Thursday, July 31, 2008

Merlin's Prophesy: Egypt's Copts

Merlin's Prophesy

The harvest shall flourish in wintry weather
When two virginities meet together:

The King & the Priest must be tied in a tether
Before two virgins can meet together.
William Blake, "Merlin's Prophesy," from Poems from the Rosetti MS, in William Blake, The Works of William Blake: Selected Poetry and Prose 61 (Roslyn, New York: Black's Readers Service Company 1953).

Thus a description both of the impossible and of that aim to which institutional energy is necessarily bent, which the individual ought necessarily to restrain but cannot. Virginity is possible by an internalization of that Word through priest and king, and consciousness of virginity unmakes a meeting together of virgins. Only a rope confining king and priest, like horses, to a confined space, a space appropriate to them, permits a meeting now impossible. Space, choice, confinement, hierarchy, individual, apparatus all deployed to ensure a harvest in summery weather''and death in winter.

Wednesday, July 30, 2008

On the Convergence of State and Corporation in a Post Stalinist Russia: The Russian State Corporation

My colleague William E. Butler has produced an excellent short examination of what he describes as a "remarkable step taken by the Russian Federation of endowing an individual state corporation with various powers in treaty making, including the right to conclude treaties with foreign states or their departments." William E. Butler, Current Developments: Treaty Capacity and the Russian State Corporation, 102(2) American Journal of International Law 310 (2008). The context is not necessarily a happy one for the ordered world that preceded this sort of activity--where public entities acted like states, and private entities inhabited their own world, and both were disabled from entering into the territory of the other both by notions of seemliness and by the apparently natural and eternal ordering of the law into neat little categories. And indeed, Professor Butler sets the tone early, taking note of a nice (and tone setting) passage from Vaughn Lowe's recent work of comfort for traditionalists, decrying the "tendency at present for international lawyers to write of the growth of [non governmental organizations] and other non-State actors, and of the decline of the nation-State, with the gleeful enthusiasm of a cartoon character sawing off the tree branch on which he is sitting". A.V. Lowe, International Law 290 (Oxford: Oxford University Press, 2007) quoted in Butler, supra, at 310. Mercifully, not all of us are constrained by a need to honor traditional boundaries of international law or burdened with a mission to preserve those boundaries in the face of a shifting reality in which states increasingly seek to participate in markets as private juridical persons and private economic enterprises are increasingly disposed (and permitted) to exercise those powers once reserved to the holders of territorial sovereignty.

Well, what does a more gleefully enthusiastic reading of Professor Butler's excellent dissection of this new juridical animal reveal? Or, perhaps better put, what is this thing that is proving so annoying if only by reason of its deliberate character of legal mongrel? Professor Butler provides an superb analysis of the creature that the Russian state apparatus intends as neither fish nor fowl. Perhaps it will turn out to be more state than participatory market entity.

Professor Bulter looks at the State Atomic Energy Corporation (Rosatom"), established by Russian federal law on December 1, 2007. Id. at 310. It is a unique creature of Russian law with no exact counterpart in imperial or Soviet law, with origins in a Russian law of 1999 making possible the creation of non-commercial state corporations. Id., 310-311. The mongrel nature of the state corporation is succinctly described by Professor Butler (Id., at 311): its functioning is defined as noncommercial (though whether this characterization would survive analysis under American application of its Foreign Sovereign Immunities jurisprudence would remain to be seen, see Larry Catá Backer, Markets in Infants: The Hague Convention on Intercountry Adoptions, National Reform Efforts in Guatemala and Consumerism in the United States, Law at the End of the Day, December 11, 2007). It is a wholly owned entity of the state, but controls a number of economic and non-economic entities, over which it presumably has control as a shareholder. The management of the enterprise is mongrelized as well--"The management organs are a hybrid of the state unitary enterprise under Russian law and the Russian joint stock company--but without a shareholder meeting." Id. While Professor Butler fears that such an organization presents problems of tracing authority for acts, corporate lawyers might finds the system, like many other exotic systems created by the flexible provisions of many corporate regimes with respect to management (especially of wholly owned concerns), hardly daunting. Moreover, to the extent that the organizational structure makes one unsure, the result might well be to raise the costs of transactions --or shift them down to the operating company level, or to the shareholder (the Russian State) when the stakes are great enough and the Russians willing enough. otherwise, business people will take the sorts of risks that they have taken with odd and perhaps disreputable governments for a long period of human history. Still, Professor Butler is right to warn non-Russian corporate specialists to beware of the challenges posed by the formal governance structures of these entities.

But for all that, Rosatom is especially interesting in one respect. Of the seven such state corporations created, apparently only Rosatom is endowed with treaty making capacity. Id., 311. Professor Butler reproduces Article 14 of the federal law on Rosatom which suggests the public nature of this state "corporation." Id. Professor Butler offers a rationale for the mongrelization--a bad effort at multi-tasking by a Russian state appearing efficient but evidencing otherwise.
Atomic energy and nuclear power are among the most sensitive issues on the planet. Rosatom was created to bridge the chasm between classical state concerns about safety, national security, non-proliferation obligations [though in Russia's case that might be more laughable than real] and the like. on the one hand, and perceptive exploitation of commercial opportunities represented by atomic and nuclear capacity, on the other. . . . Seen another way, Rosatom is the tangible result of a massive reorganization ands restructuring of thew atomic energy and nuclear power branch of the Russian economy.
Id., 311-312. And the attempt at reorganization was meant to conform to market expectations of structure and form. "Given the decision to clothe the restructuring in corporate dress, it could hardly fail to give rise to implications for the law of treaties generally, and the Russian Federation's treaty obligations with respect to this subject matter specifically." Id., 312. True enough from the perspective of the international lawyer--but more importantly the effort to clothe regulation and participation under the umbrella of a non commercial corporation also presents interesting problems of corporate law, especially in the legal consequences of the relationship between the ultimate shareholder (the Russian Federation), the management obligations of the state corporation (however defined), and the operations of the commercial and non-commercial subsidiaries. Of course, to the extent that these operating subsidiaries are confined to Russian territory the Russian Federation can create such garbling as suits them. But to the extent the assets of such concerns can be reached by foreign courts, and to the extent that subsidiary entities are established elsewhere (or operate through local entities elsewhere), then the consequences of the peculiarities of Russian corporate organization will not be entirely under the control of the Russians. At a minimum, the opportunities for veil piercing--and reaching the commercial assets of the Russian federation abroad, might provide a tempting enough insurance policy of sorts for foreigners seeking to do business with Rosatom or its subsidiaries.

