Tuesday, April 29, 2008

The Panopticon in Space: Holland and the Domestic Spy Eye in the Sky

It was only a matter of time before technology brought the oppressive hunger for control of many states--especially democratic states--a new toy. As I have suggested in a longer work, Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, 15 Indiana Journal of Global Legal Studies -- (forthcoming 2007), states are moving toward systems of regulation not through law but with surveillance. Behavior is to be controlled through monitoring and incentive. Law--positive commands to to or not do certain things--will increasingly assume the role of administrative regulation: specific directions to behavior in increasingly minute aspects of behavior. Modern democratic states are now able to assert a measure of control of individual behavior that, in another time, might have been thought of use only to totalitarian leaders with a pathological need to control behavior. Traditionally, in democratic states, culture and non-political institutions, bore a great responsibility for the inculcation of basic social and behavioral values. Legislation might fill in the gaps, or seek to move these cultural understandings, but would not substitute for them. But exceptions since the early 20th century has proven the rule. In the United States, for example, the state took a leading role in changing cultural notions of racial and gender relations. That required increasingly complex and sophisticated legislation. Law became administrative and a cultural substitute. A similar arrangement took place in the regulation of economic relationships. Though the state had traditionally intervened more vigorously in this area, the character of those interventions changed dramatically from the end of th 19th century, and since the early 21st century has essentially sought to substitute the state for other foundations of economic culture. The result has been a greater emphasis on surveillance, disclosure and transparency. See Larry Catá Backer, Surveillance and Control: Internal, External and Governmental Monitoring of Corporate Insiders After Sarbanes-Oxley, 2004 MICHIGAN STATE LAW REVIEW 327 (2004).

The intrusiveness of law, and its substitution for what Michel Foucault called govermentality, was further accelerated as non-governmental institutions increasingly lost their legitimacy as sources of political culture. This trend was deepened as democratic societies blame more self consciously multi-cultural, multi-racial, and multi-ethnic. In that context, the least common denominator of culture proved increasingly to be the state and its apparatus. Alas, then, the world has made great strides in another direction since 1945. The future of law is not so much the legislative expression of the popular will but the monitoring of individuals and the increasingly minute prescription of behavior. In this world deviance will be easier to control--that is to say, difference will be better domesticated in a world in which surveillance and regulation will substitute for culture and assimilation of values. This is the Eden of the totalitarian, it is now ours. Law is being used as a substitute for culture in the construction and enforcement of even the most basic behavioral norms. And the political state stands at the center of this web of law based culture.

But with all great changes, so with this one--the fundamentals first change in the smallest and least significant matters. Habits are changed not by challenging fundamentals but by training the citizenry to new behavior patterns in the mundane everyday tasks of life. There is nothing more threatening than the assertion of state control over the smallest actions of life--yet there is little else that is harder to resist. Banality is the greatest defense of the most far reaching changes. And as small habits change, attitudes can be massaged to accept without resistance the greater imposition. Resistance is futile when so little appears to be at stake. See Larry Catá Backer, Race, “The Race,” and the Republic: Reconceiving Judicial Authority After Bush v. Gore, 51 CATHOLIC UNIVERSITY LAW REVIEW 1057 (2002).

It was with this in mind that I read an interesting article in a Spanish publication, D.G. Bujarrabal, Los satélites verán por dónde andan en coche, Qué, May 5, 2008. "Holanda ha aprobado una medida pionera en el mundo y que hará que más de un conductor tenga que rascarse el bolsillo. Se trata de un peaje electrónico basado en navegación por satélite y que establece el pago en función de los kilómetros que cada vehículo recorra en cualquier carretera del país." Los satélites verán por dónde andan en coche, supra., ("Holland has approved a pioneering first of its kind measure and that will cause more than one driver to reach into his pocket. This measure will create an electronic toll based on satellite navigation systems in autos that imposes charges on car use based on the kilometers that each vehicle travels in any highway of the country") The system will obtain a subtantial amount of information about every vehicle and its use in Holland: every automobile will now have a record stored in the servers of the state. That record will consist of the use of the auto on the roads of Holland.

And the purpose of this vast system of surveillance is banal: the imposition of taxes and fees for use of the roads. With this system the state can not only monitor usage but also seek to change behavior by altering its fee structure to suit its sense of appropriate behavior on the road. " Los precios variarán según el vehículo (si es un medio de transporte colectivo, un todoterreno o un utilitario más o menos antiguo), los horarios y el tipo de vía por el que se circule." Id., ("Prices will vary by vehicle model and type (if it is a collective transport, an all terrain vehicle or a by age of vehicle), the time of use and the type of road used.").

What could be more just? "“Es un sistema más justo que el actual porque pone precio a la contaminación que realmente generamos”, explica Miguel Ángel Martínez Olagüe, director de Desarrollo Corporativo de GMV, una empresa española que participa en el complejo desarrollo tecnológico, del que ya se están haciendo las primeras pruebas piloto." Id. ("It is a fairer system than the one used now because it prices the pollution which we actually generate", explains Miguel Angel Martinez Olagüe, director of Corporative Development of GMV, a Spanish company that participated in the system's complex technological development, which is already undergoing pilot testing.") The great principles are thus deployed in the defense of this system--fairness, sustainability, traffic control, and the like. This is hardly the stuff to raise eyebrows. It is difficult to conceive of its benign purposes as sinister in the least. Indeed, privacy concerns are dismissed as paranoid: "Martínez Olagüe asegura que “no hay un seguimiento continuo, los datos se registran y se descargan sólo cada cierto tiempo”. Además, explica que en el centro de proceso de datos se utilizarán “códigos de anonimato” que impedirán asociar una persona con sus movimientos por carretera." Id. (Martínez Olague assures us that "there is no a continuous monitoring, the data are registered and discarded only during specific time periods." In addition, he explained that the collection units will employ data anonymity codes that they will impede the the association of individuals with his movements on the highway").

But information has no limits. Anonymity protocols are nice, but they will hardly impede a state or other actor with authority to overcome the anonymity barriers. information can always be diverted to new purposes. It long survives it useful life, especially when the state finds other uses for the information. It will be necessary, for example, at the most prosaic level, for studies to be conducted on road use, or the use of certain types of cars. The European Union will likely be interested in the data for its own purposes. And intelligence agencies, of course, will be delighted with th information for its own purposes. But most important, perhaps, is the recourse to satellite monitoring for both taxation and for changing culture. In this case the changes are innocuous--th driving habits of those who use the roads in Holland. But tools, once developed, will find other uses.

