Democracy Part VIII: Aristocratic Democracy and the Pakistan People's Party

On of the great things about democracy, we are told, is how it opens the avenues of political power to all members of the polity. Unlike aristocracies, monarchies or dictatorships, democracy (in whatever form practices) permits any citizen to strive for the highest elective offices of the state apparatus. Any girl can hope to grow up to be the President of the United States or the Prime Minister of Israel or Pakistan. Our political theory reinforces the notions that win or lose, even the most lowly may seek the highest public office unimpeded by the detriments of low birth, status, despised religious beliefs, or the like. The English tell us that “Democracy is a system of government in which the whole population is engaged. It can take many different forms, depending on local culture, society and history. There is no single, ideal model. However, genuine democracies have common features, and the characteristics listed below are generally considered to be essential before democracy can be said to be genuine.” (United Kingdom Foreign and Commonwealth Office, Human Rights, Democracy and Good Governance). Two of the named characteristics are the right to vote in elections and the right to run for public office.

Conversely, theocratic constitutionalism is disparaged for exactly that reason—not all members of the polity can aspire to the highest offices in the land—especially where women or people belonging to tolerated faiths are effectively disabled from such aspirations. It governs some pause, for example, that the Copts of Egypt are effectively precluded from high office in Egypt (Hassan 2003, ; Springborg 2003, 192), or Bahais in Iran (Marshall 2007). The Americans, for example, tell us that “All modern democracies hold elections, but not all elections are democratic. Right-wing dictatorships, Marxist regimes, and single-party governments also stage elections to give their rule the aura of legitimacy. In such elections, there may be only one candidate or a list of candidates, with no alternative choices. Such elections may offer several candidates for each office, but ensure through intimidation or rigging that only the government-approved candidate is chosen. Other elections may offer genuine choices--but only within the incumbent party. These are not democratic elections.” (U.S. Department of State, What is Democracy, Elections).

But the reality, even in the most open societies, is slightly more complex. That reality was brought to the forefront today on the announcement by the Pakistan People’s Party of its intention to elevate the son of Benazir Bhutto to become President of that Party. (Bhutto's son named as successor, BBC News Online, Dec. 30, 2007). Bilawal, Benazir Bhutto's 19-year-old “will be a titular head while he finishes his studies at Oxford University.” Id. “Ms Bhutto's widower, Asif Ali Zardari, who will run the party day-to-day, said it would contest upcoming elections.” Id. It appears that Ms. Bhutto had willed the leadership to her husband, but he demurred in favor of his son. “Another senior party official, vice-chairman Makhdoom Amin Fahim, said Ms Bhutto had named Mr Zardari as her successor as party chairman. But he said Mr Zardari had turned it down in favour of his son - a decision he said the party leadership had endorsed.” Id. It seems that everyone wins with this choice. “At 19, Bilawal is legally too young to stand for parliament. And his father has been repeatedly accused of corruption - though he denies the charges and has never been convicted in court. Mr Zardari said party vice-chairman Mr Fahim would probably be its candidate for prime minister.” Id. Father, son and faithful second in command all reap the rewards of family ties or loyal service to the former head. Democracy, and party politics is well served.

The rule of law in a democratic state is deepened in a way peculiar to the 21st century. There seems to be an aristocratic principle at work within political parties. Political leadership is reserved to the families of founders or their retainers. Common party members serve, but know their place, a place formally written into the unwritten rules of party membership. Yet political parties themselves serve as the institution through which populist politics is managed within Pakistan. In that sense, the common party member is the ultimate object of party loyalty and the need to keep that member enthusiastic the ultimate goal of any party leadership. But this is not unique to Pakistan. The Bush and Kennedy families in the United States, for example, have both provided powerful sets of political dynasties which functions substantively in the for of aristocratic governance all the while observing the forms of democratic politics. Some Marxist States appear to have refined the aristocratic principle to a fine point. North Korea provides an excellent example of an aristocratic Marxist Leninist state—and proof that contradictions in terms are quite viable in the political sphere. There are other examples.

Democracies, at times, thus seem to move simultaneously to both aristocracy and populism. Thus, democracy in the 21st century indeed appears to describe a system in which all people participate. But not all people participate equally. Nor may all people aspire to such equal participation. For leadership positions, family, status, and other marks of privilege separate those destined for leadership from all others. In this respect, the English are right—cultural differences produce variation in the measure of status and privilege. But in all cases, the results are the same—only some people in democracies are destined for leadership—and the qualifications for that leadership can be more a matter of birth and status than of talent. Perhaps that is what the Americans mean by representative democracy, the construction of a system in which two classes of citizens, those who are destined to lead and those who are destined to chose which group of leaders to follow. The official explanation thus veils as much as it reveals: “Today, the most common form of democracy, whether for a town of 50,000 or nations of 50 million, is representative democracy, in which citizens elect officials to make political decisions, formulate laws, and administer programs for the public good. In the name of the people, such officials can deliberate on complex public issues in a thoughtful and systematic manner that requires an investment of time and energy that is often impractical for the vast majority of private citizens.” (U.S. Department of State, What is Democracy, Defining Democracy). Representative democracy provides incentives to a division of political classes into castes—an aristocratic leadership caste in which power is passed along by ties of blood or connection, and a common following of a population the management of whose political expression is the object of the aristocratic leadership caste. The elevation of Bilawal Bhutto to the leadership of the Pakistan People’s Party evidences the trans cultural aspect of this form of democratic organization in the 21st century.

There are rule of law implications for this casting of democratic organization. On the one hand, it might suggest that the trend toward formalism—the strict adherence to particular rules in form but not necessarily in effect, continues unabated into the 21st century. As long as the forms of equal opportunity and equality before the law is observed, the reality of strict deviation in fact makes no legal difference. Rule of law, then, especially as understood in its constitutional sense, might be robbed of its substantive element. It is this sort of strict separation between the forms of governance and their effect that might be said to have maintained the formal constitution of the current Pakistani government as both legitimate and democratic—until the principal stakeholders found both monikers inconvenient. Again, the Americans explain that “No one is above the law, which is, after all, the creation of the people, not something imposed upon them. The citizens of a democracy submit to the law because they recognize that, however indirectly, they are submitting to themselves as makers of the law. When laws are established by the people who then have to obey them, both law and democracy are served.” (U.S. Department of State, What is Democracy, The Rule of Law). But the realities of constitutional governance—at once both aristocratic and demagogic—suggest a set of subtleties that belie the simplicities of the usual straightforward applications of democratic theory, and especially democratic theory as a basis for legitimacy of and in law. The recent events in Pakistan—starting with the crisis of the Musharrif government, the interference of foreign powers in that crisis, the machinations of Benazir Bhutto seeking to negotiate her way (and that of her party) into an accommodation with the current regime for an eventual takeover (through the appropriate exercise of the franchise by Parry supporters after appropriate instruction), the intervention of that other powerful stakeholder (outsider Islamist parties) through the political use of murder, and the succession of the mother by the son—all suggest the contours of democratic governance in this century. The great issues of 17th century political governance appear to be with us still. (Backer 2008). And it also suggests that Aristotle’s notions of politics might become a more complex matter in this century—it might be possible to develop multiple systems of governance simultaneously in a way that Aristotle might not have been able to conceive. (Aristotle).


Reference List:

Aristotle, Politics (Benjamin Jowett, trans, 350 BC).

Larry Catá Backer, Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 25 PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2008) ( God(s)OverConstCLEAN11-26.pdf).

Bhutto's son named as successor, BBC News Online, Dec. 30, 2007 available http://news.bbc.co.uk/2/hi/south_asia/7164968.stm.

Sana S. Hassan, Christians Versus Muslims in Modern Egypt: The Century Long Struggle for Political Equality (Oxford: Oxford University Press, 2003).

Paul Marshall, Murder With Impunity, Iran Targets the Baha’i Again, The Weekly Standard, Volume 013, Issue 08, Nov. 5, 2007, http://www.weeklystandard.com/Content/Public/Articles/000/000/014/284idyfu.asp (accessed Dec. 30, 2007).

Robert Springborg, An Evaluation of the political System at the End of the Millennium, in Egypt in the 21st Century: Challenges for Development 183 (Mohamad Riad El
Ghonemy, ed., London: Routledge, 2003).

United Kingdom Foreign and Commonwealth Office, Human Rights, Democracy and Good Governance, available http://www.fco.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1070037618836.

U.S. Department of State's Bureau of International Information Programs, What is Democracy, available at http://usinfo.state.gov/products/pubs/whatsdem/whatdm5.htm

Nehru Inverted: Building a Model for Theocratic Constitutionalism in India.