More importantly, perhaps, Rosatom is one of a species of concerns that appear to be appealing in post-Marxist regimes seeking the benefits of global economic engagement on Western free market terms without actually giving up all of the control once wielded by central planners and now devolved to the creatures of the state apparatus in more subtle ways. For a discussion, see, Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism. Transnational Law & Contemporary Problems, Vol. 14, No. 1, 2005.

For all this interesting material, Professor Butler reserves the bulk of his analysis to ten carefully reasoned consequences of the Rosatom law for Russian law and for application of the law of treaties (a heretofore public law concern) when exercised from out of the peculiar creation of this non commercial corporate enterprise with power to control commercial enterprises and more importantly to assert state treaty making powers. Id., 312-315. These consist of:

1. Russian law was changed to provide essentially, that (private) contracts by state corporations like Rosatom would be deemed to be (public) law treaties. This, in effect, makes sense if one considers that treaties, in the 20th century, were the,selves transformed from public contracts between states to some sort of "higher" law binding on states. The regulatory character of treaties is mirrored by the public character of certain contracts to be entered into by enterprises owned by the state (or really by anyone vested lawfully by the state with such power) reflected in the creation of Rosatom. International lawyers, therefore, might be reaping a whirlwind of their own creation--the way the German Imperial Government reaped the rewards of sending Lenin back to Russia.

2. Rosatom is an "empowered organization." Such organizations are granted treaty making power. But the definition of "empowered organization" is "opaque." Id., at 312. Professor Butler is right to suggest the problems of interpretation but then also suggests that other provisions make a broad interpretation of Article 14(2) reasonable. He also notes that for internal purposes, the sort of treaties which Rosatom may conclude are not defined in the 1969 Vienna Convention. That is true enough--though from the perspective of foreign states seeking enforcement of treaty obligations it may not matter much, except, as Professor Bulter points out, to the effect the categorization may affect the place of such treaties within the hierarchy of Russian law. Id., 313.

3. Rosatom is required to consult with constituent entities of the Russian Federation when treaties under consideration touch on matters within their respective competences.

4. Rosatam's treaties bind the Russian Federation, though the extent and nature of that binding are still to be worked out.

5. Under certain circumstances, empowered organizations like Rosatom may make proposals for the conclusion of a treaty by others and with the permission of the Ministry of Foreign Affairs, may speak with foreign counterparts about such treaties. Id. 314.

6. There are some interesting issues of authority to conclude treaties within the governance structure of these state corporations. Professor Butler suggests that the director general s empowered to decide to execute treaties, but not other officers without appropriate grants of power.

7. Proposals to ratify treaties may be submitted jointly with the Ministry of Foreign Affairs, "although the Ministry may act independently in this respect." Id., 314.

8. State corporations with treaty powers may keep the original of executed treaties in their own archives, with copies to the Foreign Ministry.

9. The state corporation is empowered to publish treaties it concludes--permitting effectively such entities to keep a version of an official gazette. "Since Russian courts are zealous in confirming that a treaty has been officially published and has entered into force as a condition of enforcing any of its provisions, the foreign party dealing with Rosatom has a special interest in ensuring that agreements with it are duly published." Id., at 314-315. That is true enough--if such agreements are treaties,. But contracts? An interesting conflation of contract as treaty and treaty as contract in relation to the dealing of such state juridical personalities. Though, again, it might make sense that treaties (public regulatory) actions are conducted with Rosatom and that contracts are concluded with the operating subsidiaries.

10. The last is the most interesting for me. Entities like Rosatom are empowered "to watch over and monitor the performance of treaty obligations by themselves and by the other party or parties, to report any breaches, and to be involved in developing proposals for a response to violations." Id., 315. In the world that Professor Butler describes, where the differences between contract and treaty is fungible to some extent, and the the state entity empowered to act actually operates through a number of other organizations, the possibilities of delegation and diffusion of this monitoring power are vast. And, as I have suggested else, the regulatory effect of the power to monitor can be greater than and more effective than traditional positive legislation. See Larry Catá Backer, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2007.

Professor Butler has done us a great service in highlighting an interesting wrinkle in the use of the corporate form for mixed purposes--private (participation in the market through ownership or control of economic entities) and public (through the regulatory and treaty making powers with which the central entity is vested). He has focused the reader on the issues of internal Russian law such a newfangled mongrelized juridical form presents--as well its implications for the law of treaties--as an internal matter of Russian law (how does it fit into the Russian legal structure) and its potential external effects (what are foreigners to make of all of this). For that reason alone, this commentary was worth a careful read.