Sunday, April 27, 2008

Soft Islam in Egypt: Does the Testimony of Two Women Equal that of a Man and Other Questions

Al Ahram ran an interesting story recently on movement within Shari'a in Egypt. Reem Leila, In Her Favour, Al Ahram Weekly, May 1-7, 2008. The report provides a window not only on the way that even Shari'a modulates in the face of changes in popular thought, but also reveals the constraints of the language employed in the service of change. Just as the United States judiciary speaks a particular sort of interpretative language, whose use is meant to ensure the legitimacy of the decisions advanced, so must those who speak to Shari'a be careful to use that language that invokes legitimacy within that legal tradition.

And in this way very small and tentative steps are taken. "One more step in the direction of women's empowerment was made at a round-table discussion at Egypt's National Council for Human Rights (NCHR) on 23 April which urged that a panel be set up to "revise and rectify" reference books on Islamic jurisprudence to remove controversial literature which participants said fanned extremism, especially where women are concerned." Id. In this case there were two issues of concern, first the value of the testimony of women and second the rights of non-Muslim widows of Muslim men. The moving force behind these proposals was Zeinab Radwan, a well known authority on Islamic Jurisprudence. See Gamal Nkrumah, Zeinab Radwan: A Woman's World, Al Ahram Weekly, July 20-26, 2000. Ms. Radwan had "suggested that the testimony of just one woman be acknowledged in a business transaction. At present, two women are needed if they are to act as witnesses whereas one male witness will do. Radwan also advocated enabling non- Muslims to inherit Muslims and vice versa." In Her Favour, supra.

With respect to the issue of the testimony of women, Radwan sought to distinguish, and reduce the application of a key Qu'ranic passage on which is grounded the current disability of women's testimony. In a way reminiscent of American constitutional argument, "Radwan offered a different perception. "The text of the Quran is related to a specific situation in which women were illiterate at the time, and could also forget the details of the incident since what they were giving was verbal testimony, not written," Radwan, a professor of Islamic philosophy, told the round table." Id.

Interestingly, in accepting this view, some of the proponents conflated the traditional view with Islamic fundamentalism. In a sense, jurisprudence was grounded on politicalk assessment. "Ahmed El-Sayeh, a professor of Islamic philosophy at Al-Azhar University, strongly rebutted what he termed "the beliefs of some members of the centre which were inherited from extremist sects in pre-Islamic eras, underestimating the position of women." He stressed that Islam provides for full equality between men and women." Note the interesting way in which fundamentalist jurisprudence is sought to be discredited--by suggesting that those interpretations are not Islamic at all bit are somehow connected to the pagan practices of the pre-Islamic past. Thus stripped of their legitimacy, indeed stripped of their Islamic character, they are fair game. Even Western notions might provide more legitimate alternatives.

But there was great care to ensure that what was being discussed was error in understanding rather than a turn away from the holy word. "In her address, Radwan underlined the importance of correctly understanding the actual meanings of texts of the Quran and sayings of the Prophet Mohamed so as not to fall into error while implementing principles of Islamic Sharia. "The West criticises Islam because of incorrect practices that we claim as part of Islam. In reality, the error stems from our incorrect interpretation or implementation of principles of Islam," she added."

On the issue of the rights of non-Muslim widows of Muslim men, the Egyptian National Council for Human Rights compromised. They rejected the notion that non-Muslim widows could inherit, even if they lived in a Muslim household and reared Muslim children. However, they would be allowed something like charity. "Accordingly, after an extensive study of Radwan's suggestion, the IRC, while deciding not to allow non- Muslim wives to inherit Muslim husbands as there is no Quranic verse which stipulates such a situation, did agree on allocating a mandatory will to non-Muslim wives in order to enable them to lead an honourable life after their husband's death." Id.

But the National Council for Human Rights, of course, is not the last word on the matter. Shari'a, after all, is not a matter for consensus by committee, at least in the narrow sense. "Much of whether the new interpretation of women witnesses is accepted will depend on how the leaders of Al-Azhar and the Islamic Research Council (IRC) react. A majority of IRC members are backing Radwan." Id. The rationale is hardly flattering to women but effective all the same. "According to [Abdallah] El-Naggar, Islam accepted children's testimony as they have the ability to watch, observe and give information about a certain person or situation in order to preserve people's rights. "If Islam accepts children's testimony, then it would easily acknowledge that of a woman," argued El-Naggar." Id.

There are several insights worth considering bundled up in this reporting. These cut in a variety of directions. Together they continue to demonstrate both the power and flexibility of Islam as the basis of a system of jurisprudence complete in every way. But it also evidences the limits, sometimes severe of systems of political power grounded in religion and religious difference. To some extent, these efforts suggest affinity with the form of common law law making within a context the substance of which, and the manner in which substantive limits are fixed, are vastly different. For a useful discussion on related themes, see, Asifa Quraishi, Interpreting the Qur’an and the Constitution: Similarities in the Use of Text, Tradition, and Reason in Islamic and American Jurisprudence, 28 Cardozo L. Rev. 67, 70 (2006).

First, it appears that in places like Egypt, women and other groups might make better strides in attaining their political and human rights agendas by working through religious rather than secular law. While secular law and institutions remain a critical element, they play a secondary role. In this case, perhaps, the strength and weakness of secular are evident in the National Council for Human rights, which both provides a forum for otherwise marginalized segments of society, but at the same time can act only to give voice to issues requiring change.

Second, it appears that at least among some Islamic law may be more receptive to interpretation. However, the language and ambit of such interpretive flexibility is substantially narrower than under Western secular law (and likely closer to Western religious law in scope). Divinely inspired pronouncements cannot change, but they might be contextualized and reapplied properly. Additional pronouncements might be brought to bear, and certainly holes in jurisprudence may be filled. But this requires a constant working around existing unmovable jurisprudential objects. In some sense there is at least a faint smell of common law practice in this, though without equity or ecclesiastical realms as fail-safes and escape routes.

Third, in the context in which there is no way around Divine command, the Egyptians have found a powerful tool for discrediting practices they wish to abandon--characterizing them as pagan in origin. While this interpretive approach has definite limits, it provides a means for overcoming a reluctance to change by separating custom from Divine command, and further separating post from pre-Islamic custom. Again, an interesting variant on a common law judicial technique of distinguishing, narrowing and reconceptualizing prior cases and their context to provide space for changing interpretation.

Fourth, the process for change is complex and ambiguous. Religious law is not subject to the same system of transparency, institutionalization and accountability of positive law making in secular states. In religio-legal systems, like those of Islam and its progenitor, Judaism, the lines of authority are not fixed. Reputation and power are critical components in this system. But again, there is a scent of the old common law in this as well--the opinions of Justice Holmes, for example, might be viewed as more authoritative, and more worthy of study, than those of his less well reputed colleagues on the Supreme Court. But the process and effect of reputation is hard to gauge and harder to control.