People have sometimes looked to India as an example of the possibility of constructing a multi-ethnic, multi-lingual, and multi-religious state from out of a collection of culturally related peoples. Europeans, in particular, have been looking to pluralist, multi-ethnic states, other than the United States, to overcome current objections to a European state based on the “no demos” idea. (Mancini 2000, 60) (looking to the example of India and South Africa for multi-lingual, multi-ethnic democratic states). Elsewhere, I had once suggested that there has emerged within Asia an acceptance of state creation on the basis of democratic participation within a pluralistic polity. If Europe needed a model for the formation of a nation from out of a large group of related but politically separate communities, communities separated by language, religion, tradition, race, and traditions—it needed to look no further than the modern federal Republic of India. (Backer 2002).

In 1947 as India gained independence, most of the world questioned whether the new Indian state could survive. (Das 1992, 135). Indian nationalists—led by Mohandas Gandhi and Jawaharlal Nehru—aimed to unite British India and 562 princely states into a secular and democratic state. (Hardgrave 1993, 54-68). The new “Indians” spoke more than a dozen major languages and belonged to a multitude of religions. (Id.). European views regarding a nation of India were best characterized by John Strachey’s declaration, “there is not, and never was an India, nor ever any country of India, possessing according to European ideas, any sort of unity, physical, political, social or religious; no nation, no ‘people of India’ of which we hear so much”. (Strachey 1885, 5). Judging from the 19th century British and French models, India possessed none of the characteristics of a nation. The new nation lacked a common language, a shared historical experience, a common religious tradition and racial homogeneity, all of which were thought to be prerequisites for the formation of a nation. (Embree 1990, 61).

Early nationalists asserted that a national unity could be established whether it be through religion or secularism. The foremost Indian nationalists—Gandhi and Nehru—disagreed sharply over whether India’s national identity should be built around religion or the establishment of a purely secular state. (Chandra 1988, 522-524). Both of these Indian nationalists established secularism as a basic component of the nationalist ideology. Both Nehru and Gandhi believed that the objective of unification of the Indian people could only be realized by taking into account regional, religious, caste, ethnic and linguistic differences. While both leaders believed in the establishment of a secular state, they envisioned very different frameworks through which this vision would be realized.

Gandhi envisioned a role for religion in the new India and utilized religious symbolism in his campaign for independence. Gandhi refused to divide religion from the political realm and strove to refute the colonial charge that religion must keep India divided. (Khilnani 1997, 164)). Utilizing religious symbols that allowed him to be viewed as a religious saint among many of India’s religions (although the symbols were predominantly Hindu), Gandhi created an Indian identity based on swadeshi, a patriotism based on a reverence for every day India. (Id.).

While Gandhi’s Hindu-oriented freedom campaign brought independence to India, it was Nehru’s vision of secular state that lay the foundation of the new Indian republic. (Alam 1999, 147). Nehru adhered to the establishment of a strict secular Indian state. Nehru rejected European paradigms of a national identity and instead believed that an Indian identity could only emerge within the institutional and territorial structure of a state. “Nehru believed that an Indian identity could emerge only within the territorial and institutional frame of a state. A specifically Indian compromise was needed, and he saw strengths in this. That compromise was outlined in the practical adaption, after 1947, of the state into a distinctive model shaped by Nehru’s understanding of the Indian past: a model committed to protecting cultural and religious difference rather than imposing a uniform ‘Indianess’.” (Khilnani,1997, 167).

Nehru thus dedicated himself to the formation of an Indian identity, which protected religious and cultural differences rather than the imposition of a unitary ‘Indianess’. Nehru managed to create an Indian identity based on democracy versus ethnic, linguistic or religious criteria. (Khilnani,1997, 173). In The Discovery of India, written on the eve of Independence, Nehru characterized India as a place of cultural mixing and “an ancient palimpsest on which layer upon layer of thought and reverie had been inscribed, and yet no succeeding layer had completely hidden or erased what had been written previously.” (Nehru 1946, 38-39). From 1947 to 1964, Nehru carefully navigated India through the effects of Partition, debates over a national language and an increased push for states rights. (Khilnani 1997, 178-79).

Nehru ended his tenure as Prime Minister in 1964 but the Congress Party continued as the primary political party until 1996. However, the political landscape began changing considerably since the late 1980's and early 1990's when India witnessed a resurgence of politically organized Hindu nationalism. (Jaffrelot 1996, 1). Many have argued that Nehru’s model of secularism assisted the rise in Hindu nationalist sentiment. (Khilnani 1997, 183). Nehru and the founding generation sought to use a spec ific, ethnically based federalism as the tool through which unity and integrity could be maintained in a complex and multilayered plural entity. Muni 1996, 188). Starting in 1953, Indian federalism was reorganized on a linguistic basis. As the Commission Constituted to Reorganize States in the Indian Federation explained: “Linguistic homogeneity provides the only rational basis for reconstituting the state, for it reflects social and cultural pattern of living obtaining in well-defined regions of the country.” (Muni 1996, 185). Thus, early on, the use of language as a proxy for socio-cultural difference, and the embracing of the assumption that these linguistic differences were territorially based drove Indian federalism. Yet, the “elaborate structure of power devolution has combined with the linguistic basis of federal unity to facilitate the management of cultural diversity in India and help mitigate pulls toward separatism and disintegration.” (Muni 1996, 190).

At the center of this new religious nationalism is the Bharatiya Janata Party (BJP), the foremost Hindu Nationalist party in India. The nature of that nationalism is nicely crystallized in the BJP’s statement that “It has nothing against Muslim Indians - as distinguished from Muslim invaders. Its position on this issue has all along been: "Justice for all and appeasement of none". But it has no doubt that we were and are a Hindu nation; that change of faith cannot mean change of nationality.” (Bharatiya Janata Party Gujarat, Backdrop, Founder, Ideologue).

The symbolic and precipitating event in the rise of modern Hindu consciousness, and the construction of Hindu nationalism, can be attributed to the controversy surrounding the Babri Masjid in Ayodhya. During the Mughal era, Emperor Babur constructed the Babri masjid (mosque) at the site revered as the place of Lord Ram’s birth. Ram is one of the central Hindu deities in Vedic Hinduism. Hindu theology tells that Ram was born in the town of Ayodhya in modern-day Uttar Pradesh. (Khilnani 1997, 52-54).

Since independence, Hindu nationalist parties have lobbied for the destruction of the Babri Masjid and construction of the Sri Ram Mandir temple. Finally, in 1992, Hindu nationalists destroyed the Babri Masjid. The ensuing riots killed thousands of Indian Muslims and prompted a surge if Hindu nationalism. (van der Veer 1996, 253-54 ). The Babri Masjid-Sri Ram Mandir confrontations continue through 2002—yet they do not serve as any indication that India will tear itself apart. Throughout the early 1990's the BJP had made small gains in national and state-wide elections and in mid-1996, the BJP won the national election. (Ludden, 16-17). However, since the early 1990's the strong tide of Hindu nationalism has weakened. After the 1993 election, the BJP relied less on ethnic-religious mobilization and focused more on social and economic issues. (Jaffrelot 1996, 533). During the late 1990's, in an attempt to widen their electoral base, the BJP modified many of their positions especially regarding language.

In the early 1990's, the BJP campaigned under the slogan of ‘One Nation, One People, One Culture’ (BJP Election Manifesto 1998). It was reported that this amounted to a pledge to remake India into a Hindu state by promoting the Hindi language, re-writing Indian history to exclude Mughal history and a general promotion of Hindu culture. Education initiatives stated that, “Curricula be Indianised and spiritualised and emphasise the teaching of Indian philosophy, including the Vedas and Upanishads in higher education. Sanskrit be made compulsory.” (Baweja 1998, 17).

One gets a sense of the nature of the difference in historical emphasis when one reads the Bharatiya Janata Party’s understanding of the historical context of which it forms a modern expression.

History is the philosophy of nations. And the Sangh Parivar has a very clear and candid conception of Indian history. Here was a great civilization whose glory spread from Sri Lanka to Java and Japan and from Tibet and Mangolia to China and Siberia. While it weathered the storms of Huns and Shakas and Greeks it wilted before the Islamic storms of the Turks. However, a 1000-year resistance saw this country bloodied but unbowed. Its civilization survived through the heroic efforts of the Vijayanagar Empire and of Shivaji, Rana Pratap and Guru Govind Singh and countless heroes and martyrs.

