On the Temptation of American law School Deans to Play Great White Father (or Mother)

Pauline Schloesser's book, The Fair Sex (New Edition, New York: NYU Press, 2005) nicely studies the way in which women in the post revolutionary American republic "were encouraged to consider themselves the moral and intellectual superiors to non-whites, unruly men, and children. These white women were empowered by race and ethnicity, and class, but limited by gender. And in seeking to maintain their advantages, they helped perpetuate the system of racial domination by refusing to support the liberation of others from literal slavery." Editorial Review, Book Description, Amazon.com. In his paper, In the House of the Great White Father: Race and Patriarchy in the Post Colonial World, paper presented at the annual meeting of the American Political Science Association, Philadelphia Marriott Hotel, Philadelphia, PA, Aug 27, 2003 (revised June 2006, Tony Affigne argues that:

The postcolonial racial regime theory holds that institutional legacies of European colonialism, throughout the Americas, shape racially stratified societies in which descendants of African slaves, American indigenes, and migrants from Asia have been systematically disadvantaged by rigid systems of legal, political, and economic inequality. The theory of racial patriarchy identifies a historical moment—at the founding of the United States—when the call for white women’s citizenship in the new nation was successfully rebuffed by linking women’s legal subordination to the same "natural" order which justified propertied white men’s domination of Blacks, Indians, children, and white commoners.

Tony Affigne, In the House of the Great White Father: Race and Patriarchy in the Post Colonial World Abstract.

Internalized (and just suppose for a second that they can be in some individuals at some times), these hierarchies can be expressed in the most subtle ways. But what makes internalized expression possible is neither systems of racism, gender hierarchy or other subordinating hierarchies. Instead, subordination flourishes in environments that appear to be meritocratic and competitive--and especially in the legal academy.

I was thinking about this the other day when someone related to me yet another story about a dean (who will remain nameless) nicknamed the "Great White Father" (I have heard stories of the "Great White Mother" as well), because of a proclivity to subordinating behavior and the rewarding of the internalization of subordinating hierarchy in his faculty. This type of dean comprises a well known type within the academy. Usually this person is preceded by proclamations of great work toward helping to overcome race/ethnic/religious or other disparities in hiring, etc. This becomes their calling card--well placed in discussions about accomplishments (directed usually to the regulatory institutions of the legal academy) .

But that is the problem. Having constituted himself (or herself) as the source and embodiment of appropriate racial (ethnic/religious/etc) equality, it is hard for him to lose control of the "race warrior" agenda--especially to members of the groups for whose benefit he appears to be directing his efforts. The Great White Father personalizes his role and his place within the institution in which he operates. The Great White Father tends to equate his personal with institutional goals and views. Conflating himself with the institution produces the usual result: disagreement over policy or administrative choices becomes personal. Opposing a Great White Father's decisions becomes evidence of a lack of collegiality or the internalization of appropriate institutional culture.

And then there is the gratitude. Gratitude becomes the median of communication between the Great White Father and his "children" but for whose efforts would have been forced to go elsewhere. The Great White Father's work can produce a correspondingly great need to receive the gratitude of those he has helped. Gratitude becomes the hallmark of the relationship between the objects of this sort of dean's efforts and the beneficiaries. And a failure to show the appropriate gratitude can make life difficult. But it is difficult to plan one's career around the need to be grateful--and it can be disastrous. Consider, for example, the Great White Father taking a benefited member of a traditionally marginalized group "under his wing." He might vest an attention, and expect an obedience to his desires, from younger faculty who were hired thanks to his great efforts, well above that required of "normal" hires. And the price for disobedience can be high. Even more senior faculty may not escape the "Great White Father's need to be helpful, and the consequences of disagreement. Heightened expectation of obedience, a greater attention to the work and efforts of this class of hires, of course mimics the pattern of the master-slave relation, but now attenuated in its modern form. And so easy to hide--behind merit assessments, collegiality concerns, and back office talk. It is not unusual for this type of dean to walk the halls and suggest to well placed white faculty colleagues, that the disobedient minority faculty "has problems," "doesn't seem to take advice well," "may not be working in the right areas," "does not focus on a single and traditional area of study," "dabbles," etc. And all out of concern--for the preservation of the status relationships between them.