Fifth, and most difficult for outsiders, is that such jurisprudential turns, no matter how progressive it appears, will continue to draw a line and maintain the subordination, of non-believers--as a matter of religious law. Shari'a reminds us that subordination comes in all sorts of flavors. A Christian or Jewish person, like a woman or a child, will not have the same standing as a Muslim man. They cannot. This is not a deficiency of Islam and Shari'a, but rather its great strength as a religious foundation of law. But in a society that adheres to principles of equality before law, this necessary subordination does not serve all citizens equally. As the West, like the Middle East, moves closer to religiously based political organization, while purporting to remain true to a principle of equality, and as the West pushes a "soft Islam" on places like Turkey and Iraq, this very real tension may come to dominate political discourse, and this consequence may come to reshape the political organization of society.

Sunday, April 20, 2008

The Irony of Press Freedom in Malaysia: Anwar Ibrahim Buys a Newspaper

In many places, press freedom is assured by strictly separating press ownership from the political elites. An independent press is said to provide that objectivity that ensures the presentation of a variety of views. When the press is controlled by the state--or by the principal political actors within a system of government--the information provided is said to be less useful to readers. Less informed readers are said to be less able to fully participate in a democratic state and exercise their power (to vote and participate) effectively. Of course, most states deviate from the press freedom ideal. In places like Cuba, the deviation is significant. But there the theory is that there is only freedom through control. Bad information is worse than no information. Appropriate information suitable for the perpetuation of the state and the state political system requires constant vigilance. In other places there are varying degrees of control relationships between elites and the press. In some places, press freedom is possible only when every stakeholder in the political process has access to its own press.

In this context it is interesting to note that "The Malaysian government plans to give opposition leader Anwar Ibrahim’s political party a permit to start its own newspaper as part of reforms to allow more press freedom, according to news reports yesterday." Malaysia to Give Leader Permit to Start Newspaper, Taipei Times, April 21, 2008, at 4. It seems that in Malaysia, other political parties have newspapers. These serve as th voice through which the views of these parties are filtered, amplified and leveraged. They report the news and promote the political agendas of its owners. This sort of press ownership could be troubling unless all political parties are permitted the same opportunity to sell their "news." And it is said, in Malaysia at least, to promote accountability in government--since the parties out of power may use their newspaper ownership to communicate their political agendas directly tot he people. “For me the bottom line is that we need press freedom in order for us to have a check and balance in government,” Id. (quoting Malaysian Home Minister Syed Hamid). Of course, that sort of thing could be dangerous in Malaysia, as Anwar Ibrahim well understands, especially when someone like Mahatir Mohamad is in power.

But there is a fly in the ointment. The Malaysian state still licenses newspapers. That means that only those papers willing to play by the government's rules can publish, or continue to publish. The local Tamil newspaper learned this the hard way.
"The announcement came days after the government suspended the license of a Tamil-language newspaper, which catered to some of Malaysia’s ethnic Indians, accusing it of fomenting racial tensions. The crackdown against the Makkal Osai, or People’s Voice, was slammed by critics as a blow to press freedom in the country. Syed Hamid, however, defended the move, saying the newspaper had breached the government’s media guidelines. Those guidelines include keeping silent on issues that can stir racial tensions in the country, a multiethnic nation comprising majority Malay Muslims and minority Chinese and Indians."
Id. As long as the state can control publication, it can determine the limits of acceptable political discourse in the state. That creates the danger of abuse. Something quite possible in states like Malaysia. But it is also not unreasonable--given Malaysia's volatile history of race and inter-ethnic relations. So the great irony in democratic systems. In some ways, press rights exercised by the great political stakeholders may, in the aggregate, provide a greater likelihood of accountability than systems, like that of the United States, where there is an ostensible separation between stakeholders and players. Yet this system can work only if either everyone reads all viewpoints (highly unlikely) or readers are moved to political dialog. Manipulation is still possible. But it is less subtle than under systems in which the press pretends that their reporters are a-political, or even worse, in systems in which the state controls the press and readers must read between the lines for an accurate view of the state of things. Malaysia reminds us that the theory of press freedom and its successful application may not work in tandem. Anwar Inbrahim and his political party will run their newspaper so they may participate more fully in the political life of Malaysia. But their newspaper cannot be understood as a neutral project. That is the bad news, The good is that people who read it will understand this and use it in filtering the news presented. The same informed reading is not possible in the United States where the press exerts a tremendous influence but hides its viewpoint, perhaps even from itself.

Saturday, April 19, 2008

Ecce Homo: Reflections on Benedict XVI's Careful Comments to the United Nations

In hope we were saved (spe salvi facti sumus) (Rom 8:24)). So Benedict XVI chose to begin an encyclical delivered on November 30, 2007. Benedict XVI, Encyclical, Spe Salvi, Nov. 30, 2007. I was reminded of a critical portion of that encyclical on the occasion of Benedict XVI's address to th United Nations. Benedict XVI, Address of Benedict XVI to the Members of the United Nations General Assembly, New York, NY, April 18, 2008. Benedict XVI made this point with emphasis:
Let us put it very simply: man needs God, otherwise he remains without hope. Given the developments of the modern age, the quotation from Saint Paul with which I began (Eph 2:12) proves to be thoroughly realistic and plainly true. There is no doubt, therefore, that a “Kingdom of God” accomplished without God—a kingdom therefore of man alone—inevitably ends up as the “perverse end” of all things as described by Kant: we have seen it, and we see it over and over again. Yet neither is there any doubt that God truly enters into human affairs only when, rather than being present merely in our thinking, he himself comes towards us and speaks to us. Reason therefore needs faith if it is to be completely itself: reason and faith need one another in order to fulfil their true nature and their mission.
Spe Salvi, supra, paragraph 23. Faith as the ordering construct of human relationships, through which reason is given effect (and is separated from unreason--the Luciferian abstraction of self love) in the context of the evangelizing mission of the Church, provides a framework through which Benedict XVI's comments to the General Assembly become easier to understand. The address to the magisterium of the political order was not just a message of faith but a formula for the interaction of church and state--faith and reason--in the ordering of the human community as state and religious communities. The clues to its bases are evident in Spe Salvi.
What this means is that every generation has the task of engaging anew in the arduous search for the right way to order human affairs; this task is never simply completed. Yet every generation must also make its own contribution to establishing convincing structures of freedom and of good, which can help the following generation as a guideline for the proper use of human freedom; hence, always within human limits, they provide a certain guarantee also for the future. In other words: good structures help, but of themselves they are not enough. Man can never be redeemed simply from outside.
Spe Salvi, supra, paragraph 25. Yet Benedict XVI's analysis is based (necessarily from the perspective of his own faith) in assumptions about the nature of the secular and the political, that provide an interesting point for interrogation, because, in his own way, Benedict arrives at an understanding of the relationship between the religious and the political that in some ways mirrors that coming out of Qom. See Larry Catá Backer, God(s) Over Constitution, 27 Mississippi College Law Review 11 (2008). For this reason alone, the address is worth parsing.