But it also suggests a number of lacunae in the nature of corporate law--and its consequences for the convergence of public and private law--that might bear some further study. Whatever the convolutions of Russian law, and the fecundity of the Russian legal imagination, it appears that the Russian state corporation may be viewed as both public and private from outside Russia. In some ways, the Russian state corporation resembles attempts by European states to control recently privatized national industries. In the recent golden share cases, the European Court of Justice has applied its treaty principles of free movement of capital to determine that such constructs--whether created as legislative or private corporate arrangements--retain their public character. As such, both entity and arrangement will be treated as bound by the treaty obligations of the controlling Member State. The Advocates Generals would go further--and treat all such arrangements as essentially public, unless the Member State could effectively show no discriminatory effect (where it controls both regulation and participates in the economic arrangement) or where the State could meet a fairly strict "reasonable private investor" standard (where the state provides money for the purchase of debt or equity). The analysis is essentially functionalist. See Larry Catá Backer, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law. Tulane Law Review, Vol. 82, No. 1, 2008 pp. 1801-1868. On the other hand, like the Russians, the Americans have tended to apply a more formalist analysis to such entities (id.)--except in matters of the application of its sovereign immunities law. See Larry Catá Backer,Permanent Mission of India to the U.N. v. City of New York: The State as Private Actor in a World of Private Actors Law at the End of the Day, June 30, 2007.

Thus, the more interesting question might well be how Europeans and Americans might apply their law to the activities of Russian state corporations and their subsidiaries or controlled entities for activities outside of Russia. In this case one is met with a department of the state apparatus , organized in corporate form, to which have been devolved certain traditional state powers--including a limited right to conclude treaties. The fact that the state chose to organize its power in this way, by reconstituting itself in part as a conglomerate, with a number of subordinate juridical persons, ought not affect the character of the state apparatus itself. As the Europeans might suggest from their golden share cases, the public character of the enterprise is not lost merely because of the organizational choice made by the state. That the state corporation is organized as a non-commercial entity suggests a predominance of its regulatory (public) rather than its market participatory (private) character. That, to the extent it remains interesting, is so as a matter of domestic law. Yet this department of the Russian State appears also to manage state enterprises. Where these are operated directly, then the state organization becomes a contradiction in terms--a non-commercial entity operating commercial enterprises. To that extent, the entity might be considered both subject to the limitations of private law (with respect to its commercial activities) as well as public law (to the extent that such law restrains the power of governmental entities). That might well be the consequence under European legal conceptions. Under American law, the commercial character of the activities of the state corporation would be determined in context and the form of the entity would play little part in the analysis. With respect to its operating subsidiaries, though, the Americans would treat those as commercial, independent and subject to private but not public law constraints. The more interesting questions for the Americans would be the ability to reach state assets should American courts determine that the separate entity status of state corporation and subsidiary ought to be disregarded.

More interesting still would have to be the approach of foreigners to the character of the agreements of the state corporation. It is clear that the Russians mean to muddy the waters by creating ambiguity between treaties and contracts. They are likely eager to reap the strategic advantage of characterizing their agreements as one or the other depending on which serves their interests best. Russian state corporations, then, point to a need to much better refine the notions contract and treaty. The simplest approach would rely on the fetishes of formalism. The better approach might be functionalist. That approach might be better if only because formalist approaches are far too easy to abuse where a public entity is free to act like a private one. Where states and their controlled entities could be limited in the scope of their activities, formalism provides a simple and convenient method of analysis. Where the public and private activities of state agencies converge in single agencies, then formalism tends to mask as easily as it reveals. In such a case, agreements of a commercial and participatory character ought to be treated as contract, and those of a regulatory character ought to be treated as treaty--irrespective of the form.

Ironically, the question--are Russian state corporations corporations a all--is largely irrelevant, except perhaps to those whose life work is to preserve legal field boundaries. And there is a certain benefit to that noble task--as a method of disciplining performance with the academy. But otherwise, the question is beside the point. Russia has chosen to provide juridical personality to a certain sort of organization. To some extent that juridical personality is public in character--for example in its conveyance of a power to conclude treaties. To some extent it is private in character--for example in its control of and maintenance of commercial enterprises. The private and commercial character of its operations may be said to implicate the law of corporations (undertakings) and corporate organization (as well as commercial and other law fields). The public and regulatory character of the enterprise is not. That the Russians seek the protection of public law for their private commercial activities--seek to clothe their contracts as treaties, their state regulatory activities as commerce, etc., may be effective within the territory of the Russian Federation, but will hardly carry over abroad. As the Russians seek refuge in 19th century conceptions of state immunity, they build 21st century juridical entities that construct in corporate form 20th century Soviet bureaucratism for the protection of their assets. For Europeans, this activity would appear to clothe public power in private garb. There is no "corporation" here--just the Russian state. And questions of liability and sovereign immunity would hinge on a different analysis. For the Americans, the nature of the entity depends on the character of its activity--corporation is it participates in the market, state if it regulates. In either case, there is no "corporation" there, there is merely the State: asserting its regulatory authority, on the one hand, and seeking to participate in economic activity, on the other.

Paraguay's New President and Ex-Bishop: Reform, Religion, and Constitution

It was reported today that the Holy See has "concedeu a redução ao estado laical ao presidente eleito do Paraguai, o ex-bispo Fernando Lugo, anunciou nesta quarta-feira (30) em Assunção, o núncio apostólico, Orlando Antonini." Santa Sé concede estado laical ao presidente eleito do Paraguai, O Globo July 30, 2008 (the Papal Nuncio Orlando Antonini announced today in Asunción that the Holy See has agreed to reduce to lay status Paraguay's President elect, the former Bishop Fernando Lugo). Lugo is viewed as a center left politician, whose election was made possible, apparently, as a consequence of a split within the dominant and conservative Colorado party. See Profile Fernando Lugo, BBC News On Line, April 12, 2008.
Born in 1951, Mr Lugo became a priest in 1977, and served as a missionary in Ecuador for five years. In 1992 he was appointed head of the Divine Word order in Paraguay, was ordained a bishop in 1994, and then served for 10 years as the bishop of the poor region of San Pedro. There, his support for landless peasants earned him the reputation of being "the bishop for the poor". He came to national prominence in March 2006 when he helped lead a big opposition rally in the capital, Asuncion. Id.
His most ambitious plans include the usual--land reform ("His most prominent pledge is to renegotiate the terms of the country's two huge hydro-electric projects" Id.) and the extraction of more money from developed states--in this case his principal target is Brazil (which has increasingly assumed 1st world status within the hothouse that his Latin American political relations). "In particular he wants Brazil to pay Paraguay a lot more money for the electricity it buys from their jointly-owned Itaipu dam, the world's biggest hydroelectric plant. He says he will take Brazil to the World Court in The Hague if necessary." Id.