The Great White Father can become miffed easily. The terse e-mail when the expected forms of respect are not forthcoming. The expectation of availability at times convenient to the Great White Father. The expectation that additional duties (to care for younger members of the faculty sharing the same characteristics, or students without expectation of additional compensation or other adjustment). All of this marks the relationship. The"helpfulness." The silent treatment. The punishment. And not just of the usual sort one expects of an administrator from time to time. These are tinged with status differentiations--disappointment that the faculty member failed to please. The most rewarded member of the minority faculty, within these relationship parameters, is the cooperative faculty member--the one who, having internalized the values of hierarchy and subordination, becomes the willing tool of the Great White Father. This is not a reference to "Uncle Tomism," a reaction both unfortunate and with its own difficulties. Rather, it refers to a willingness to lose one's independence (in whatever direction that independence might have taken one) to serve the interests of the "helpful" dean, who becomes the bearer of the best interests of the people he helps. It is the nature of the control relationship that marks the interactions. What one sees in the post colonial relationship, what one understands as a difficulty in law in a democratic society, merely reflects the difficulties of ordering personal relationships to avoid the subordinations the law, as a formal matter, declares has been removed as an impediment to formal relationships between people.

It is easy for a White dean to forget that the essence of equality is cooperation, mutual respect, and a willingness to share. It is to be hoped that the temptation to play the "Great White Father" can be both recognized and controlled--like any other vice.

Of Globalization and Carpet Merchants in Istanbul

Walking by the endless shops in the touristy SultanAhmet section of Istanbul can be instructive for the ways in which modern global economics works. It certainly opens a window on the methods through which global economic activity can adjust itself to political and violent disruption, especially in the case of trade with Americans.

Step into a carpet store, any carpet store. Over tea, if one identifies oneself as an American one might hear a couple of versions of the same story. Since September 11, 2001 and especially since American military involvement in Iraq, the volume of Americans to Istanbul has dropped dramatically. And that seems to have hurt business. Unlike Europeans, or people form other regions of the world, Americans tend to be free with their money. As one merchant put it--"They take taxis, they have large houses and buy big rugs, they like to decorate, and they are nice." But Americans are wary of coming into an area in which they feel they might be less welcomed. The American global war on terror thus produces a potentially significant effect on the expansion of global trade.

What to do? One solution, of course, is to do nothing. An adjustment of changes in consumer mix might require changes in product mix. Perhaps the carpet merchants will have to sell more smaller and cheaper quality carpets to more parsimonious Europeans and others. In effect effect, globalisation might have to absorb a bit of contraction. And that suggests that a judicious use of terror might be more effectively to disrupt trade rather than to blow up a couple of people. A policy targeting trade and trade flows, can more severely disrupt the current forces of economic expansion free movement (and from the terrorists ideological perspective, Westernization).

But that solution has been largely rejected by our carpet salesmen. Over a second cup of tea two approaches are explained. Both salesmen have refused to abandon the American market Both chose slightly different paths to recovering global trade. In one case, the caret dealer drew on his network of past American customers to develop a system of private sales within the United States. Loaded with samples, he sells his wares at up scale "tupperware parties" where a satisfied customer hosts the dealer, who then shows his wares at gatherings organized by the customer. The customer host gets a discount on his purchases and everyone else can sample the goods in their homes. Sales have increased.

The other dealer chose a different path. He also took his goods to the United States. But rather than work through a network of contacts and private sales he chose to steer some of his goods into the carpet auction market in the U.S. This market is global and well established. See the Jozen website and the O'Connell Guides. And now it is growing as a substitute for direct sales on site. He is also globalizing on a more permanent basis. He went on a fact finding tour of the United States and discovered that his cost of sales (including maintaining a showroom, transportation, taxes, etc.) were lower operating a shop directly in the United States than in Turkey. So he established his brother in a shop in a small but upscale resort. He plans to expand to others. And there is a dividend. As a shop owner in the United States (a small multinational enterprise) he has begun to serve as a distributor for the goods of others from Turkey. These include art pieces and other products that might be shown in his U.S. shops.

Thus, an interesting consequence of the disruptive potential of the war on terrorism. A drop in outbound American consumption has produced a shift to inbound investment in the United States. Global trade has been affected, but not as one might have predicted. And the positive consequences might be quite valuable for the United States, especially as foreign direct investment increases. Our carpet dealers, then, provide us with an interesting window on the complexities and character of economic behavior in a context in which the free movement of capital is privileged.