Benedict starts the address with a bit of historical connection and first principles. He suggests that his views are not individual but institutional, it is not the man but the magisterium speaking. "As Pope John Paul II expressed it in 1995, the Organization should be “a moral centre where all the nations of the world feel at home and develop a shared awareness of being, as it were, a ‘family of nations’” (Address to the General Assembly of the United Nations on the 50th Anniversary of its Foundation, New York, 5 October 1995, 14)." Address of Benedict XVI to the Members of the United Nations General Assembly, at paragraph 1. He noted that "The founding principles of the Organization – the desire for peace, the quest for justice, respect for the dignity of the person, humanitarian cooperation and assistance – express the just aspirations of the human spirit, and constitute the ideals which should underpin international relations. " Id.

But being a moral center does not mean, for Benedict, the same thing as being the source of morality--even political morality. "Through the United Nations, States have established universal objectives which, even if they do not coincide with the total common good of the human family, undoubtedly represent a fundamental part of that good. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 2.

Instead, Benedict suggests that the United Nations serves as a means through which a higher morality is served. This is especially so since all states are bound by this common and superior morality, which permits no unilateralism. These notions are expressed early in in the address and in a manner that gently rebukes the United states and other powers for pushing their own political morality unilaterally over the higher morality articulated in part by the United Nations to which they are bound.
The United Nations embodies the aspiration for a “greater degree of international ordering” (John Paul II, Sollicitudo Rei Socialis, 43), inspired and governed by the principle of subsidiarity, and therefore capable of responding to the demands of the human family through binding international rules and through structures capable of harmonizing the day-to-day unfolding of the lives of peoples. This is all the more necessary at a time when we experience the obvious paradox of a multilateral consensus that continues to be in crisis because it is still subordinated to the decisions of a few, whereas the world’s problems call for interventions in the form of collective action by the international community.
Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 2. The higher morals to which the United Nations aspires, and which it can only express in part, is meant to serve the human family. States, by necessity can only reach that family partially. All states together, guided by the binding power of higher morality, are obliged to act in concert for the benefit of the human family. Politics, thus, serves morality.
Since rights and the resulting duties follow naturally from human interaction, it is easy to forget that they are the fruit of a commonly held sense of justice built primarily upon solidarity among the members of society, and hence valid at all times and for all peoples. This intuition was expressed as early as the fifth century by Augustine of Hippo, one of the masters of our intellectual heritage. He taught that the saying: Do not do to others what you would not want done to you “cannot in any way vary according to the different understandings that have arisen in the world” (De Doctrina Christiana, III, 14).
Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 8. The only divisions that ought to matter, it seems, are religious. The gloss on this passage might be well provided from an interesting quarter--Benedict XVI's address to Catholic educators the day before the united Nation's speech:
"The Church’s mission, in fact, involves her in humanity’s struggle to arrive at truth. In articulating revealed truth she serves all members of society by purifying reason, ensuring that it remains open to the consideration of ultimate truths. Drawing upon divine wisdom, she sheds light on the foundation of human morality and ethics, and reminds all groups in society that it is not praxis that creates truth but truth that should serve as the basis of praxis. Far from undermining the tolerance of legitimate diversity, such a contribution illuminates the very truth which makes consensus attainable, and helps to keep public debate rational, honest and accountable.
Benedict XVI, Address to Catholic Educators, Washington, D.C., April 17, 2008. This mission ties faith reason and community within a tightly bound web. "Church’s primary mission of evangelization, in which educational institutions play a crucial role, is consonant with a nation’s fundamental aspiration to develop a society truly worthy of the human person’s dignity." Id. For Benedict the road is clear--it is not the practice of the community of nations that creates truth (for example the Universal Declaration of Human Rights as a consensus among states and their traditions), but universal truth that binds states to an appropriate practice. Thus, Benedict XVI reasons, "Truth means more than knowledge: knowing the truth leads us to discover the good. Truth speaks to the individual in his or her entirety, inviting us to respond with our whole being." Id. Truth and its understanding of the absolute relation between good, evil and action are bound up in "the vision of the Logos, God’s creative Reason, which in the Incarnation, is revealed as Goodness itself. Far from being just a communication of factual data – “informative” – the loving truth of the Gospel is creative and life-changing – “performative” (cf. Spe Salvi, 2). "" Id. Legitimacy, faith, morals and action--there is little room for the truths of the community of nations expressed merely in their actions--customary international law without morals is no law at all. In this sense, Benedict XVI strikes hard at the core of the construction of the global world order built from out of the ashes fo the Second World War and enshrined in the secular internationalism of the United Nations.

In this context, as well, law assumes its principal role as instrument of moral rather than as thing in itself. Speaking of the United Nation's Universal Declaration of Human Rights, Benedict XVI argues that "When presented purely in terms of legality, rights risk becoming weak propositions divorced from the ethical and rational dimension which is their foundation and their goal." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 8. Rule of law ought not to infuse law with the power of Logos. For Benedict the two are distinct, with law clearly subordinate and passive. "Human rights, then, must be respected as an expression of justice, and not merely because they are enforceable through the will of the legislators." Id. There is no place in Benedict's world construct for a higher customary law unless it be moral and universal and inspired by a faith tradition outside of the human group that seeks thus to legitimate its community. Americas are coming more to this view as they shed themselves of their original understanding of law as shared communal expression and move to a more imperial view of law as sourced in a superior body (the legislator). See Larry Catá Backer, Reifying Law: Understanding Law Beyond the State, 26(3) PENN STATE INTERNATIONAL LAW REVIEW – (forthcoming 2008).

As well ere there is more here than meets the eye. Again, Spe Salvi provides a useful gloss to the U.N. Address and supplies its necessary context in religion (in general) and Roman Catholic Christianity (in particular):
The atheism of the nineteenth and twentieth centuries is—in its origins and aims—a type of moralism: a protest against the injustices of the world and of world history. A world marked by so much injustice, innocent suffering, and cynicism of power cannot be the work of a good God. A God with responsibility for such a world would not be a just God, much less a good God. It is for the sake of morality that this God has to be contested. Since there is no God to create justice, it seems man himself is now called to establish justice. If in the face of this world's suffering, protest against God is understandable, the claim that humanity can and must do what no God actually does or is able to do is both presumptuous and intrinsically false. It is no accident that this idea has led to the greatest forms of cruelty and violations of justice; rather, it is grounded in the intrinsic falsity of the claim.
Spe Salvi, supra, paragraph 42.