Emerging Trends in the Convergence of Public and Private Law

Emerging Trends in the Convergence of Public and Private Law: Sovereign Wealth Funds, the Regulation of Sovereign Golden Shares, and the Regulation of Multinational Corporations

Notes of Address Given at the
Istanbul Chamber of Industry
Istanbul, Turkey
June 24, 2008

Thursday, July 24, 2008

Theocratic Constitutionalism Part IV: Religious Constitutions, Theocratic Constitutionalism, an Application of Theory to Reality

In other essays I have suggested distinctions between constitution and constitutionalism, and provided a working definition of constitutionalism. (Backer July 22, 2008). I have also suggested a framework for distinguishing between modern secular constitutionalism and an emerging system of constitutionalism I have called theocratic constitutionalism. (Backer 2009; Backer July 23, 2008). For this essay I will attempt to apply the principles of theocratic constitutionalism I have developed to a set of existing constitutions to attempt to illustrate the descriptive and normative potentials of this framework. This analysis is part of a larger work. (Backer 2008).

The fact that religion can claim pride of place within a constitutionalist enterprise does not mean that all constitutions with a reference to religion fall within the emerging traditions of theocratic constitutionalism. Just as one can have constitutions without constitutionalism, one ought to be able to distinguish between constitutions with theocratic elements and constitutions that are legitimately theocratic constitutionalism. Those elements include an embrace of the fundamental ideal that government ought to have limited power. Those limitations are structural and political. Political limitations include popular sovereignty, political participation by citizens and accountability by agents of the state for their conduct. Structural limitations are also grounded in rule of law assumptions. These include process limitations to guard against arbitrary or other conduct that is not grounded in law, and process for the legitimate exercise of state power. It also includes substantive rules for the exercise of state power. These include respect for the rights of individuals and the institution of a moral or ethical basis for state behavior grounded in what is right and just. The source of both process and substantive limits are not found in local practice but in a set of universal values to which the state and its organs are bound—the universal values and legal rules of religion.

This essay presents a preliminary excursion into the constitution of theocratic constitutionalism. It looks to two models at either end of the constitutionalist spectrum. The first of these, that of Iran, presents a model of constitution making that is legitimate within the context of theocratic constitutionalism. Along with Iran, this part examines some issues in constitutional projects that fall imperfectly within the model—for this purpose it looks to Afghanistan’s post-conflict constitution. The second, the constitution of Saudi Arabia, evidences a theocratic constitution without constitutionalism. So understood, that document does not present a legitimate foundation of government under principles of universalist theocratic constitutionalism. It then considers representatives of what might be classed as a group of states torn between models. The object is to consider whether religiously based constitutions can fall into a constitutionalist limbo—neither secular nor theocratic constitutionalists. For that purpose it looks to the constitutional projects of Pakistan and Egypt.

The focus of the analysis is on formal constitutions. I concede the importance of constitutional application. Constitutionalism, at least in its aspect as taxonomy, is concerned with the possibility of sham constitutions and the articulation of constitutionalist values there is no intention to apply. (Backer June 27, 2008) That was the thrust of a recent well publicized report of Human Rights Watch, an elite NGO. (Human Rights Watch January 31, 2008). These issues enrich but are not necessary for the object of this essay as it seeks to sketch out a working understanding of a legitimate formal constitutionalism grounded in values other than those developed through secular pluralist international political activity, even one skewed to the interests of the most powerful American and European states.

Wednesday, July 23, 2008

Theocratic Constitutionalism Part III: Towards a Theocratic Constitutonalism

In an earlier work, I explained the role of religion within emerging secular transnational constitutionalism: “Religion divides and does not compromise. It tolerates but cannot accept equality among those of different faiths. . . . Within the hierarchy of norms, the religious was treated as subordinate to universal secular and political norms. (Backer 2008; Backer July 22, 2008; Backer July 20, 2008). This hierarchy makes sense in a system in which customary norms developed among a heterogeneous community of nations. Among all the values identified as foundational to transnational constitutionalism, the primacy of religion or religious values is not among them. But what if the hierarchy of values was inverted? What if the foundational organizing norm of a constitutional system were religion—or specifically a religion—would a constitutionalist system still be possible?

Sunday, July 20, 2008

Theocratic Constitutionalism Part I: An Introduction

I have been exploring the nature and character of theocratic constitutionalism. A fuller examination will appear in published form as Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Legal Global Order, 16:1 Indiana Journal of Global Legal Studies – (forthcoming 2009). A short abstract of the manuscript can be accessed here.