Of Political States and "Soft" Religion as the Basis for State Organization

Since the beginning of American difficulties in Iraq--that is since the moment the Iraqi population failed to metastasize into English yeomen and embrace the well matured and idiosyncratic American system of political governance--a certain academic and political element with apparent influence in political circles in Washington, has been pushing the idea of "soft" religion as a foundational basis for the constitution of states. And these ideas are meant to serve as the animating principles of a new and modern constitutionalism. Thus, for example, Amitai Etzioni, has written:

MUCH OF THE recent literature on Islam focuses on the question of whether Islam is or can be made compatible with a democratic regime, an inquiry closely related but not identical to the question of whether there is a soft Islam that can serve as an antidote to Islamic fundamentalism. . . . It follows that by promoting soft Islam we get two for the price of one: We promote a religion that is compatible with liberal democracy as well as one that can serve as an effective antidote to the fundamentalists. I take it for granted that Iraq should have a democratic form of government. But it should be one that does not treat religion per se as a threat but, potentially, as a mainstay of civil society, and hence as something that should be promoted - that is, to be sure, in its soft, moderate forms.

Amitai Etzioni, Mosque and State in Iraq, Policy Review, Hoover Institute, Oct.-Dec. 2003. This has been American policy at least since the beginning the second term of the younger Bush. See my post, President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, Law at the End of the Day, April 1, 2006. And it has not worked well. See my post, Constitution and Apostasy in Afghanistan, Law at the End of the Day, March 28, 2006. And perversely, this sort of position has appeared to encourage similar elements in the West to attempt similar interactions with national constitutional orders. See my post, Law, Law at the End of the Day, June 30, 2007.

The greatest problem with Western notions of "soft" religion, and particularly soft" Islam, is that it depends on Western interpretive tropes to make it work. For Iraq, and the rest of the dar al Islam, this is the West's version of Islam, and thus, to a substantial effect, a perverse fantasy. Consider again, Amitai Etzioni:

Treating women as men's equals in moderate Islamic societies, instead of in the demeaning and abusive way of Islamic fundamentalism, draws on two rather different principles. One is respect for the U.N. Universal Declaration of Human Rights and other more general, secular liberal political theories, which extol the virtues of individual dignity and individual rights. Another is a soft interpretation of Islam based on arguments such as those made by Forough Jahanbakhish in Islam, Democracy, and Religious Modernism in Iran, 1953-2000 (Leiden, Netherlands: Koninklijke Brill, 2001): Previous generations have misinterpreted Islamic sources, and the inferior status of women is a product of the social conditions at the time of the Koran, not the moral teachings of it. In Nine Parts of Desire: The Hidden World of Islamic Women (Anchor Books, 1995), Geraldine Brooks questions whether rules that were clearly meant to apply only to the Prophet's wives, such as seclusion, should have been extended to all Muslim women.

Amitai Etzioni, Mosque and State in Iraq, Policy Review, Hoover Institute, Oct.-Dec. 2003. While no disrespect is intended to the undoubtedly sound interpretations of Geraldine Brooks and Forough Jahanbakhish, both publishing in the West for Western audiences, it is not clear that either would be considered an authoritative voice within Islam nor necessarily a legitimate source of doctrine. One would be more confident of this view were there to be substantial bodies of opinions coming from authoritative sources within the states whose constitutional structures would be molded by this "soft" Islam. For an elaboration, see Amitai Etzione, A Perspective on Islam in Iraq, Speaking of Faith, March 4, 204. I leave without much discussion the perversity, from the perspective of democratic and representation theory, of religious interpretation of constitutional doctrine based on the writing of foreign academics who may have little connection with the religion or constitutional order involved.

None of this would go much beyond the tragedies in American controlled Iraq and Afghanistan were it not for a sort of seepage of American notions into the Turkish elections which are scheduled for the end of this week. For a snapshot of the issues see, Timeline Turkey, BBC News, June 4, 2007. Turkish secularists, the descendants for the founders of the Turkish Republic, are wary of the Justice and Development Party's elaborate multi year campaign to paint itself as a working version of "soft Islam."

Bedri Baykam - a staunch secularist, and one of the leaders of a movement dedicated to upholding the secular values of the republic - a soft religious revolution is under way. For Mr Baykam, the country has been forced "more and more into an anti-secular and pro-Islamic wave" by the government. He quoted the previous leader of the Justice And Development Party, Necmettin Erbakan - the leader of the first pro-Islamic government since 1923 - who said: "Turkey is going to change its regime towards fundamentalism - the debate is whether it is going to be with blood or without." He also argued that Turkey's bid for EU membership meant that Europeans were being "led to believe that this is a soft, moderate, Islamic democracy".

Islam Tests Secular Istanbul, BBC News, Oct. 7, 2005. This is elaborated in O. Pamuk, Soft Islam Takes Over in Turkey, New Perspectives Quarterly, 20(1):24-27 (2003) (Blackwell Publishers, UK.). While the secular Turkish parties may not have been convinced that Turkey's version of "soft Islam:" is plausible, the Americans have become big supporters of the AK Party.