Matters of morality, then, cannot be left to the expression of the political will of states, even expressed democratically. "Discernment, then, shows that entrusting exclusively to individual States, with their laws and institutions, the final responsibility to meet the aspirations of persons, communities and entire peoples, can sometimes have consequences that exclude the possibility of a social order respectful of the dignity and rights of the person. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 10.

Benedict thus rejects the basic notion of the sort of constitutionalism on which 18th and 19th century democratic states were founded--the idea that the people are the source of rights and duties and may bind themselves to those rights ands duties, however discerned. The unique genius of each people (demos) is uniquely expressed in the highest form of their self organization, their constitutions. Those constitutions may express that will in any number of ways, and are not lightly limited. These instruments certainly may not be limited by the institutional interference of outsiders or outsider ideas. And the moral impulse of such instruments must also accord with and reflect the will of the majority of those who choose to bind themselves thereto, whatever its source. In Employment Div. v. Smith, 494 U.S. 872 (1990) Justice Scalia reminded his audience of the very different basis of American constitutionalism:
"Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. . . . But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."
Id.. But not by Benedict XVI. Still, even Americans, for the most part, no longer believe that there is no higher law above the constitution in the sense, at least, that the American public might, for example, be able legitimately to amend the Constitution to permit slavery or to disenfranchise women. But from where do those norms derive. Before the 1990s, most Americans might have agreed with the post Second World War generation that those norms are inherent in (and bounded only by) consensus among legitimately constituted states. And, indeed, to some extent, the complex web of regional human rights instruments, and United Nations "hard" and "soft" law, reflect a global appetite for the construction of legitimating norms at the political level (from whatever sources derived). These notions provided the great impetus to American thinking behind what emerged as the great post war constitutions of Japan and Germany.

But Benedict has something else in mind. Speaking of the United Nation's Universal Declaration of Human Rights, Benedict suggests that the norms described therein "are based on the natural law inscribed on human hearts and present in different cultures and civilizations. Removing human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 6. And Spe Salvi yet again provides the gloss. "A world which has to create its own justice is a world without hope. No one and nothing can answer for centuries of suffering. No one and nothing can guarantee that the cynicism of power—whatever beguiling ideological mask it adopts—will cease to dominate the world." Spe Salvi, supra, paragraph 42.

And thus the place of religiously derived morals at the pinnacle of the construction of global political norms to which the laws of all states ought to be subject: "Refusal to recognize the contribution to society that is rooted in the religious dimension and in the quest for the Absolute – by its nature, expressing communion between persons – would effectively privilege an individualistic approach, and would fragment the unity of the person." Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 11. This idea--that the expression of the communal will and the search for the Absolute is bothy necessary and requires the intervention of religious communities (and principally their governance and interpretive institutions--their magisteria) in shaping the understanding of the normative dimensions of law, also requires a broadening of religious participation in internal politics. In a manner sounding much like American supporters of soft Islamic state constitutions in Iraq and Afghanistan (but presumably not in the United States) Benedict proposes that "The full guarantee of religious liberty cannot be limited to the free exercise of worship, but has to give due consideration to the public dimension of religion, and hence to the possibility of believers playing their part in building the social order." Id. Separation of Church and State is, for Benedict as false a construct as the separaton of faith from reason.

There is no hiden meaning here. Benedict XVI invites a consideration of Spe Salvi and its relation to the suggesitons he makes to the assembled ministers at the United Nations. "In my recent Encyclical, Spe Salvi, I indicated that “every generation has the task of engaging anew in the arduous search for the right way to order human affairs” (no. 25). . . . That is why the Church is happy to be associated with the activity of this distinguished Organization, charged with the responsibility of promoting peace and good will throughout the earth. " Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 14. Benedict would remind his audience of his view of evil--the construct6ion of interpretive norms beyond religion. "We have all witnessed the way in which progress, in the wrong hands, can become and has indeed become a terrifying progress in evil. If technical progress is not matched by corresponding progress in man's ethical formation, in man's inner growth (cf. Eph 3:16; 2 Cor 4:16), then it is not progress at all, but a threat for man and for the world." Spe Salvi, supra at 22. An outside hand is necessary--but that hand cannot be the community of nations, it must be the Divine order administered through the instruments of Divine will, institutionally constructed, with an oversight power on earth.

And so we come to the great contribution of this speech, at least for those interested in international relations--the subject considered by Benedict XVI for this august audience. It seems that political legitimacy requires an adherence to legitimate substantive norms, which may only be derived from those universal truths beyond the reach of individuals or even communities of the faithless. Only faith communities can legitimately provide those norms--a notion echoed elsewhere by the faith communities of Islam and institutionalized in constitutions from that vary in form from that of Saudi Arabia to that of Iran. See Larry Catá Backer, God(s) Over Constitution, 27 Mississippi College Law Review 11 (2008). But Benedict is suggesting something more than the control of morals within states. He suggests, as a matter of international relations, that institutionalized religion ought to serve as autonomous participants along with states in the construction of those universal norms that might legitimately bind states in their external as well as internal relations.
In a manner that is consistent with her contribution in the ethical and moral sphere and the free activity of her faithful, the Church also works for the realization of these goals through the international activity of the Holy See. Indeed, the Holy See has always had a place at the assemblies of the Nations, thereby manifesting its specific character as a subject in the international domain. As the United Nations recently confirmed, the Holy See thereby makes its contribution according to the dispositions of international law, helps to define that law, and makes appeal to it.
Address of Benedict XVI to the Members of the United Nations General Assembly, supra Paragraph 12. According to this wisdom, it is time now for institutionalized religion to meet its obligations within the political sphere--and not just the Holy See. Faith communities--Jewish, Muslim, Buddhist, Non-Catholic Christian and the like must also take their place as subjects of international law and participants therein. In the absence of that ecumenism, the Logos might be distorted through the error of individuals who do not represent the totality of faith on Earth. Benedict believes that "Discernment, that is, the capacity to distinguish good from evil, becomes even more essential in the context of demands that concern the very lives and conduct of persons, communities and peoples." Id., at paragraph 8. For that purpose "a vision of life firmly anchored in the religious dimension can help to achieve this, since recognition of the transcendent value of every man and woman favours conversion of heart, which then leads to a commitment to resist violence, terrorism and war, and to promote justice and peace. " Id., at paragraph 9. For this purpose

Benedict XVI, of course, does not mean to lobby vigorously on behalf of other faith communities--he is charged with the triumph of his own. But his ideas--as Logos--might necessarily proceed beyond the mouth of the man who utters them. Yet he does wind up suggesting a place for formally constituted faith communities at the political table--as subjects of international law. Before dismissing these ideas as unusual--consider how much closer the world order is becoming to legitimating autonomous religious participation in political norm construction after 2001 than it was before then. It is not for nothing that the greatest source of political vigor in this century has sought power in its connection with something outside of the community it seeks to bind. From Chinese scientific determinism to Catholic Logos, to Islamic Shar'ia, to Jewish law. All may someday share a place at the political table as critical actors in the construction of substantive higher law, and all may invoke the protection of the communities of the faithful in the preservation of their communities and the territories served by them.