Here is a short abstract:
The 20th century has seen a fundamental shift in the ways in which constitutions are understood. By the middle of the 20th century a new sort of constitutionalism emerged, rejecting the idea of the legitimacy of every form of political self-constitution. The central assumptions of this new constitutionalism were grounded in the belief that not all constitutions were legitimate, and that legitimate constitutions shared a number of universal common characteristics. These common characteristics were both procedural (against arbitrary use of state power) and substantive (limiting the sorts of policy choices states could make in constituting its government and exercising governance power). These process and substantive norms were, in turn an articulation of a “higher law” of the community of nations, reflecting a global communal consensus evidenced in common practice or international agreements. The authority and legitimacy of this global secular transnational constitutionalism has not gone unchallenged. On the one hand, state power traditionalists reject the notion of extra-national normative constraints on constitution making. On the other, there has been an intensification of challenges from universalists of different schools, from natural law theorists to pluralist constitutionalists. Among the most potent of these groups have been religious transnational constitutionalists who have argued that one or another of the current crop of universalist religions ought to serve as the foundation of normative disciplining of constitution making. But do these movements represent constitutionalism? If it does, then what are its characteristics? This article examines these questions from the context of the most developed form of theocratic transnational constitutionalism—that of Islam. The object will be to examine the great variation of Islamic and Islamic influenced constitutions to see if these represent the emergence of a constitutionalism with characteristics that can be clearly articulated, that it is possible within this system to distinguish between legitimate and illegitimate constitutions, and that there are characteristics of this constitutionalism that clearly distinguish it from secular transnational constitutionalism. The article starts with a critical examination of the main currents of constitutionalism. Section II focuses on an extraction of an understanding of the concept of constitutionalism as system and its synthesis into a working definition of constitutionalism in general and transnational constitutionalism in particular. Section III extracts from this examination a possible set of characteristics of legitimate Islamic constitutionalism, distinguishing Islamic constitutions from Islamic constitutionalism. Section IV then applies this understanding of theocratic constitutionalism to the constitutional “families” of religious constitutions in which Islamic law has become part of the structural architecture of the constitution itself, suggesting points of convergence and divergence with the values and norms of secular transnational constitutionalism.

What follows are materials draw from the introduction to that work. I suggest a way to approach the study of the theocratic element in constitutionalism. Later posts will draw on materials (1) exploring the idea of constitutionalism, (2) suggesting a definition of theocratic constitutionalism, and (3) applying the principles of this theocratic constitutionalism to examine the constitutions of states that have embraced religion within their constitutional systems in a number of different ways.

Monday, July 07, 2008

Creeping Toward Theocracy Without Constitutionalism in Indonesia: Using the State to Suppress Competitor Religions

Once upon a time, the state had, among its many duties, the suppression of heretical sects and the policing of the good behavior of tolerated religions. In 1500 Europe, for example , monarchs were expected to serve as the secular enforcers of the religious orthodoxy of the one true and only version of Christianity. Greek Christians were heretics, but far away and mostly the problem of Islam as territory populated by Greek Christians came increasingly under the control of Muslim conquerors. In those lands the conquerors sought to displace one eternal claim on the character of a particular territory (that of the Greeks) for another (their own). But within the lands under their control, there was a fierce and ruthless willingness to use the secular arm in the service of an expression of the only and only faith at the behest of those who would speak for it. Religious dissent and political dissent tended to be inextricably conflated. The Albigensians in France, the dissenters in England, the Hussites (Catholic version) in Bohemia and any number of others were branded as heretics and then given over to the state. The functioning of the Holy Office in its heyday prior to the Protestant Reformation was intimately tied to the police powers of the state. But all that changed with the rise of powerful heretical movements that eventually morphed into separate faith communities. It seems that what ultimately distinguished heresy from legitimate (and competing) religion, in early modern Europe at least, was the size and power of the community of its members. For others, there was severe discipline, or exploitation and expulsion. And death. Even after the rise of the state system in which religion was privatized (to a greater or lesser extent) and the state, certainly after the 19th century) was meant to serve multiple faith communities.

Still, little whiffs of this old fashioned fusion can still be discerned within Europe, and even encouraged when it suited the secular West. Poland provided the best example. Catholicism and anti-communism came together there to contribute to the transition from one sort of regime to another. The understanding was that religion could be a potent political force. And in that form--and against the Soviet Union--it was happily deployed in Poland and Afghanistan in the 1980s. And religion has always worked in the background as a powerful political force. But that role, especially in the United States, was as faction rather than as a directly controlling political force. "By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." James Madison, Federalist, No. 10 (November 22, 1787). With little access to official state power to enforce their norms, religion was relegated to politicking among the faithful for the attainment of its religious goals within the political sphere. The key ingredient of the old settlement was missing--the power to eliminate competing factions.

How interesting, then, to watch the use of the instruments of secular democracy in the service of a usurping religion, and the consequences for minority faith communities. I have spoken about the resurrection of apostasy as a public offense within democratic constitutionalism. See Larry Catá Backer, Constitution and Apostasy in Afghanistan, Law at the End of the Day, March 28, 2006. And I have spoken of one consequence, and uncomfortable one for Christians minorities within the dar al Islam, of the conversion of religion from a private to a public institution. See, Larry Catá Backer, The Other Sectarian War in Iraq: Iraqi Christians, the Vatican, American "Soft" Islam and a Future of Fractured Constitutionalism, Law at the End of the Day (September 19, 2007).