(Bharatiya Janata Party Gujarat, Backdrop, Founder, Ideologue). Whatever the reality of the rewriting of history, it was clear that BJP rejected traditional Indian ethnic constitutionalism.

In the name of "secularism", the Congress and the United Front parties have shamelessly pandered to communalism and indulged in "vote-bank politics". As a result, members of the minority communities have been reduced to nothing more than numbers to be played with at the time of elections. While these parties have gained, the minorities have lost-as also has India. The minorities have been cynically used for the purpose of garnering votes these past 50 years, but their socio-economic problems have remained unattended. The true meaning of "secularism", equal respect for all faith-sarva panth samadar- has been perverted by the pseudo-secularists into appeasement of regressive elements. (BJP Election Manifesto 1998, chp. 9).

More recently, however, the BJP has dropped most of their dominantly Hindu nationalist policies in place of social, economic and defense policies that encompass a wider spectrum of the Indian populace. (BJP, NDA Agenda for Development, Good Governance and Peace Manifesto 2004) Yet that is still done within the context of a sense of the universal application of a Hindu worldview, Hindutva, as a cultural rather than as a religious matter.

The BJP draws its inspiration from the history and civilisation of India. We believe that Indian nationhood stems from a deep cultural bonding of the people that overrides differences of caste, region, religion and language. We believe that Cultural Nationalism for which Indianness, Bharatiyata and Hindutva are synonyms -- is the basis of our national identity.

Contrary to what its detractors say, and as the Supreme Court itself has decreed, Hindutva is not a religious or exclusivist concept. It is inclusive, integrative, and abhors any kind of discrimination against any section of the people of India on the basis of their faith. It rejects the idea of a theocratic or denominational state. It accepts the multi-faith character and other diversities of India, considering them to be a source of strength and not weakness. It firmly upholds secularism, understood as Sarva Pantha Samabhav (treating all faiths with respect).

However, the BJP unflinchingly holds that differences in faith cannot challenge the idea of India as One Nation or undermine our millennia-old identity as One People. This is why, we rejected the two-nation theory on the basis of which our Motherland was tragically partitioned in 1947. Thus, Cultural Nationalism is the most potent antidote to communalism, divisiveness, and separatism of every kind, and a guarantor of our national unity and national integration.

(Bharatiya Janata Party, Vision Document – 2004). This is an elaboration of the notion of Cultural Nationalism within Hindutva (BJP, BJP Philosophy : Hindutva (Cultural Nationalism)) already declared in the 1998 Manifesto (BJP Election Manifesto 1998, chp. 2 (“Our nationalist vision is not merely bound by the geographical or political identity of Bharat but it is referred by our timeless cultural heritage. This cultural heritage which is central to all regions, religions and languages, is a civilizational identity and constitutes the cultural nationalism of India which is the core of Hindutva. This we believe is the identity of our ancient nation "Bharatvarsha"”)). India, it seems, will not be unmade, despite her history and traditional divisions. Yet India also serves as testament to the power to remake or create a national consciousness even where cultural, linguistic and religious difference are as great as those traits that these communities share in common.

It is with this in mind that one might better understand the tensions inherent in the recent election results in Gujarat. (Wax 2007). It appears that the BJP has just won an election in that crucial diverse Indian state. “It marks a big victory for controversial right-wing Chief Minister Narendra Modi, who is credited with pursuing successful economic policies.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007). But Mr. Modi has been accused of supporting 2002 riots in that province that resulted in the death of more than 1,000 Muslims. (Wax 2007). “Modi hails from the Bharatiya Janata Party, or BJP, and the race is being closely watched as a test of the party's Hindu nationalist ideology at a time when India's importance on the global stage is growing. It is also being watched as an indicator of the BJP's strength before general elections scheduled for May 2009.” (Wax 2007). Nevertheless, “The BJP won 117 out of 182 seats in the Gujarat Legislative Assembly, with Congress winning 59 and six seats going to the smaller parties, results from the Electoral Commission of India showed. It is the fourth consecutive BJP election victory in Gujarat.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007).

The Indian elite is unhappy about this. "If Modi wins again in Gujarat, it puts a dent in India's commitment to diversity," said Shiv Visvanathan, a professor and analyst who tracks the chief minister. "It further polarizes society. India has the world's second-largest Muslim population, and it will send shivers when he wins. Modi's never even apologized to the Muslims for riots. A lot of people admire that, and he embodies Hindu pride." (Wax 2007). Most fault him for playing the religion card to get elected in 2002 in the wake of the terrible riots in that province. “"His constant refusal to discuss 2002 and insisting that this is all about development is really an order for silence," said Yogesh Chandrani, a Gujarati anthropologist. "So there is no public discussion of the prejudice against Muslims or the violence that occurred or the fact that an entire section of society is marginalized. The thing is, the middle class has fallen in line."” (Id.). And this elite should be wary, since BJ stands against everything at the foundation of the construction of the current Indian state apparatus. But so are the apparatchiks within the American state apparatus. Modi had been “denied a visa by the United States for "severe violations of religious freedom."” (Wax 2007).

Guilt by association has become a great measure of American policy, unless it suits us to look the other way. And when it comes to Hindu activism all the more so. “Modi was once a young member of the Hindu nationalist Rashtriya Swayamsevak Sangha, or RSS, a member of which killed Mohandas K. Gandhi. After the riots, Modi won a landslide victory in 2002, tapping into long-festering tensions between Muslims and Hindus, human rights experts said.” (Id.). But Modi has come a long way, at least when it comes to media projection. “Modi speaks only about development, rarely mentioning the religious tensions that once got him elected. India Today magazine called this change the "most significant total transformation of a political leader in Indian politics."” (Id.).

It is no surprise that opinion varies by affiliation—both religious and status quo. “To his critics, Modi is a dangerous leader who stood idle during weeks of mob violence, known as "Gujarat's pogroms" in the Muslim community.” (Wax 2007). Indeed, “Mr Modi has been accused of failing to protect Muslims in the riots, which claimed the lives of 1,000 people.” (India's BJP wins Gujarat election, BBC News, Dec. 23, 2007). On the other hand, “to his admirers, Modi is a Hindu hero of machismo, especially for the middle class. He's religious, business-friendly, socially conservative, outspoken against affirmative action for Muslims and other minority groups, and tech-savvy.” (Id.).

And, indeed, it is Gujarat’s Muslim community, about 9% of the population, that feels the pinch of the BJP’s Cultural Nationalism policies. One report quoted a member of that community: “"I feel like a caged animal on display," said Mohamed Salim, a former rickshaw puller who witnessed the mobs killing his friends and neighbors in 2002. "The politicians, the human rights activists and the government all come to look, and nothing ever changes. There is no justice for Muslims in India, especially now. And no hope for the future."” (Wax 2007). Indeed, feelings run hot in this border province. “For victims of the 2002 riots, a Modi victory would be just one more symbol of injustice. "Since there is no justice and people are still voting for Modi, we are ignored, and we Muslims can never trust them," said Niaz Bibi, 50, a mother of three whose home was burned by Hindu mobs in 2002. "All of those who burned my house had been nourished by meals in my home. We used to be friends and neighbors. That's not the India I know now."” (Id.).

But it is a curious thing for religious people to speak of prejudice in an age and place where people are otherwise comfortable with the importance, even the predominance, of religion and religious values as the centerpiece of state creation. Consider, for example, that under American tutelage, the state of Iraq has, in some respects, enacted in its constitution the central elements of the more radical version of the BJP’s platform for transforming India, but without even the equality protections for religious and ethnic minorities in the state. (Backer, 2007). Religious transnational constitutionalism is now respectable. Its consequences, in terms of the excesses possible where populations are polarized rather than taught mutual toleration, is readily apparent in Gujarat. But it is wrong to point the finger at Hindu nationalism. That expression, even in religious terms, can hardly be considered on a par with that in neighboring countries neither known for their religious toleration nor sympathy for cultural diversity. In many respects, the BJP represents a benign version of a possible future of transnational constitutional orders whose framework has been constructed by te Iranians and the Americans in Afghanistan and Iraq. It is hardly fair to complain that what is appropriate in Muslim majority states is somehow inappropriate in Hindu majority states. . . . or in Christian or Jewish majority states. For those who have had in the construction of this transnational constitutional reality, this consequence may define a new baseline for state construction.



Reference List:

JAVEED ALAM, INDIA: LIVING WITH MODERNITY 147 (Delhi: Oxford University Press, 1999).

Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2002), summary available (accessed Dec. 23, 2007).

----------, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century, 26 MISSISSIPPI COLLEGE LAW REVIEW – (forthcoming 2007), (accessed Dec. 18, 2007).