Religious communities might then be joined by economic enterprises as subjects of international law as well. Many who might dismiss the place of religious communities have been seeking to treat other non state communities, principally multinational corporations, as subjects of international law for years. See Larry Catá Backer, Multinational Corporations as Objects and Sources of Transnational Regulation, Law at the End of the Day, March 29, 2008. It is hard to distinguish one from the other. And Benedict XVI makes as strong a case for the binding of communities of faith within the political order as he makes for the binding of the political order within the normative orders of faith communities. For faith communities "in the world" may not so readily seek to escape its rules when the global magisterium speaks within the ambit of its own authority. The possibilities this opens are interesting indeed.

Thursday, April 17, 2008

¡Qué difícil es ser breve en la batalla de ideas!

Castro is worried. The pace of Sinification might be accelerating. People are talking--that is, people that count are talking. That is people who are read by the Cuban elite are talking. And what they appear to be talking about are those fundamental changes to the character of the Cuban revolution that, while it may not satisfy the right wing of the Miami Cuban community, will drive the Stalinist wing of the Cuban establishment mad. But rather than tackle Sinification directly, Castro is moved to protect the purity of his ideas applied during the special period. And so, in a brief address, Fidel Castro attempts a gentle tongue lashing in the form of an essay--Fidel Castro Ruz, Relexiones del compañero Fidel, No hacer concesiones a la ideologia enemiga, April 15, 2008 ("Decidí escribir esta reflexión después de escuchar un comentario público divulgado por un medio masivo de la Revolución, que no voy a mencionar concretamente.").

Castro reminds his readers that the so-called special period in Cuba, that period of several years in the aftermath of the disappearance of the Soviet Union, was neither special, nor evidence fo the possibilities of Cuban communism. It was also temporary. "El período especial fue consecuencia inevitable de la desaparición de la URSS, que perdió la batalla ideológica y nos condujo a una etapa de resistencia heroica de la cual no hemos salido completamente todavía." ("The special period was an inevitable consequence of the disappearance of the USSR, which had lost the ideological battle and moved us to a heroic stage in our resistance from which we have not yet completed.").

For those who look to the special period as a template for a new Cuba upon the death of Castro, he suggests one ought to look elsewhere. And he is right, of course. The special period was temporary--a seats of the pants response out of panic and a sense of desperation at a time when it looked likely that Cuba would fall back into the American orbit. But it was a Stalinist enterprise--bureaucratic, inefficient, prone to exaggerate class distinctions and corruption. It served the nation badly. This form of engagement would suit the Americans well--requiring substantial intervention to save Cuba from the sad consequences of that experiment. Castro argues that the greater evil has been the dominion of the Americans and the products of their rule of the planet, for they and the system of ideas they represent, are responsible for a large list of global defects listed in the essay.

Castro makes his point--and preserves his legacy. He wants to ensure that his memory is preserved exactly as he sees it, and he appears to have the luxury now to protect his ideas--and their exposition. ¡Qué difícil es ser breve en la batalla de ideas! Castro exclaims. Fidel Castro Ruz, Relexiones del compañero Fidel, No hacer concesiones a la ideologia enemiga, But there may be irony here. In place of the deviations of the special period, Castro now confronts the reality of Sinification. And against Raul and FAR, he will be far more circumspect. See Fidel Castro Ruz, Reflexiones del compañero Fidel, La victoria china (parte 1), March 30, 2008, and parte 2, .

Thursday, April 10, 2008

Fidel Castro's Turn?

Fidel Castro's last column, appearing online in what is the closest thing to a blog since his illness, Reflections of the Commander in Chief, last appeared on February 22, 2008. See Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump?, Feb. 22, 2008 (in the original Spanish). The last contribution is worth a review, and, perhaps more importantly, the silence that follows is increasingly noteworthy.

Castro is well known for a kind of cagey reminiscence. He will delve deeply into an old memory, but usually to make or emphasize a point he is seeking to underline. Sometimes these forays into the past are meant to "reorient" history, or to explain or exculpate past actions. Castro has always been extremely meticulous with th care and maintenance of the legacy of his ideas--something he values as much as he values the state and his role in it.

With this last column, Castro focuses on old wounds and old enemies. He starts with a reminder of Cuba's pariah status within the Organization of American States system.
Yesterday, the Secretary General of the Organization of American States (OAS), Jose Miguel Insulza, dismissed the possibility of immediately re-admitting Cuba into this multilateral organization because there is no consensus on the matter among its members, among other reasons. In this connection, Insulza remarked that, for full re-admission into the OAS, one of the requisites Cuba would have to meet is adhering to the norms of the organization, including the Inter-American Democratic Charter and the Convention on Human Rights.
Id. For all the bluster, though, it is clear that Cuba's sad relationship with the OAS still stings, and stings badly. And, of course, there is irony here tinged with anger. No other state has been the object of similar treatment within the OAS family--no matter how dysfunctional or wicked it government. Still, it is not for Fidel Castro, or for the current American administration, to mend that wound.

The OAS memory sparked another and more important one for Castro--Cuba's long connection with the Saladrigas family, first in the Cuban homeland and now from the Cuban beach head in Florida. The memory was sparked after reading an article in El Pais by Antonio Caño. Antonio Caño, "El aislamiento de la isla sólo sirve para perpetuar la agonía del régimen" El Pais, February 21, 2008. The article is quoted extensively. Its principal message was articulated through an interview with Carlos Saladrigas, described in that article as "One of the most respected voices among Cuban exiles" ("Una de las voces más autorizadas del exilio cubano"). Caño, supra. It suggested that there might be a relaxation of the traditional antics between the United States and Cuba now that Fidel Castro was exiting the scene. But what Saladrigras says is perhaps less important than who he is and how much he has spent on his project.
Saladrigas, que preside una pequeña organización llamada Grupo de Estudios Cubanos, integrada en un colectivo de otras asociaciones políticas y de derechos humanos conocido como Consenso Cubano, ha gastado en los últimos años millones de su fortuna particular para poner en marcha un embrión de alternativa moderada y centrista a los viejos dirigentes radicales que dominaban la comunidad cubana en EE UU. En el páramo de liderazgo en que quedó Miami tras la muerte de Jorge Mas Canosa, Saladrigas es una voz respetada entre los círculos intelectuales, y escuchada por los medios de comunicación y los diplomáticos extranjeros.