But now, it seems, that faction itself is becoming a potent weapon in the hands of religion--to undo the system of democratic governance through which it derived its voice. Faction, it seems, in the hands of religion may be the the means through which the techniques of democratic governance can be used to undo the democratic state itself. It was with this in mind that I read the rather bland report about a harder version of Islam that appears to have become the voice of democracy in Indonesia. Lucy Williamson, Indonesia Clerics 'Growing Force,' BBC News Online, July 7, 2008. The article itself is meant to publicize and legitimate a Report from a civil society actor, the International Crisis Group, that complains about the way that Islam is using the techniques of civil society engagement with democracy to suppress its enemies--that is to use the state to suppress its religious adversaries. For all that, the report was troubling for devotees of robust democratic factional politics.
On 9 June 2008, the Indonesian government announced a joint ministerial decree “freezing” activities of the Ahmadiyah sect, an offshoot of Islam whose members venerate the founder, Mirza Ghulam Ahmad. For months hardline Islamic groups had been ratcheting up the pressure for a full ban, while civil rights groups and many public figures argued that any state-imposed restrictions violated the constitutional guarantee of freedom of religion.
International Crisis Group, Indonesia: Implications of the Ahmadiyah Decree: Overview, Asia Briefing N°78 (7 July 2008). Indonesia has not become an Iranian theocracy; nor have Islamic divines usurped the system. Instead, "careful lobbying by hard line clerics is giving them a greater role in the country's politics. Hard line groups are poorly represented in parliament, but the report says they are finding ways around that. They have, it says, been able to develop contacts in the country's bureaucracy, and have used classic civil society techniques to influence government policy. " Indonesia Clerics 'Growing Force,' supra.
It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.
Federalist No. 10. Madison agreed that factions could be checked when none attained a majority. Where a faction was able to enlist a majority of citizens, then Madison suggests, direct democracy can easily be subverted. The cure for this ill, he argued, can be found in a federal republican form of governance grounded in the extension of the territory and number of peoples forming the population of the state--the larger and more heterogeneous the population the less likely that any one faction can attain a majority . But the rationale for this suggestion was, in retrospect, weak--it relied on a sort of Pyramid scheme for its effect.
Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.
Federalist No. 10. But Madison assumed that the greatest factions would be no faction at all. Religion, as a private matter was to remain beyond the reach of state politics. Even assuming that religious sensibilities would color the moral and ethical compass of legislation, religion itself could not use the state to further its own particular institutional goals.
Yet that is precisely what the dominant sect of Indonesian Islamic divines means to do--and by use of the very tools of faction that Madison once suggested would itself serve as a bulwark against factional usurpation.
Despite fatwas (religious opinions) on the sect from the Indonesia Ulama Council (Majelis Ulama Indonesia, MUI) in 1980, warning that it was dangerous, and in 2005, recommending its banning, there was no action by the government until June 2008. Why now?

At least four factors are responsible:

  • the systematic lobbying over the last five years of the bureaucracy, particularly the religious affairs ministry, for action against Ahmadiyah;
  • the search by hardline groups, including Hizb ut-Tahrir (Hizbut Tahrir is the Indonesian form of the international organisation’s name), for issues that would gain them sympathy and help expand membership;
  • the unthinking support given by the Yudhoyono administration to institutions such as the MUI and Bakorpakem, a body set up under the attorney general’s office at the height of Soeharto’s New Order to monitor beliefs and sects; and
  • political manoeuvring related to national and local elections.

Indonesia: Implications of the Ahmadiyah Decree: Overview, supra. But of course, factional politics is never enough. The real language of power is violence--and Indonesia's divines have not been reluctant to exercise their power violently. "In the week leading up to the issuance of the decree, two other factors came into play. One was a fear of violence that increasingly dominated government (re)action. On 1 June 2008 a thug-dominated Muslim militia attacked a group of the decree’s opponents, sending twelve of them to the hospital and ten militia members to court." Id. See also Report at p. 7. Madison, it seems, was right. Factions can be a powerful force. He was also right to believe that factions were essentially anti-democratic yet unavoidable. Yet he failed to understand the ability of non-political institutions to reconstitute themselves as faction. And he also vastly underestimated both the strength of religion-as-faction to threaten the very system set up to avoid the conflicts among religions as institutional actors. He never anticipated that religion could fashion itself as a majority faction "A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source." Federalist No. 10, supra. But the world today is not that of an 18th century American colonial matrix of dozens of essentially Protestant sects united by their common Christianity and divided by the minutiae of important differences in the expression of that faith. Global institutional religion, like global economic enterprises and civil society elements now dwarf states. The traditional theoretics of faction have been inverted.

And thus the creeping toward theocracy without benefit of constitutionalism. Of course, the Indonesians did not invent the modern forms of state suppression of competing religions at the behest of dominant faith communities. The Iranian Shi'a Islamic hierarchy has been ferocious in its persecution of Baha'is as heretics--deploying state power for that purpose. For the views from the persecuted community, see Persecution of the Baha'is in Iran. In its Christian Orthodox forms, of course, the disciplining is far more managerial and bureaucratic. The Russian Law on Religion is a case in point--instituted for the most part to control threats to the domination of the Russian Orthodox establishment against evangelical Christian sects.

While the Western press and global civil society frets about "hard line" Islamists in Indonesia, they miss the essential point of the suppression of the Ahmadiyah: religion as an institutional (rather than a moral and ethical) actor within systems of secular factional democracy. As institutional actors serving their own ends (rather than those of the state) they present a challenge to organized political power that, on the one hand may produce theocratic constitutionalism, and on the other theocratic governance without constitutionalism. Indonesia points to a third alternative: one in which the forms of secular constitutionalism masks the hegemony of religion without the protections of constitutional restraint. For it is one thing for religion to politic for the expression of state power in accordance with a certain morals and ethics; it is quite another for religion to advance its own institutional goals through the power of the state. And that, precisely, is what those Indonesian Islamic divines have intended.

Friday, July 04, 2008

Happy Birthday: A Reverie on the Road from the American to the Kosovo Declaration of Independence

As is customary on July 4th, Americans dutifully pay lip service to their Declaration of Independence (Declaration of Independence (The Unanimous Declaration of the Thirteen United States of America) (July 4, 1776)), a document crafted by the lawyers of colonial bourgeois elites and served on their betters in London. It is a superior reminder of the way in which law--and especially the common law as it had come to be understood in the face of Stuart absolutism--could come back to bite the Stuart's Hanovarian successors and their English representatives in Westminster. See Larry Catá Backer, Symposium: Law and the State in the Transnational Legal Order: Reifying Law: Understanding Law Beyond the State, 26(3) Penn State International Law Review 521 (2008).