Harinder Baweja, Failing the Test, INDIA TODAY, Nov. 2, 1998) at 17.

Bharatiya Janata Party Gujarat, Backdrop, Founder, Idealogue, available at (accessed Dec. 22, 2007).

----------, Vision Document – 2004, Our Basic Mission and Commitments, (accessed Dec. 23, 2007).

----------, Election Manifesto 1998, particular chapter may be accessed at http://www.bjp.org/manifes/chap2.htm http://www.bjp.org/manifes/chap9.htm (accessed Dec. 17, 2007).

---------, NDA Agenda for Development, Good Governance and Peace Manifesto 2004, (accessed Dec. 17, 2007).

----------, BJP Philosophy: Hindutva (Cultural Nationalism), (accessed Dec. 23, 2007).

BIPAN CHANDRA, INDIA’S STRUGGLE FOR INDEPENDENCE 1857 - 1947 522-524 (New Delhi: Penguin Books, 1988).

ARVIND N. DAS, INDIA INVENTED: A NATION-IN-THE MAKING (New Delhi: Manohar, 1992).

AINSLIE T. EMBREE, UTOPIAS IN CONFLICT: RELIGION AND NATIONALISM IN INDIA 61 (Berkeley: University of California Press, 1990).

Robert L. Hardgrave, Jr., India: The Dilemmas of Diversity, 4/4 J. OF DEMOCRACY 54-68 (The Johns Hopkins University Press, October 1993).

India's BJP wins Gujarat election, BBC News, Dec. 23, 2007, (Accessed Dec. 23, 2007).

CHRISTOPHE JAFFRELOT, THE HINDU NATIONALIST MOVEMENT IN INDIA 1 (New York: Columbia University Press, 1996).

SUNIL KHILNANI, THE IDEA OF INDIA 164 (New York: Farrar, Straus & Giroux, 1997).

David Ludden, Introduction. Ayodhya: A Window on the World, in Contesting the Nation, p. 16-17.

G.F. Mancini, Europe: The Case for Statehood, in G.F. MANCINI, DEMOCRACY AND CONSTITUTIONALISM IN THE EUROPEAN UNION: COLLECTED ESSAYS 51, 60 (2000).

JAWAHARLAL NEHRU, THE DISCOVERY OF INDIA 38-39 (New York: Doubleday, 1946).

JOHN STRACHEY, INDIA 5 (London, 1885).

Peter van der Veer, “Writing Violence” in CONTESTING THE NATION: RELIGION, COMMUNITY AND THE POLITICS OF DEMOCRACY IN INDIA 253-254 (David Ludden, ed., Philadelphia: University of Pennsylvania, 1996).

Emily Wax, In Tense Indian State, A Man for All Hindus Gujarat's Muslims Apprehensive on Election Eve, The Washington Post, Dec. 23, 2007, at A20 (Accessed Dec. 23, 2007).

On Tony Blair's Conversion to Catholicism and the Religious Character of States

It appears that Tony Blair, the former Prime Minister of the United Kingdom and sometime representative of the Global elite in its perpetual management of the war between the People of Israel and Islam, has left the Anglican Church to embrace the religion of his wife and children--Roman Catholicism. Glen Owen and Nick Pisa, Blair DOES Do God--And Becomes a Catholic The Daily Mail, Dec. 22, 2007; Patrick Hennessy and Jonathan Wynne-Jones, Tony Blair Turns Catholic in Private Ceremony, The Telegraph, Dec. 23, 2007; Garry O'Connor, The Cherie Factor on the Road to Rome, The Daily Mail, Dec. 22, 2007; Vatican Hails Blair Church Switch, BBC News, Dec. 23, 2007. The whole affair has been well known and transpired in slow motion. Ruth Gledhill, Jeremy Austin and Philip Webster,Blair will be welcomed into Catholic fold via his ‘baptism of desire’, Times Online, May 17, 2007.

The Surveillace State: Monitoring as Regulation, Information as Power

In many ways, the idea of the all powerful regulatory state has been passing into history. In its place is arising the monitoring state--a political organization whose functioning depends on its ability to observe, and through observation, manage the behavior of the community of its members, all of whom can be expected to behave because they have internalized the idea that they are constantly watched. Thus, modern government is increasingly built on the twin pillars of observation and management. And the critical element of this system is the ability to produce in the inhabitants of the monitored state the idea that they are constantly watched. The goal, of course, is to produce a state of constant self policing, so that even when the observation ceases, the idea of observation is motivation enough. See Michel Foucault, Security, Territory, and Population, in: MICHEL FOUCAULT, ETHICS: SUBJECTIVITY AND TRUTH, (Paul Rabinow, ed., New York: The New Press, 1997:67-71).

The Global Media and the Scripting of Fidel Castro's Exit

It is a truism of sorts, that the media has been engaging more and more directly in the creation of a reality they can then report as news. Since the late 18th century in the West, the media has been as much an active creator of news as its reporter. We have come to understand, for example, the inevitable shape of the Israel-Palestine settlement, of independence for Kosovo, of the end of (now ex-)General Musharraf of Pakistan, and of the need for the United States to behave differently when it comes to the use of public power over environmental issues.

Now, at last, important elements of the global media have decided that Fidel Castro must go. And they are jumping on his words to help him on his way.

Markets in Infants: The Hague Convention on Intercountry Adoptions, National Reform Efforts in Guatemala and Consumerism in the United States

Everything has always been for sale in the global entrepots that serve the master classes of global society--whether they be Western matrons or high ranking members of a nomenclatura, or the scions of plantation cultures in search of new amusements. The difference between this and earlier ages, perhaps, is the ease with with such transactions may occur. As the cost of production and distribution has gone down, the propensity of culture to elaborate and act on its morals increases. Technology, innovation, and the growth of markets (whether or not regulated by the state or some suitable alternative mechanism) has made it possible to indulge the moral senses in ways unimaginable a century ago.

With the exception of the abolition of formal slavery and the emancipation of women, the moral sense of the status and condition of children has undergone a singularly dramatic change.

Democracy Part VII: Constitutionalism and Indigenous Peoples in the Bolivian Constitution

Democracy has many fetish objects. I have suggested a number of them--elections (Democracy Part VI), voting (Democracy Part IV, Democracy Part II), factions (Democracy Part III), representation of the popular will (Democracy Part I) and public assembly and agitation (Democracy Part IV).

I want to focus on another--the individual and the construction of the individual collective comprised of aggregated natural persons, which assumes an autonomous political life of its own.


In the United States the individual--at least as a formal matter--assumes a sort of pride of place that has caused even the American Constitution to be reworked, from time to time. See, e.g., Baker v. Carr, 369 U.S. 186 (1962) (in which state were made impotent to mimic the institutional organization of the American federal government because such an organization was anti democratic as the federal constitution was said to have developed that notion). But as Baker v. Carr also suggests, not all the time. Indeed, the value of Constitutions is, from time to time, to provide structural exceptions even to the most basic foundational norms on which the state itself is constructed. Thus, while the American republic was built on the idea of the individual, individual participation could be restricted to an exercise only in the construction of secondary governments. But at least the people, individuals, could take comfort in the knowledge that they might rise up (collectively) ad change that result by the amendment of the federal Constitution itself. No easy task. Thus democracy takes a pretty turn.

The individual, then, might count more as a symbolic matter than as a matter of fact. Nowhere is that more apparent than in the rise of identity sensibilities, the modern version of the old 19th century European ethnos. Ethnos, when combined with both chauvinism, histories of oppression, and xenophobia, make for the modern cocktail of transnational constitutionalism. Just as the American federal constitution excepted the individual from the construction of its own governmental apparatus (for the quite sensible reason that the federal government was to represent the union of states--something that is quickly receding into a dim political memory in the United States), so can other states repackage the lowest common denominator of sovereign power, vesting it not in states, but in sub-national collectives of any description. These might be based on religion (Lebanon/Iran), language (Spain), caste (India), or ethnicity (Iraq). Collectives, rather than individuals, provide a substitute basic building block of the state. And the state assumes a role as a higher order collective, but not as the sole collective vested with political power. Power is diffused among the collectives through which the state now acts. Diffusion of political power in sub- or non-national collectives also diffuses political power in ways that will change the character of states as we had come to understand them at the middle of the 20th century. But it also serves to reduce the power of the individual vis a vs the state. The state, now a second order political institution, may only be reached through a collective to which the individual is assigned, or from whence she is deemed to emerge. Direct action becomes more difficult. Collective personality leverages individual political power, and also reduces that power into the collective.