With the rise to power of Turkey's Justice and Development (AK) Party some two years ago, many writers in the West began to praise the Turkish party as an example of a political formation which upholds both Islamic ideals and democratic values. Soon, the AK was being touted as a model which might be emulated in other parts of the Middle East.

Omayma Abdel Latif, Harmonising Immutable Values and Ever-Changing Mechanisms, Al-Ahram Weekly, 11 - 17 November 2004, Issue No. 716 (Focus). The writers suggest that "the reason why so many US writers are promoting the Turkish model is simply because the US is looking for an America-friendly Islam and the AK party offers a model of what Richard Falk, a Princeton professor, once described as "soft Islam"." Id. (dialogue with Ahmet Davutoglu, chief advisor to the Turkish AK Party).

And so a great irony of the present Turkish elections is the spectre of American support for a political party tat would edge Turkey towards a more religious constitution to the detriment of the traditional secular parties of Turkey. See for example, Umit Eginsoy, Rice Praises AKP, Says U.S. Must Back Democracy, Turkish Daily News, May 12, 2007 (Reporting that Secretary pf State Rice "strongly backed Prime Minister Recep Tayyip Erdoğan's ruling party," while noting that official statements from the Bush Administration were more circumspect). Indeed, among the American elite, it is secular parties, rather than the religious parties, that are specifically targetted for opprobrium. See, e.g., Fareed Zakarias, A Quiet Prayer for Democracy, Newsweek, May 14, 2007 ("In Turkey the popular ruling party, the AK—despite some background with political Islam—has proved to be the most open, modern and liberal political movement in Turkey's history. That extraordinary achievement may now be in peril because of the overreaction of Turkey's secular (and unelected) establishment."); Lee Hudson Teslik, Turkey's Existential Election, Council on Foreign Relations, July 18, 2007 ("the secularist-dominated Republican People’s Party (CHP) clung to a “rigid interpretation” of secularism, undermining its relevance."). The West approves of the AK Party because it does not not appear to be what it may be:

Those outside Turkey who view the recent mass rallies in Turkey in support of secularism as an expression of Western values should think twice. Most militant Turkish "secularist" are in fact suspicious of Turkey's aspiration to join the European Union, often strongly anti-American and generally uncomfortable with globalization. . . .By contrast, the AK Party has led one of the most impressive pro-democracy drives in Turkish history and has brought the country into accession negotiations with the European Union.

Suat Kiniklioglu, Getting Turkey Right, The International Herald Tribune, May 2, 2007. And there is a strong dividend that brings us full circle and may help color opinions of internal performance: the AK Party might provide Americans with a model for use in Iraq. Americans are looking for something that at least formally resembles a democratic religious party, and the AK appears to be it. That might be enough. Thus we have the spectacle of Westerners, hungry for a "tame" Islam they can abide, jumping all over themselves to push the Turkish religious party as a product fit for export throughout the dar al-Islam. See, e.g., Richard Falk, Reconsidering Turkey, Armenian Diaspora News Forum, October 6, 2004. This has left representatives of Turkish secular parties bewildered and increasingly bitterly cynical. For a bitter reflection of American elite thinking in this regard, one with its own prejudices quite intact, but nonetheless interesting for its evidence of sentiment, see Dr. Muhammad Shamsaddin Megalommatis, Fareed Zakaria: The Embodiment of Misinformation on Turkey, American Chrionicle, May 28, 2007.

This cynical deployment of foreign policy might give us pause. The presumption ought to be offensive--to Islam (which is quite capable of finding its own way, however troublesome that may prove to those strangers ot Islam in the dar al harb). But then again, perhaps Mr. Davutoglu is right:

One of my main arguments was that there has been a global revival of religion in all main civilisational centres, not only in the Muslim world, and that this revival is set to continue, because it is a natural response to the dogmatic modernism which prevailed in the 1950s. If you look at the transformation of many societies in the 1980s and 1990s, you can trace a revival of Christianity not only in the US, but in other parts of the world as well.

Omayma Abdel Latif, Harmonising Immutable Values and Ever-Changing Mechanisms, Al-Ahram Weekly, 11 - 17 November 2004, Issue No. 716 (Focus) (referencing Mr. Davutoglu's book, Civilisational Transformation and the Muslim World (1994)). It is possible that American foreign policy is seeking not only the rise of a "soft Islam" to pacify Iraq, but a model of "soft" religion as the basis for the constitution of the United States as well. If the American public can tolerate the rise of religiously based representative states within the dar al-Islam (I leave for the moment the telling problem of religious minorities in religious majority constituted states), perhaps they will tolerate one within the Western Hemisphere, and the rest of rthe dar al harb, as well. Whatever the results of the Turkish elections, the run up to them, from the American side, has been curious indeed.