Not that people actually read past the first few sentences--the English is now beyond the comprehension of most people. And even if they could, the ideas have long since passed into history--even eminences like Justice Scalia of the United States Supreme Court can be forgiven for mistakenly thinking that this document, like the later United States Constitution, was written with the sensibilities of an American Catholic with 20th century sensibilities and a longing for the culture of the civil law.

Still, the document is worth a careful read. A combination of lawyer's brief and statement of foundational political principles, the Declaration of Independence provided a framework for a determination of the existence of those conditions that permits dissolution of the indissoluble. That framework is simple enough:

One starts with a politeness--the need to explain "the causes that impel them to the separation." The Unanimous Declaration of the Thirteen United States of America, Para. 1. There is an absence of the 19th and 20th century obsession with ethnos. Indeed, the implication appears to be a compatibility of distinct peoples to live together within a single commonwealth in the absence of a necessity to dissolve "the political bands which have connected them with another." Id.

One continues with a recitation of the normative basis for measuring the worthiness of the cause--effectively the "higher law" against which the conduct of King, Parliament and colonial establishment is to be measured. This is, of course, the sentence that everybody remembers: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." The Unanimous Declaration of the Thirteen United States of America, Para. 2. Though few remember its context or character. Still, these principles now form the basis of substantive constitutionalism as understood in most parts of the world. See Larry Catá Backer, Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering (July 28, 2008). Indiana Journal of Global Legal Studies, Vol. 16, No. 1, 2008.

That the principles enunciated constitute a higher law--a law that not even a constitution (including our own) ought to trump is made clear in this recitation of principles as well. "That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." The Unanimous Declaration of the Thirteen United States of America, Para. 2. Still, this is a conservative document. Though the principles are great-- the tyranny must be greater to support a bill of particulars for separation. "Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. " Id.

Moreover, the Declaration reminds its readers--the established government ought to be given fair warning and a period of time to redress grievances. Paragraphs three and four of the Declaration remind the reader of the significant warnings given.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. Id.
Given fair warning, what separation requires is required is "a long train of abuses and usurpations", pursuing invariably the same object," which "evinces a design to reduce them under absolute despotism." Id. It is to the documentation of that long train of abuses, and to the argument that the accumulated acts and grievances amount to the establishment of despotism in violation of the higher law of state legitimacy that the succeeding list of twenty seven (27) charges are declared. There are far fewer people who are moved by this long recitation (or even moved to read them)--it lacks the drama of the first sentences of the second paragraph--yet it formed the heart of the document for contemporary minds. And many of its charges would eventually find their way into the American Constitution as limitations of governmental power. These charges, then, bear careful reading as a blueprint for a framework of limited government.

Yet none of this is as important as the Declaration's conclusion. First, of course, paragraph five makes the necessary declaration of independence, again looking to a higher sources for its legitimacy--the people and God--"appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states." Id. Thus, this is very much an act of self constitution. Those who executed the Declaration looked to no one but themselves, and to their sense of a higher order of principles of conduct: "And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor."

This support was to be tested until 1783 by force of arms. Had the colonists lost, then the Declaration would have perished with them. As it happened, the united colonies were successful and the Declaration of Independence acquired an influence that exceeds that of most other products of the political mind. Many peoples since that time have sought to rely on the framework of the Declaration--and many have failed in that effort when tested by force of arms. And that is the point--the Declaration of Independence--for all that it was a lawyer's document was meant to make law through force. This was the application of the "higher law" of states to which no recourse to the courts could be made.

How different the experience of states in 2008. Like much else in global political life, such declarations are now carefully managed by an international apparatus designed to limit the violent effect of such national aspirations, and to manage the process of separation through a political model grounded in bureaucratic order and judicial restraint. On February 17, 2008, the people constituting themselves as the Republic of Kosovo, declared their independence. The announcement of that event was memorialized, like that of their American predecessors, with a writing--the Kosovo Declaration of Independence.

This is no lawyer's brief. This is no act of self constitution. This is an apology. in the form of an an international contract between the people of Kosovo and its managers within the United Nations. Still--this is the form in which independence is declared today--with permission and subject to administration by those supra-national institutions that can guarantee that such a declaration will not be tested by force of arms. Indeed, the declaration can be reduced to little more than an assent to the conclusion and suggestions of a pair of reports prepared by the United Nations. United Nations Office for the Special Envoy to Kosovo, Report of the Special Envoy of the Secretary-General on Kosovo's future status, S/2007/168, March 26, 2007, and United Nations Office for the Special Envoy to Kosovo, Comprehensive proposal for the Kosovo Status Settlement, S/2007/168 Add.1, March 26, 2007.

The declaration is a statement of ther Assembly of Kosovo. It starts with a set of recitals. Several suggest the nature of events leading to the declaration--especially the disastrous relations with Serbia. Kosovo Declaration of Independence, recitals. One suggests the aberrational nature of the event: "Observing that Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation." Kosovo Declaration of Independence, recitals. This is emphasized in the body of the Declaration itself: "Our independence brings to an end the process of Yugoslavia's violent dissolution. " Id., para. 10. Yet, though relations were disasterous, and the cause of independence, still, the Kosovars recognize a desire for good relations with the "Republic of Serbia with whom we have deep historical, commercial and social ties that we seek to develop further in the near future." Id., at para. 11.

A number suggest that despite the ethnic/religious nature of the decision to secede, the resulting state will be multi-ethnic, democratic, human rights loving and international good citizen state, "in line with the highest European standards of human rights and good governance." Kosovo Declaration of Independence, recitals.

And the most important suggests the framework within which the declaration is made possible--the United Nations Report recommending a sort of independent status for Kosovo. Id.