One of the more important wrinkles in this emerging pattern of relationships between the individual and the state involves the constitution of collectives as persons, with rights similar to those available to natural persons. Collective person hood reworks the dynamics of democracy and the constitution of government in a number of respects. In Latin America especially that reinvestment has been focused on the reconstitution of indigenous peoples with political power--not as individuals all belonging to a particular community--but as members of a political collective with an authority greater than any individual, to participate in the political life of states. In the proposed Bolivian constitution, one sees a great example of the progression of state organization along those lines. Bolivians Approve Draft Charter BBC News, Dec. 9, 2007. It is a harbinger of the future and a taste of the tension that constitutionalism will face--even as a formal matter--between the grounding of power in the individual and its exercise only indirectly through collectives sprung up for the purpose of mediating power between the individual and the state. The result will create a greater role for individuals as the fetishes of democratic organization even as individual power increasingly shifts elsewhere.

The old European cocktail of ethnos is well in evidence in Bolivia's constitutional transition. One might well be listening to indigenous Slovaks speaking of the 900 year oppressive colonizing hegemony of the Magyar invaders in 19th century Austria-Hungary when one hears the rhetorics of new constitutionalism in Bolivia: "Morales's supporters -- who represent a slim majority of the assembly -- say that a new constitution would allow him to "de-colonize" the country and direct more resources and political clout to the country's indigenous majority. But his opponents warn that he is using the constitution to centralize power and create a nondemocratic socialist state." Monte Reel, Bolivians Assembly Attempts to Pass Draft Constitution, Washington Post, Dec. 9, 2007 at A-28. And the power of supra national communities makes it more likely that national questions, even national questions of constitutional law will be subject to discussion, and the involvement of the transnational elements of supra national communities (collectives) seeking to divide national power among themselves. This lesson has not been lost on the Bolivians. " Four of the country's governors traveled to the United States last week to appeal for action from the United Nations and the Organization of American States. On Friday, the commander of Bolivia's air force accused the opposition governors of trying to foment a coup." Monte Reel, Bolivians Assembly Attempts to Pass Draft Constitution, supra.

Miguel Centellas, at Dickinson College, provides a useful review of the politics of the proposed constitution. His description of both the shape of the proposed constitution and the manner of its passage is telling, especially for advocates of popular democracy.

"The document is being read quickly & voted w/ little debate. Less than 24 hours after the assembly voted to meet in Oruro, newspapers report that 147 of the articles were ratified. The document is 100 pages long, has 408 articles in total. As of a few weeks ago & about 15 months after its installation, not a single article had been agreed upon by the body, which nearly fell apart. The rushed vote is conducted, as in Sucre, w/ thousands of cocaleros and pro-MAS miners guarding the meeting site. The opposition PODEMOS is no longer participating in the process & five regional civic committees have already rejected the new document."

Miguel Centellas, New Constitution?, Pronto, Dec. 9, 2007. All the fetish elements of democracy are much in evidence: popular assembly, voting, elections, individual and collective power, representative democracy. But I focus on the structural problems of a democratic state that seeks to be everything to everyone, that conflates the individual with a variety of collectives and ultimately with the state, and that merges direct and indirect principles of democratic organization in a state the governmental apparatus of which can satisfy none of its aspirational objectives.

I will provide an example of the contradictions and tensions inherent in the new collective individual as a subject of national constitutional orders. For this purpose I focus only the contradictions inherent in the Bolivian self conception of the state and state power in the initial provisions of its new constitution. What emerges is a cafeteria constitutionalism that can, like the prostitutes in Genet's play, The Balcony (Le Balcon (1956)), serve the desires of anyone willing to extract and privilege the appropriate set of provisions. The Bolivian Constitution, though, most powerfully serves as the vehicle for constituting collective personhood, which enjoys both a horizontal and vertical relationship with individuals and the state.

Article I provides a partial declaration of the nature of the constitution of the Bolivian state: a unitary, pluri-national, communitarian state that is free, autonomous, decentralized, independent, sovereign, democratic and intercultural. ("Bolivia se constituye en un Estado Unitario Social de Derecho Plurinacional Comunitario, libre, autonómico y descentralizado, independiente, soberano, democrático e intercultural. Se funda en la pluralidad y el pluralismo político, económico, jurídico, cultural y linguístico, dentro del proceso integrador del país." (Proposed Constitution Art. 1). Bolivia, in the most innocuous reading of this provision, is no more than the sum of its parts, and these parts are horizontally rather than vertically arranged. Yet, as will be apparent in Article 2, this is not quite true.

The potential international contradictions in Article I are compounded by the provisions of Article 2. Within the unitary Bolivian state, the Spanish conquest is undone. Indigenous peoples are reconstituted as political bodies that will be treated as autonomous, and self-regulating. Each of their collective communities is entitled to protection of their cultures, the recognition and consolidation of their respective institutions ansd territories--consistent with the Constitution ("Dada la existencia precolonial de las naciones y pueblos indígena originario campesinos y su dominio ancestral sobre sus territorios, se garantiza su libre determinación en el marco del Estado, que consiste en su derecho a la autonomía, al autogobierno, a su cultura, y al reconocimiento y consolidación de sus instituciones y entidades territoriales, conforme a esta Constitución.")." (Proposed Constitution Art. 2). The indigenous communities, now reconstituted as governments, now stand between the individual and the state. Each of these communities precedes the state, yet all owe their reconstitution to the state. Still, the state may not strip these subordinate units of their power without undoing their commitment to pluri-nationalism in Article I.

With Article 3, the provisions move from the foundational character of some (but not all) of the sub national collectives that make up the Bolivian state, to the relationship between these collectives and the ultimate collective--the state. This article suggests a vertical relationship between sub national collectives and the state yet also reinforces the a suggestion that the collectives identified in article 2 are hierarchically superior to the other forms of collective described in article 3. It also might suggest the exclusion of all other groups in their political constitution and relation to the state. The Bolivian people are constituted from out of the collection of identified groups and communities: urban communities of different social classes, indigenous nations and communities identified as rural, along with collectives described as inter-cultural and Afro Bolivian ("El pueblo boliviano está conformado por las bolivianas y los bolivianos pertenecientes a las comunidades urbanas de diferentes clases sociales, a las naciones y pueblos indígena originario campesinos, y a las comunidades interculturales y afrobolivianas."). (Proposed Constitution Art. 3).

Though thus built on the differentiation of Bolivians along ethnic, social, race and class lines, the Constitution also declares the primacy of the individual in the constitution of the state. But does it? Sovereignty, it is declared, resides in the Bolivian people and is exercised directly, as an inalienable, indivisible, and may neither be impaired nor delegated, ("La soberanía reside en el pueblo boliviano y se ejerce de forma directa. Es inalienable, indivisible, imprescriptible e indelegable. De ella emanan las funciones y atribuciones del poder público.") (Proposed Constitution Art. 7). Yet the Bolivian people include not just individuals but also communities (Arts. 1 and 2). Some people, constituted as communities, may exercise both individual and collective political power. Others may not.

The primacies inherent in the partial communal nature of the state is confirmed in Article 11(I) in which it is declared that the state adopts as the form of its state apparatus a representative and communitarian form of participatory democracy ("El Estado adopta para su gobierno la forma democrática participativa, representativa y comunitaria, con equivalencia de condiciones entre hombres y mujeres." (Proposed Constitution Art. 11(I)). The individual is constitutionally relegated to her status. That status may be privileged (Art. 2) or based on race, class or culture (Art. 3). But only one form of status is principally vested with political power--that or membership in rural indigenous communities ("Comunitaria, por medio de la elección, designación o nominación de autoridades por normas y procedimientos propios de los pueblos y naciones indígena originario campesinos, entre otros." (Proposed Constitution Art. 11(II)(3)). For the rest, there is direct and representative democracy based on the assertion of individual power. (Proposed Constitution Art. 11(II)(1) & (2)).

That reconstitution of individuals as both people and certain collectives is carried over into the constitution's discussion of individual rights. The state guarantees to all individuals and collectives, without any discrimination, the free and effective exercise and enjoyment of the rights established under the constitution, the law and international treaties ("El Estado garantiza a todas las personas y las colectividades, sin discriminación alguna, el libre y eficaz ejercicio y goce de los derechos establecidos en esta Constitución, las leyes y los tratados internacionales.") (Proposed Constitution Art. 14(III)). Included among the later, and especially applicable to politically constituted indigenous communities, might be the United Nation’s Declaration on the Rights of Indigenous Peoples (2007), adopted by the Sixty First United Nations General Assembly Plenary at its 107th & 108th Meetings in September 2007. (United Nations 2007). A hint of the relationship, and its constitutional impact might be gleaned from the comments of the Bolivian foreign minister at the time of the adoption of the Declaration.