Caño, supra. (Translated in Castro's quotation as: “Saladrigas, who is President of a small organization known as the Cuba Study Group, which is composed by other political associations and human rights organizations known as Consenso Cubano, has spent millions of his private funds in the last few years in order to plant the seeds for a modern and centrist alternative to the radical leadership that used to dominate the Cuban exile community in the U.S. In the leadership vacuum in which Miami found itself after the death of Jorge Mas Canosa, Saladrigas is a respected voice in intellectual circles and listened by the media and foreign diplomats.” Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump?

And more still, perhaps, is what additional funds are intended to acquire:
"Hay que conseguir", añade Saladrigas, "que el régimen le pierda el miedo al exilio; cuanto menos miedo tenga, más rápido va a ir todo". El cambio, en su opinión, es imparable, pero puede tardar más y ser más doloroso si no se consigue la reconciliación entre los cubanos de la isla y los del exterior. En Florida vive un millón de cubanos con recursos suficientes como para revitalizar la maquinaria económica de la isla en muy poco tiempo si se dan las condiciones adecuadas, que deben de ser creadas tanto por EE UU como por Cuba. El primero, levantando las restricciones a los ciudadanos norteamericanos para invertir en la isla, y el segundo, legalizando la propiedad privada y la actividad económica extranjera.

Caño, supra. (translated in Castro's quotation as "It is important”, says Saladrigas, “that the regimen loose its fear of the exile community, because the lesser the fear, the faster things will move along”. Change, in his opinion, is unstoppable (…)” “There are a million Cubans in Florida with sufficient resources to revitalize the economy of the Island in very little time, given adequate conditions, which must be created both by the U.S. and in Cuba: by the U.S. lifting restrictions to U.S. citizens wishing to invest in Cuba, and by Cuba, legalizing private property and foreign economic activity.” Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump?

For Castro, this springs the trap--connecting past and present, old and new enemies, and pointing to the character of future threats to the Revolutionary government.
The name Carlos Saladrigas rings a bell; it is a name I heard many times when, at 18 years old I was concluding my fifth and last year of high school. He was the candidate Batista had chosen at the close of the last year of his constitutional term. Before, he had been his Prime Minister. The Second World War was coming to an end. The new Carlos Saladrigas now wants to buy us for peanuts! With the money in Miami, “the biggest support fund that any political transition has ever known throughout history.” This is something the United States has never achieved, not even with all of the money in the world.
Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump? Castro then devotes the remainder of the work to a quotation from the work of another American, David Brooks, for the proposition that neither the Americans, nor the new Cuban Americans will be any position to interfere with Cuban affairs, except as spectators. To get there, of course, he spins David Brooks, EU, relegado a simple espectador de la transición en Cuba, La Jornanda (Mex.), Feb. 21, 2008, in a way that might not have been intended by its author, but then, the implications read into the work by Castro are fair. ("Al parecer, la transición en Cuba podría provocar una transición dentro de Estados Unidos. Pero tal vez Washington (y Miami) son más renuentes al cambio que La Habana." David Brooks, supra; translated in Castro's quote as “Apparently, the transition in Cuba could cause a transition within the United States, according to the article. But perhaps Washington and Miami are more opposed to change than Havana.” Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump?).

This is a special, and very subtle, work. At one level it works the obvious--his enmity towards the OAS, his reminder of old enemies, and his anger/amusement at the antics of his favorite playmate, the United States and its allies. But that is hardly the message that counts. I suspect that there is fear here, and a message for his successors. He reminds Raul and the FAR establishment, that the children of old enemies continue to play as important a role as their fore bearers did. The reference to Saladrigas was deliberate, the reminder of the connection of that family to Batista (however attenuated), the dominance of that family in the Caribbean and the transformation of the Miami Cuban-American community into the coming generation of "ugly Americans" that seek to buy Cuba the way their predecessors bought Batista. The reference to the OAS a reminder of Cuba's pariah status and the costs to Cuba of rejoining at this juncture--the loss of its independence. Though it may be a price that Cuba will ultimately have to pay as it seeks re-engagement, it is a reminder that in the modern world system, globalization will require the loss of a measure of sovereignty that Cubans fought for so long to achieve, and that they achieved--reluctantly, only on the evaporation of their last imperial patron, the Soviet Union (the last a reality that Castro has studiously avoided since the early 1990s).

These suggestions are ironic and important. For all their bluster, it is likely that the exile community in Miami--or rather the exile community through its instrumentalities and agents elsewhere in Latin America--have already begun the process of "purchasing" Cuba, as Fidel suggests. The exile community would not be acting rationally if it did not have plans already well in place for a substantial re-engagement with the homeland. And they would be engaging in these activities with the connivance of the current regime. Yet it is the form of the engagement rather than its existence that matters. Cuba has enough expertise to work through this relationship the way that the Chinese work with the Taiwanese. There is a way for economic and social relationships without substantially threatening the power of the current regime. The Chinese have been showing the Cubans the way. Castro, from his hospital bed, is the most reluctant actor to see its potential--and inevitability. Lots of bluster for the local masses (in Miami and Cuba) and lots of dealings in Caracas, Mexico City, the Dominican Republic, Panama, etc.

But the most important part of this essay might well be the last line: "As the readers will appreciate, I have done some work as I await the historical decision of the 24th. Now, I will go several days without putting pen to paper." Fidel Castro Ruz, Reflections By Comrade Fidel Who Wants To Be In The Garbage Dump?) (in the original: Como pueden apreciar los lectores, he trabajado poco mientras espero la decisión trascendente del 24. Ahora sí estaré varios días sin usar la pluma."). It seems that Castro was to undergo treatment. The extensive quotes and lack of rhetorical fill suggest a hurried approach to this essay, and an uncharacteristic concentration of prose. Since that time, at least through the date of this essay, Castro's columns have returned but in a more modest form in Granma, the official organ of the Cuban Communist Party. The essays, now known as Reflections of Comrade Fidel, are distinguished from the Reflections of the Commander in Chief, to reflect Castro's current status as pater patrias without portfolio. One wonders whether Castro will be back in bigger form. The apotheosis is complete. Castro has become an idea.