The declaration itself is contingent:
We, the democratically-elected leaders of our people, hereby declare Kosovo to be an independent and sovereign state. This declaration reflects the will of our people and it is in full accordance with the recommendations of UN Special Envoy Martti Ahtisaari and his Comprehensive Proposal for the Kosovo Status Settlement.

Kosovo Declaration of Independence, Para. 1. After stressing the democratic and multi-ethnic secular acharacter of the state (Id., para. 2), the Declaration binds itself to the management of the United Nations.
We accept fully the obligations for Kosovo contained in the Ahtisaari Plan, and welcome the framework it proposes to guide Kosovo in the years ahead. We shall implement in full those obligations including through priority adoption of the legislation included in its Annex XII, particularly those that protect and promote the rights of communities and their members.
Kosovo Declaration of Independence, Para. 3. Indeed, the declaration stresses the relationship with the United Nations in terms of dependency, past and future: "We express our deep gratitude to the United Nations for the work it has done to help us recover and rebuild from war and build institutions of democracy. We are committed to working constructively with the United Nations as it continues its work in the period ahead." Id., at para. 7.

The dependence serving as the substructure of Kosovar independence extends to the subordination of the popular will to the higher law of the management by the United Nations. Thus, the Kosovo Declaration of Independence severely limits the scope of constitution making: "The Constitution shall incorporate all relevant principles of the Ahtisaari Plan and be adopted through a democratic and deliberative process." Kosovo Declaration of Independence, Para. 4. This is stark evidence of a perhaps exaggerated form of institutionalized transnational constitutionalism that had its start after 1945 with the constitutions of Germany and Japan. See Larry Catá Backer, God(s) Over Constitutions: International and Religious Transnational Constitutionalism in the 21st Century. Mississippi Law Review, Vol. 27, 2008.

But this is more than a submission to the limitations of the principles of transnational constitutionalism. This is an independence prematurely conceived and dependent for its success on the tutelage of others. One gets a sense of this not merely contingent but juvenile effort within the Declaration itself:
We welcome the international community's continued support of our democratic development through international presences established in Kosovo on the basis of UN Security Council resolution 1244 (1999). We invite and welcome an international civilian presence to supervise our implementation of the Ahtisaari Plan, and a European Union-led rule of law mission. We also invite and welcome the North Atlantic Treaty Organization to retain the leadership role of the international military presence in Kosovo and to implement responsibilities assigned to it under UN Security Council resolution 1244 (1999) and the Ahtisaari Plan, until such time as Kosovo institutions are capable of assuming these responsibilities. We shall cooperate fully with these presences to ensure Kosovo's future peace, prosperity and stability.
Kosovo Declaration of Independence, Para. 5.And indeed, the dependent nature of Kosovar independence is conceded by the declaration's stated intent to cede sovereignty almost as soon as it acquires a modicum of independence by seeking membership within the European Union. Id., para. 6. One gets the sense that Kosovo's independence is possible only as a dependent member of a larger supra-national community. Kosovo is not the only example of this reconsitution of power from state to supra national entity. There are ther sub national ethnic groups within Europe seeking independence from a traditional state but within the safety of the governmental structure fo the European Union. See Larry Catá Backer, The Euro and the European Demos: A Reconstitution, 21 YEAR BOOK OF EUROPEAN LAW (England) 13 (2002).

The obligation to establish a constitution is only one of a number of contract like provisions inserted into the Declaration. In addition, for example, the Declaration expresses a commitment to "undertake the international obligations of Kosovo, including those concluded on our behalf by the United Nations Interim Administration Mission in Kosovo (UNMIK) and treaty and other obligations of the former Socialist Federal Republic of Yugoslavia to which we are bound as a former constituent part." Kosovo Declaration of Independence, Para. 9. But perhaps most importantly, it declares that "Kosovo shall be legally bound to comply with the provisions contained in this Declaration, including, especially, the obligations for it under the Ahtisaari Plan." Id., at para. 12.

It seems that in the 21st century, risk has been taken from political events. Independence is no longer a self constituting event--violent, self referential and ready to be tested. Instead, independence is a contingent event. It is managed, subject to conditions, and acquired with the permission of those who are willing, by their suzerainty over events and parties, avoid violence by controlling the form and effectiveness of such declarations. As the Kosovo Declaration itself seems to declare--this is an odd independence, if it is independence at all. As Americans contemplate their own Declaration of Independence, asserted without management, subject to no condition but those of a common understanding of the legitimating authority of higher law, and subject to a conscious understanding of the need to defend the Declaration by force of arms--and to be be prepared to continue to do so preserve it independence in the future, the Kosovo Declaration of Independence reminds us of the way in which that world has passed away. Nations are now managed into existence--or managed out of existence. Declarations are now morphed inot agreements to abide by the rules of that web of obligations and commitments designed to make resort to proof by arms obsolete (except perhaps in the case of Israel, which is still subject it seems to the old rules).

And most important of all, the character of the contingency of independence has changed dramatically. The effectiveness of the American Declaration of Independence was grounded in an ability to defend it against military challenge. Once effective, the Americans were substantially unconstrained by foreign powers in the constitution of its government and the elaboration of its political organization. The effectiveness of the Kosovo Declaration of Independence, in contrast, is grounded on the ability of the international community to manage the process of separation. Once effective, the Kosovars will beable to organize their state, but subject to the constraints imposed by the guarantors of Kosovar independence--from the constitution of its government to the normative framework within which ithat government will be contrained. Kosovo reminds us of the ways in which independence has changed character in the centuries since 1776. That change represents a substantial evolution in notions of sovereignty, of power and power relationships. It suggests the strength of the international community, and the critical importance of supra national irganizations in the constitution of states--especially small ethnically homogenous tribal states.