DAVID CHOQUEHUAUCA, Minster of Foreign Affairs of Bolivia, said that the world’s indigenous peoples, with their characteristic patience, had waited 25 years for the adoption of the historic Declaration. While the text was being negotiated and re-negotiated at many levels, Mother Earth had gone through innumerable changes, politically, socially and environmentally. Now, at the day of the adoption of the Declaration, the Planet was clearly wounded. Indigenous peoples had been and would continue to raise their voices to ensure the protection and preservation of Mother Earth. The Declaration was a step forward. It did not solve the problems of the Planet, nor ease the tensions between people. But, it was a step forward in allowing indigenous people to participate in global processes for the betterment of all societies, including their own traditional communities. By the Declaration, they were not trying to live better than anyone else. They were merely trying to “live like” everyone else. Indigenous people were trying to exercise the same rights -– in the same manner –- as all the people of the world.

Id. And thus the special place of indigenous communities within Bolivian Constitutionalism, the details of which are confirmed in Chapter 4 of the constitution. But there is great irony as well. The indigenous communities are constituted as political actors by operation of the constitution itself. They consist of those collectives that pre-date the Spanish colonization. ( "Es nación y pueblo indígena originario campesino toda la colectividad humana que comparta identidad cultural, idioma, tradición histórica, instituciones, territorialidad y cosmovisión, cuya existencia es anterior a la colonia espanola." (Proposed Constitution Art. 30(I))). A number of rights are preserved to these collectives. Among the 18 categories of rights resreved ot indigenous communities are: collective rights to land and intellectual property, and to the exercise of their political, judicial, and economic systems in accordance with their view of the world (cosmovisión) (Proposed Constitution Art. 30(II))). Among the rights guaranteed is one that elevates collective identity as indigenous to a rank (almost) equal to membership in the state collective--the right to have their collective identity noted on their passports and identity papers. ("A que la identidad cultural de cada uno de sus miembros, si así lo desea, se inscriba junto a la ciudadanía boliviana en su cédula de identidad, pasaporte u otros documentos de identificación con validez legal." Proposed Constitution Art. 30(II)(3))). For Europeans raised under the spectre of National Socialism and genocide, such a right would be viewed with some horror, and indeed, early European Court of Justice case law built a strong human rights oriented legal framework on the rejection of such a power. See, e.g., Nold v. Commission, 4/73 [1974] ECR 491. But that is the point--constituting the collective as the "individual" of constitutional law produces results considerably different from systems in which a person is the the "individual of constitutional law. See Larry Catá Backer, On Freedom, the Individual, the Collective and the State: Gunnar Beck, Fitche and Kant on Freedom, Rights, and Law (2007), Law at the End of the Day, Dec. 8, 2007.

The political power of the collective, as singular political actors within the state system of government, is articulated in twp provisions. The first guarantees indigenous collectives the right to be consulted y appropriate means and in particular through indigenous self constituted institutional organs whenever legislative or administrative measures might affect them, with an emphasis on consultation touching on the exploitation of natural resources within indigenous territories ("A ser consultados mediante procedimientos apropiados, y en particular a través de sus instituciones, cada vez que se prevean medidas legislativas o administrativas susceptibles de afectarles. En este marco, se respetará y garantizará el derecho a la consulta previa obligatoria, realizada por el Estado, de buena fe y concertada, respecto a la explotación de los recursos naturales no renovables en el territorio que habitan." Proposed Constitution Art. 30(II)(15))). Indigenous communities are also guaranteed the right to participate in the organs of state ("A la participación en los órganos del Estado."Proposed Constitution Art. 30(II)(18))). Indigenous collectives with territorial integrity may also exercise certain (municipal) powers within their territories (Proposed Constitution Arts. 303-304, 399).

But these provisions constituting political communities is not limited to indigenous communities. The Bolivian constitution also constitutes as a political actor another ethnos--Afrobolivians. The Afrobolivian nation will also enjoy in all that corresponds to their condition, those economic, social, political, and cultural rights accorded to indigenous communities under the constitution ("El pueblo afroboliviano gozará, en todo lo que les corresponda, de los derechos económicos, sociales, políticos y culturales reconocidos en esta Constitución para las naciones y pueblos indígena originario campesinos." (Proposed Constitution Art. 32)). AfroBolivians, like Indigenous Bolivians have a right to collective personhood. But no other groups may join together for the assertion of such communal rights. To them, there is merely individual but not collective personality.

Lastly, collective persons recognized as such in the constitution, like individuals, are guaranteed rights and protections similar to those offered to natural persons. These include the right to popular action. (Proposed Constitution Arts. 138-139)), the right to recourse to the process of constitutional amparo (Proposed Constitution Arts. 131), to privacy protection (Proposed Constitution Arts. 133), to seek a declaration of unconstitutionality (Proposed Constitution Arts. 135), the protection of the public defender (Proposed Constitution Arts. 229-233).

Bolivia will provide an interesting experiment in the reconstitution of the basic elements of democratic state organization. The natural person may soon have to give way to the collective person as the foundational building blocks of states. Where states become containers for a host of subnational communities unable or unwilling to reconstitute themselves socially or politically as a single integrated whole, the individual may have to be jettisoned as the basis of democratic state organization in favor of the communities that separate individuals form each other but which may serve as the only bridges to unity within traditional territorially constituted states.

On Freedom, the Individual, the Collective and the State: Gunnar Beck, Fitche and Kant on Freedom, Rights, and Law (2007)

The great questions of any age in transition are ontological. Yet, such questions are generally lost amidst the large number of academic technicians who, even as the foundations of social organization shift—and shift dramatically—continue to work feverishly to fill in all of the details of a system quickly moving from vigor to decadence and ultimately to irrelevance. Still, as in every age, there are those who rise above the technicalities of a changing age. Such is the case with Gunnar Beck’s recent, and in many ways profound, interrogation of the dynamics of an age at a crossroads. Gunnar Beck, Fitche and Kant on Freedom, Rights, and Law (Lanham, MD: Lexington Books, 2007).

A review follows, one which focuses on the great problem of this century--collective as individuals and individuals as, well, something else.

Hadaka no Mochitsuki: On Ritual, Tradition, and Law

The Asahi Shimbun reminded its English language readers of an important event that occurs on December 5 every year in Japan--Hadaka no Mochitsuki. Traditional 'Mochi' Makers Grin and Bare It, Asahi.com, Dec. 5, 2007.

In a centuries-old ritual, young men hoist freshly made "mochi" to the ceiling of Sengenji temple in Yonezawa, Yamagata Prefecture, on Tuesday in gratitude for a good rice harvest. The event, formally called Horohado no Toshikoshi-Matsuri (Year-end festival at Horohado hall) but more commonly known as Hadaka no Mochitsuki (Mochi-making by naked men), dates back 360 years or so to when crop-eating insects reached plague proportions in the area and local people solved the problem by dumping soil from under the temple hall on their rice paddies. Since then, the event has been held annually. While singing traditional songs, young local men pound rice in mortars to make mochi and then hoist the finished product to the ceiling, where it comes into contact with soot. Temple priests say the mochi then tastes more delicious.

Traditional 'Mochi' Makers Grin and Bare It, supra. Mochi, of course, "(Japanese: 餅; Chinese: 麻糬) is a Japanese rice cake made of glutinous rice pounded into paste and molded into shape. In Japan it is traditionally made in a ceremony called mochitsuki. While eaten year-round, mochi is a traditional food for the Japanese New Year and commonly sold and eaten at that time." Wikepedia.

There is something for everyone in this story.

Democracy Part VI: Elections, Representative Democracy and Hong Kong

Full, free and direct elections. That is the essence of legitimate expressions of the political will of the masses. Its absence stokes the flames of arguments touching on "democratic deficits" (especially in Europe) and fueled the elitist political movements of the early part of the 20th century in the United States that eventually produced the 17th Amendment and the direct election of Senators (freeing them from the influence of machine--that is immigrant--driven local politics). Who could possibly be against direct elections for representatives to legislative assemblies or for the executive holding the princely power (under constitutional constraints, of course).

