final Assault of Red Mosque, The Times (U.K.) Online, July 10, 2007 ('' The raid began after the failure of the latest attempt by political and religious leaders to persuade the militants to lay down their weapons.").

What made the eventual attack on the Lal Masjid so interesting from a rule of law perspective is the way the state acknowledged the sovereignty of the community of fighters it was seeking to neutralize. Thus, Pakistani military officials used the language of war to describe the situation. "Those who surrender will be arrested, but the others will be treated as combatants and killed," said Major General Arshad." Jenny Booth, Cleric Killed in Final Assault of Red Mosque, The Times (U.K.) Online, July 10, 2007. And indeed, the diverge of rule of law communities vying for control of Pakistani territory was echoed by the surviving Ghazi brother. "Days after he was caught fleeing Islamabad's Red Mosque in a burqa, its captured chief cleric gave an incendiary funeral oration at the village burial of his slain brother, predicting the bloodshed would drive Pakistan toward an "Islamic revolution." Brother of Slain Cleric Predicts "Islamic Revolution" in Pakistan, International Herald Tribune (Asia Pacific), July 11, 2007. And indeed, the divergence in rule of law states lying below the surface of Pakistani life for a number of years has now surfaced with full force into violent warfare between the two legal regimes. Where both formal and substantive rule of law regimes lived together in uneasy co-existence, the raid and the resulting deaths have now raised the stakes. Co-existence is off the table.

Still, there appeared to be little reason to upset the balance. The state had the Lal Masjid substantially contained. Other than raids on foreigners, mostly Chinese workers who were accused of engaging in "loose morals" businesses, and the habitual declarations of ties to fundamentalist and political Islamist elements, the Lal Masjid was mostly concerned about the preservation of its compound. And leaving the Ghazi brothers alone minimized the likelihood that fundamentalist elements would cease to acknowledge the formal power (if that) of the rule of law state. Plus, because they were publicity hungry, they were easy to monitor. But what makes sense within Pakistan, could have disastrous consequences abroad. And in this case, the internal focus on Chinese foreigners as purveyors of loose morals in Pakistan might have raised the ire of another rule of law state--the People's Republic of China. Global commerce, free movement of capital and enterprises, local prejudices, internal politics and the fight for internal dominance between religious and political rule of law systems thus collided with lethal effect. More interesting, perhaps, is the connection to global commerce in general, and Chinese penetration of Pakistani economic life in particular. It seems that the Chinese connection might have been the precipitating cause of the raid.

After weeks of free rein in the city attacking fellow Pakistanis, the squads of self-appointed enforcers of strict Shariah, consisting of armed male and female students, raised the stakes, and selected a foreign target. On June 23, the seminarians entered a Chinese-run health care center, which is often a euphemism for sex parlor, and kidnapped seven Chinese people, including five females whom they believed to be prostitutes. Within Pakistan, and indeed much more widely among people who have followed these events closely, this incident, along with the killing two weeks later of three Chinese people in the western Pakistani city of Peshawar, is believed by many South Asian diplomats to have precipitated the decision by President Pervez Musharraf to lay siege to the mosque, mounting a rare, direct confrontation with the forces of radical Islam in his country.

Howard W. French, Letter From China: Mosque Siege Reveals Chinese Connection, International Herald Tribune (Asia Pacific), July 12, 2007 (reporting that "top Chinese leaders had followed [events] closely, and had been giving direct instructions to the country's diplomats in Islamabad."). The events at the Lal Masjid may now affect Chinese rule of law framework as well. "Beyond the very real issue of the problems such things might cause abroad, there is an issue of growing importance in China itself, one of information and candor and an ability to accept criticism, or more to the point where the events of Pakistan are concerned, to promote and accept self-criticism." Id. It will unclear who will successfully project power within Pakistani territory. What is clear is that the issue now has also acquired a global character beyond the usual "West versus Islam" framework. The repercussions will be a long time coming. To formal and substantive rule of law regimes, Pakistan will serve to deepen a transnational element to domestic rule of law discourse.