Saturday, April 05, 2008

"Fitna" and the Muslim Mind in Egypt, A Remembrance of Things Past

As one might expect nowadays, the reaction within the dar al Islam to the distribution of that questionable little film, "Fitna" was hysterical. In the West there was fear. The official site of the film http://fitnathemovie.com was blocked by Network solutions, the site host, who posted this notice: "This site has been suspended while Network Solutions is investigating whether the site's content is in violation of the Network Solutions Acceptable Use Policy. Network Solutions has received a number of complaints regarding this site that are under investigation. For more information about Network Solutions Acceptable Use Policy visit the following URL: http://www.networksolutions.com/legal/aup.jsp." Id. In addition, "Fitna has been condemned by the Dutch government and Dutch broadcasters have avoided showing it. UN Secretary General Ban Ki-moon has called it "offensively anti-Islamic"." Dutch MP's Film Angers Indonesia, BBC News Online, March 31, 2008.

There were protests in the dar al Islam.
"Following the release of Geert Wilders' film Fitna, a group of 53 Jordanian MPs have delivered a petition to their government in Amman, demanding that it break all diplomatic ties with the Netherlands. They also want the Dutch ambassador expelled from the country. The Jordanian parliament consists of 110 members, 60 of whom were present when the petition was delivered."

Fitna Continues to Draw Protests Across the Muslim World, Expatica.com, March 31, 2008 (drawing from a report in Radio Netherlands 2008). Though there was a bit of bathos to the protests, or just boredom. A Los Angeles Times blog post from Tehran noted that "the demonstration showed mostly apathy. Only about 40 students, 25 guys and 15 women, showed up for the outing. They brought a couple of loudspeakers and called for the sacking of Wilders, who has likened the Koran to Hitler's "Mein Kampf." They chanted against America and Israel, but also denounced liberal Iranian political factions as traitors." Ramin Mostaghim, IRAN: Protest Against Dutch Film 'Fitna' Draws Tepid Crowd , Babylon and Beyond, Los Angeles Times, April 5, 2008.

Beyond that hysteria, Gamal Kkrumah provides a very interesting commentary in Al-Ahram Weekly. Gamal Nkrumah, Blasted Backlash, Al-Ahram Weekly, 2-9 April, 2008. "Fitna (Sedition), a recently-released 17- minute film made by the far-right Dutch MP Geert Wilders, is the latest production to incense sentiment across the Muslim world, Egypt included." He notes the usual tenor of protest from virtually all levels of society in Egypt. "The hitherto heated dispute is fast acquiring a sharper edge, and reactions in Egypt and other Muslim countries to the screening of Fitna have been nothing short of frenzied." Id..

And then he does something different. He provides a memory of the possibility of a different reaction in an equally Islamic Egypt.

"Freedom of expression and secularism were once the hallmark of our own cultural heritage," Samir Farid, one of Egypt's leading film critics, told Al-Ahram Weekly. "In 1935 an Egyptian writer, Ismail Adham, published a book entitled Why I am an Apostate. Nobody called for his trial, let alone his death. Nobody called him an infidel. That was freedom of expression,"

Farid laments the way in which, over recent decades, Muslim societies have become prey to the dictates of self-styled religious authorities who are seeking power. "When Westerners watch televised interviews with Osama bin Laden and Ayman El-Zawahri in which they celebrate the attacks of 11 September it should come as no surprise that some of them will go on to produce films, plays and books depicting Islam as a religion that glorifies violence," says Farid.

Id. Though Farid recalls other insults to Islam, he also recalls a different form of reaction to them, even in Egypt.

Farid draws a comparison once again with the far more relaxed climate of the early and middle part of the 20th century. "In 1926, the celebrated Egyptian actor Youssef Wahbi announced that he intended to portray the life and times of the Prophet Mohamed. The issue was debated in the press but no one dared to threaten Wahbi. Yet such an announcement would be unthinkable today. Times have changed, and no actor now has the courage to challenge conventional Islamist wisdom."
Id. Nhrumah thus nicely, though subtly, reminds his audience of several things: the reality of violent protests today, the closing of minds in both the dar al-Islam and Christendom (if I might be excused the anachronism, so well suited to the story). And indeed, it is easy, in the protests and Western self righteousness over Fitna, to forget the not so long ago protests in Christendom over "The Last Temptation of Christ." And indeed, at least one state, Chile had sought to repress the film entirely, prompting an opinion of the Inter-American Court. See Human Rights Watch, Limits of Tolerance (1998) at 137-138. Another film, a comedy, Monty Python's Life of Brian (which was banned in Ireland and Norway, and advertised in Sweden as "the movie that is so funny it was banned in Norway"), or so Wikepedia relates. Yet there was a difference I suppose.

The Last Temptation of Christ and the Life of Brian might be viewed as an internal matter. But should that maker a difference? Nkrumah suggests it may not:
"As Muslims, we have a duty to respond to attacks on Islam launched in the name of freedom of expression. Artistic expressions such as Fitna necessitate rejoinders from intellectuals who are true believers," Gamal Qutb, Islamic scholar, told the Weekly.

"The film is an unwarranted affront to Prophet Mohamed and Islam. We have an inalienable right to defend the values of Islam and monotheistic religions. Westerners may have forsaken religion but we in the East uphold its sanctity and the respectability of the prophets of old, not just the Prophet Mohamed, but of Jesus, Moses and other prophets."

Gamal Nkrumah, Blasted Backlash, Al-Ahram Weekly. That is certainly a view shared among the religious. The problem, as Benedict XVI has often explained, echoing the sentiments of other Christian traditions, is not so much with other religions as it is with the secular (the more successful competitor) that the battle for legitimacy and conrol of behavioral norms lies. It is to that competition that all religion ought to turn (at least before one gets back to the traditional contests among religion). ""There is a schism over freedom of speech. There is the question of the politics of morality, or the lack of it," is how Farid sums up the situation." Id. Nkrumah also suggests that there is more than one way to approach this discussion, even in the dar al-Islam. The politicization of religion has all sorts of regrettable consequences. The stakes are high. But even "Fitna" can cause a certain remembrance of things past--wispy, quickly receding, as those who lived it pass. Marcel Proust, Remembrance of Things Past: Swann's Way (1913 original publication) (Charles K. Scott-Montcrieff, trans., New York: Henry Holt & Co., 1922). A failure of memory of things past and traditions of tolerance may be the greatest victim of religious visions rooted in history.