There is, of course, a certain formalist fetishism to the notions so valued by Western thinkers and their media popularizers. The important thing, it seems is the direct connection between voter and representative. What is required is a voter, an election and a person running for office who might be elected. People tend to be less fussy about the mechanics of this legitimating process, especially the processes through which people stand for election. Appointed representatives are viewed as the antithesis of this system. Its representatives are suspect and presumptively non democratic in their relation to the masses and in their wielding of state power. But this focus on the photo opportunity aspects of voting, of direct elections for people standing for election, of the famous purple finger of the so-called Iraqi elections of January 2005, might mask more interesting features of such systems.

Those interesting features of full, free and direct elections was recently highlighted by one of the great institutional media proponents of the current fetishist formalist system of voter direct democracy.

Democracy Part V: Pakistan Administered

In Democracy Part IV, I Suggested a significant managerial aspect to constitutionalism and the rule of law as applied. As praxis, it represents a transfer of power from political principals (elected officials or divinely legitimated sovereigns) to managers. But this cannot surprise in an age generally characterized by its managerialism in all aspects of life. Pakistan is to be suspended from its membership in the Commonwealth until it conforms to expectations of transnational constitutional rule of law conduct. Pakistan Suspended From Commonwealth, CBCnews.ca, November 22, 2007.

The group said Musharraf had failed to meet the 53-member organization's Commonwealth deadlines to resign as army chief, allow a free press, hold elections, and restore the power of his country's judiciary. "It was not an easy thing to do," Secretary of State for Foreign Affairs Helena Guergis said of the suspension. "But in the end, we all believe we've all made the right decision — in support of democracy, in support of the people of Pakistan." Guergis said Canada's position has been very clear that all members of the Commonwealth have an obligation to defend democracy. "We adhere to and we support the principles of democracy and right now we have to uphold that," she said. "We have to stand behind that and we have to support that and Pakistan has not done that."

Id. Pakistan reacted as one might expect: "The government in Islamabad shrugged off the threat, saying it would manage the transition to democracy in its own way and on its own timetable. It signalled its defiance by ordering the detention of the People's party leader, Benazir Bhutto, for seven days - pre-empting her plans to lead a "long march" from Lahore to Islamabad in protest against emergency rule." Julian Borger and Declan Walsh, Commonwealth Ultimatum to Pakistan, The Guardian, November 13, 2007. Indeed, one of the most potent messages of the Commonwealth action was both its symbolic value--the community of states enforcing norms against a member state, irrespective of that state's "power" to act as it might, and the importance of African states in that disciplining. "Democratic values are a cornerstone of Commonwealth membership. African states, which have been warned against staging military coups, feel strongly that they were duped by Britain into allowing Pakistan back into the Commonwealth in 2004 with a promise from General Musharraf that he would doff his uniform." Anne Penketh, Commonwealth Crisis Meeting Called Over Ban, The Independent, November 7, 2007.

So managerialism is now come to constitutional law--as has the power of the community of nations over individual states. And with managerialism has come a certain degree of juridificaiton. Lawyers and judges control democracy now. Justice Coke would have been pleased with the sentiment--though bewildered with the result. See Larry Catá Backer, Reifying Law: Government, Law and the Rule of Law in Governance Systems, 26 Penn State International Law Review -- (2008).

And it had effect!

But, there is loss to its international standing. The Commonwealth decision comes as a rap on the knuckles: well short of a slap in the face, but a public embarrassment nevertheless. And it can be argued that democratically elected leaders representing a couple of billion people have now spoken against Musharraf formally. Suspension clearly hurts Pakistan enough for its leaders to have written to CMAG (comprising Malta, Lesotho, Sri Lanka, Malaysia, Britain, Canada, Tanzania, Papua New Guinea and St Lucia) to argue against such a move. The argument convinced enough members for CMAG hold off from harsher action until the elections, promised for Jan. 8. The suspension of Pakistan from the councils means exclusion of its representatives from participation in all inter-governmental Commonwealth meetings and in other inter-governmental Commonwealth activities, including CHOGM (the biennial Commonwealth Heads of Government Meeting, currently underway in the Ugandan capital, Kampala).

Sanjay Suri, Commonwealth-Pakistan: Suspended But not Banished, IPS News, November 23, 2007. It did not tale long for General Musharraf to blink, and for the judges and lawyers--with their own agendas, not necessarily democratic, but certainty anti-Musharraf--to appear to triumph. Though maybe not democracy--just its simulacrum. But then, that is all that matters. Simulation is its own reality, and the basis of legitimacy within the family of nations.

"The Commonwealth restored Pakistan's membership yesterday in recognition of the democratic steps taken there since the country rescinded emergency rule late last year. The 53-member organization said it welcomed Pakistani ruler General Pervez Musharraf's decision to step down as chief of army staff and the easing of restrictions on the country's media. The organization said that, while concerns remained over the independence of the country's judiciary and the need for electoral reform, Pakistan "had taken positive steps to fulfill its obligations" as far as the body's democratic principles were concerned."

Raphael G. Satter, Pakistan Rejoins Commonwealth, The Independent, May 13, 2008.

Being a Part and Standing Apart: On the Culture of Law Faculties

What follows is a message delivered to the members of the Section on Minority Groups, Association of American Law School's as part of the 2007 Section Newsletter. It might be of interest to those who like to think about the institutional aspects of academic life. And it suggests that no relationships are ever as simple as they might appear.

Democracy Part IV: Managing Popular Expression and the Democratic Impulse in Sudan

Governance elites like to point to happy (unhappy and even indifferent) citizens voting as the essence of democratic organization. Larry Catá Backer, Democracy Part II, LAW AT THE END OF THE DAY, Nov. 16, 2007. And not just citizens of Anglo-European style democratic constitutional states. See Fidel Castro Ruz, Reflexiones del Comandante en Jefe, The Elections, Oct. 19, 2007 (“Having more than 90 per cent of all citizens voting in the elections and school children guarding the ballots is an unheard of experience; it’s hard to believe that this occurs in one of the “dark corners of this world”, a harassed and blockaded country named Cuba. That is how we exercise the vigorous muscles of our political awareness.”) (in the original Spanish as “Las elecciones”.

Democracy, Part III: On Popular Participation in the Electoral Process in the United States

City
Arthur Rimbaud

I am an ephemeral and a not too discontented citizen of a metropolis considered modern, because all known taste has been avoided in the furnishings and the exterior of the houses, as well as in the lay out of the city. Here you would find no trace of any monument of superstition. Morals and language are reduced to their simplest expression, at last! These millions of people, who do not even know each other, conduct education, business, and old age so similarly, that the course of their lives must be several times less long than that which a mad statistics finds for the peoples of the Continent. Moreover, while from my window I see new specters rolling through the thick and eternal city smoke—our woodland shade our summer night!—new Eumenides in front of my cottage, which is my country and all my heart since everything here resembles it,--Death without tears, our diligent daughter and servant, a desperate Love, and a petty Crime howl in the mud of the street.

Arthur Rimbaud, Democracy, in New Directions (Louise Varèse, trans.) reprinted in Baudelaire, Rimbaud, Verlaine: Selected Verse and Prose Poems 224 (Joseph M. Bernstein, ed., Secaucus, NJ: Citadel Press, 1947).

Like Rimbaud, we are all citizens, not too discontented, of a metropolis considered modern—up to date! We have absorbed all tastes in order to avoid any, other than a taste for absorption, homogenization, simplicity, and reason. We are all so nice! We are so sensitive! And it is on that basis that modern democracy operates so successfully—as countless numbers of individuals perform participation by voting. And even more are invited to share their views with each other—and through those organs of metropolitan living in which, suitably absorbed, homogenized, simplified and rationalized, they might contribute to the formation and elaboration of suitably metropolitan ideas. And thus processed, thought becomes conventional—and the foundation of a reality that is eventually confirmed—in one or another approved form—by an approving electorate. Voting is the maddest of modern statistics. Ideas and their confirmation—the twin specters of modern political life, processed and performed through an institutional matrix that ensures that all tastes are accounted for and none show. The collective constructs and then approves itself.

These insights were a great help in parsing through the superlative efforts of our betters to motivate the rest of us out of our collective torpor and to political action, the fruits of which will be manifested in the performance of affirmation through voting.

¿Por qué no te callas?

In an exchange little noted outside the Spanish and Portuguese speaking Americas, Hugo Chavez and King Juan Carlos of Spain engaged in a dialog of sorts at the Latin American Summit held in Santiago de Chile during the second week of November 2007.
As reported in the English press, during a speech at the Latin American Summit

Mr Chavez, the outspoken Left-wing leader who called President George W. Bush the "devil" on the floor of the United Nations last year, triggered the exchange by lashing out at the former Spanish prime minister José Maria Aznar."Mr Aznar, a conservative who backed the US-led war in Iraq, "is a fascist", Mr Chavez said in a speech to leaders at the Ibero-American summit in Santiago, Chile. The Venezuelan leader added: "Fascists are not human. A snake is more human."

Ben Quinn, Spanish King Tells Hugo Chavez to 'Shut Up,' The Telegraph, Nov. 12, 2007. 

Democracy Part II: Voting Among the Unruly Masses

The Mirror
A hideous man enters and stares at his Reflection in the looking glass.
“Why do you look at yourself in the mirror, when your reflection never gives you any pleasure?”
The hideous man replies: “Sir, according to the immortal principles of 1789, all men have equal rights; therefore I have the right to look at myself; and whether with pleasure or with displeasure, concerns only my own feelings.”
In the name of common sense, I was certainly right; but from the legal point of view, he was certainly not wrong.

Charles Baudelaire, The Mirror, , in New Directions (Arthur Symons, trans.) reprinted in Baudelaire, Rimbaud, Verlaine: Selected Verse and Prose Poems 168 (Joseph M. Bernstein, ed., Secaucus, NJ: Citadel Press, 1947).

And thus, a mirror on voting:
 

Democracy Part I: Democracy, Gesture and Power

The world has seen a fair amount of democracy over the last eight years. President Bush made it a cornerstone of his foreign policy. "So it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world." Inaugural Address by George W. Bush, The New York Times, Jan. 20, 2005.

From the Palestinian Territories, to the Ukraine, from Iran to China, from Venezuela to the United States, the air is filled with the scent of democracy—that palpable expression of the will of the people, thrusting from the street and into the apparatus of state as an irresistible force of nature. Or of some reasonable equivalent force satisfactory to those projecting power.

Announcing Book: Harmonizing Law in an Era of Globalization: Convergence, Divergence, Resistence

I am happy to announce the publication of a collection of essays: Harmonizing Law in an Era of Globalization: Convergence, Divergence, Resistance, published by Carolina Academic Press. I include a short abstract and the opening materials of the book below. Summary materials may also be accessed here.

The Treaty of Lisbon and E.U. Constitutionalism: Valery Giscard d'Estaing Makes a Good Point About Rule of Law and the Treaty of Lisbon

One has to admire the English press in general, and the BBC, in particular. They have never lost the culture of aggressive objectivity in the service of a cause that was their hallmark from the Second World War. It is a shame that it is more difficult to get consensus on an enemies list in this conflicted age. Nevertheless, when all else fails, there is always the French, or the European Union.

It must then have provided the editorial staff at the BBC some satisfaction to retell a story that scores against both: E.U. Treaty Same as Constitution, BBC News Online, Oct. 30, 2007, which it harvested from a story published earlier in the Independent. Ben Russell, EU Treaty is a Constitution Says Giscard d'Estaing, The Independent, Oct. 30, 2007. Both of these "reports" purported to describe comments published by Valery Giscard d'Estaing in the Independent, Valery Giscard d'Estaing, Commentary: The EU Treaty is te Same as the Constitution, The Independent, Oct. 30, 2007 on the proposed Treaty of Lisbon which is meant to substitute for the failed Constitutional Treaty.

Multinational Corporations as Objects and Sources of Transnational Regulation

It was my great pleasure to participate in the 2007 International Law Weekend organized in New York City by the American Branch of the International Law Association and held at the House of the Association of the Bar of the City of New York on October 25-27, 2007. My presentation, entitled "Multinational Corporations as Sources of Soft Transnational Regulation" was part of the panel "International Law Making and Non-State Actors: Toward New Paradigms?" I am grateful to my co-panelists, Lillian Aponte Miranda (FIU), Janet Levit (Interim Dean, University of Tulsa College of Law) and Heather Hughes (American), for their reactions and the insights their own work has provided to mine.

As described in the program notes for the conference, the panel addressed the impact of non-state actors on international law-making as well as the regulation of non-state actors under international institutional frameworks. It explored questions regarding the capacity of the supranational framework to account for the activities of non-state actors, particularly where alternate avenues for imposing responsibility and accountability on non-state actors may exist at the national and sub-national level. What follows is a summary of my presentation. There are no footnotes. A brief bibliography and reference list of the earlier work from which much of this talk is drawn and sources for the case note section of the work follows.

Hard Soft International Law: Indigenous People and their Treaties, Multinational Corporations and their Contracts

While academic lawyers worldwide continue to spend a lot of time engaging the great self referential questions of the day--does transnational law exist as a field, what makes comparative law distinctive, does international law include particular people or entities as objects or subjects, etc., the rest of the world moves on, without a bit of respect for the finely drawn lines academics spend a lifetime constructing.

So it is with the nature and value of treaties and contracts. Once understood as confined, respectively, to recognized and (and perhaps international) actors or to private and non governmental activities, both of these instruments have increasingly served as the basis for the construction of webs of binding and formal transnational relations among important actors, without so much as a nod to academic (and state sponsored) typological discourse.

These thoughts coalesced recently as I was listening to Frank Ettawageshik, Chairman of the Little Traverse Bay Bands of Odawa Indians. Chairman Ettawageshik described an interconnected world of tribal governance. That world bowed, as necessary, to the formally constituted world of state sovereigns. But it also assumed that such sovereigns are passing affairs, leaving only the land and those peoples with a connection to it. Consequently, tribal governance institutions ought to be free, amongst themselves, to negotiate and bind themselves, to the extent possible given the realities of the world, by treaties formalizing the nature of their relations and obligations.

From Hatuey to Che: Indigenous Cuba Without Indians and the U.N. Declaration on the Rights of Indigenous Peoples

On October 19-20, 2007, Michigan State University College of Law was fortunate to host the 4th Annual Indigenous Law Conference. This year, the theme was American Indian Law and Literature. My thanks to Matthew Fletcher and Wenona Singel for an excellent conference. My own contribution to that event focused on my work in Latin America, and specifically Latin American engagement in international law and national self constitution. What follows is an abstract and then an extended version of my presentation at the Conference. Comments and reactions, as always, are most welcome.

ABSTRACT: Indigenous peoples have been quite useful to political elites in Latin America almost since the time of the conquests by Spanish and Portuguese adventurers in the 15th and 16th centuries. In the 19th and early 20th centuries, indigenous people supplied the foundations for a trope, both literary and political, essential for the construction of cultural, ethnic, racial and political identities distinct from the traditional colonial masters of emerging Latin American states, as well as from that great power to the North. This paper looks at one aspect of this rich development by focusing on the “noble savage” and the construction of Caribbean (and principally Cuban) political identity and the formation of governance ideals. The heart of the paper examines essays of José Martí in the broader context of Latin indigenismo.

Castro on Che

It was with some interest that I read the extremely muted reverie posted by Fidel Castro Ruz on his old comrade in arms, the Argentine-Cuban Che Guevara. Fidel Castro Ruz, Reflections by the Commander in Chief, Che (October 7, 2007) English version. Spanish version. 

Some thoughts follow.

Gendering the President Male: Narrowing Rule of Law Constitutionalism in the American Context

What follows is a summary of a presentation made at the 12th Annual Meeting of LatCrit, held at Miami Beach on October 6, 2007. I want to thank all of the folks who met with us out in the Terrace for an informative panel.

Comments are welcome:

"The Scientific Concept of Development," The Rule of Law and the Proposed Amendments to the Constitution of the Chinese Communist Party

The public organ of the Chinese Communist Party recently announced what had been rumored for some time--proposed amendments to the Chinese Communist Party Constitution. Communist Party of China to Amend Part Constitution, People's Daily Online, Sept. 17, 2007. The amendment is expected to be adopted at the 17th National Congress scheduled on October 15, 2007 "The amendment should be made "under the guidance of Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory and the important thoughts of 'Three Represents,' and to reflect the major strategic thoughts the CPC Central Committee has set forth since the 16th CPC national congress was held (in 2002), such as the scientific concept of development," said the meeting." Communist Party of China to Amend Part Constitution, , supra.

These amendments will formalize Hu Jintao's stamp on Party governance, in a manner similar to that of his predecessor and the incorporation of the "three represents" (sange daibiao) theory into the normative structure of Communist Party governance. See Larry Catá Backer, The Rule of Law, The Chinese Communist Party, and Ideological Campaigns: Sange Daibiao (the “Three Represents”), Socialist Rule of Law, and Modern Chinese Constitutionalism, 16(1) Journal of Transnational Law & Contemporary Problems 29 (2006).

How does "scientific development" align with the current state of the development of the Chinese Communist Party line?