The Management of Deviance and the Foundation of Law

First year law students are introduced to a legal fiction with extraordinary power--the "reasonable person" (who used to be a reasonable man before transcending gender several decades ago). The reasonable person is the touchstone against which conduct is judged. Deviation from the touchstone--at some point--produces legal consequences. Defining the normal, the concept has been subject to criticism, especially by groups (women, and people forming communities adhering to non-majority population mores). A useful discussion can be found in Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003).

Yet the basis of the criticism, once one plows through the nuance and complexity is simple: every self-conscious group within a larger political community wants to come within the definition of the normal, and law becomes a medium for administering--for managing--the normal. Thus, the problem of the reasonable person standard is almost invariably one of having drawn a person (and the identifiable group of which she is a part) out of the circle of the normal, and the object of the standard itself is to manage its borders. Inclusion is the object, but borders remain important. Thus social organizations confront two problems--defining the normal, and managing the borders between the normal and everything else, borders no one seems interested in eliminating. See Larry Catá Backer, Queering Theory: An Essay on the Conceit of Revolution in Law, in Legal Queeries 185-203 (Leslie J. Moran, et al. eds., London: Cassell, 1998).

In many parts of the world, both the normal and its borders, are a matter of faith. Faith communities will supply the definition of the normal, the tolerated, and the abnormal. The normal incurs no impediment. The tolerated is managed, with incentives created for a change in behavior or status so that the tolerated can become normal, and the abnormal is suppressed. Suppression can take the form of death, expulsion, quarantine (incarceration of a criminal or civil nature) or "cure." These notions, and the judgments they represent, become part of the fabric of society. And in that form can become self executing. That is, these notions are enforced not merely by official efforts (through the police power of the community) but also by the complex networks of social organizations that define the relationships between individuals who consider themselves bound together in one way or another.

In the West generally, and the United States in particular, both the normal, its borders, and its management have increasingly become a matter of science. American law is a function of, to some extent, the pronouncements of the "scientific" community, in everything from race relations (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ), to the incarceration of sexual "deviants" (Kansas v. Hendricks, 521 U.S. 346 (1997)), to the execution of the "abnormal"(Ford v. Wainright, 477 U.S. 399 (1986)), to the regulation of pregnancy (Stenberg v. Carhart, 530 U.S. 914 (2000)), and gender relations (City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702 (1978)). Science helps define the normal, and increasingly provides the means for both suppressing the abnormal and inducing the normal. Law, culture and science work together to foster a manged system of normality, tolerated deviance and the protection of the borderlands of the normal through the suppression of the abnormal.

As a cultural matter, then, the social exerts a tremendous power to induce the normal in individuals which is mirrored in law. It is no wonder, then, that over the last decade, Americans have found it increasingly medicate themselves to the "normal." And this medication produces a regime of constant management in which the individual cedes control over his will to the medical products she is told provide the vehicle to a normal and thus most privileged) life. Just as religiously based regimes are grounded in a mandatory abnegation of individual will to the that of the messengers or representatives of the Divine (the Islamic Republic of Iran provides an interesting living variant of this form), scientifically based appear to be moving toward a similar system of abnegation to the representatives of scientific truth.

An example of the power of these cultural understandings was recently on view in an advertisement of several pages inserted into a Sunday periodical aimed to the "common person" in the United States. The printed version of the Sunday, July 8, 2007, issue of Parade contained an ad spread paid for by AstraZeneca Pharmaceuticals LP and AstraZeneca LP, members of the AstraZeneca group of companies (collectively, the "Company") for one of its products--Seroquel. The ad starts with a cartoon of a woman who appears sad. She relates to us her condition--sometimes she felt sad for a long time and sometimes she felt "up." She was irritable. Her thoughts raced very quickly, talked too fast and found it hard to allow others to participate in conversation. This was wrong. And she was right to think so. For she had what might be the classic symptoms of a disorder--bipolar disorder. It is described by the National Institute of Mental Health: "Different from the normal ups and downs that everyone goes through, the symptoms of bipolar disorder are severe. They can result in damaged relationships, poor job or school performance, and even suicide. But there is good news: bipolar disorder can be treated, and people with this illness can lead full and productive lives." National Institute of Mental Health, Bipolar Disorder (What is BiPolar DIsorder). What makes the advertisement interesting, from a cultural perspective, is the way in which it seeks both to provide information about the condition, its acceptance of the realities of its effects (there is no known cure), the consequences of its symptoms (one cannot function effectively in society and in extreme cases might even do oneself harm), and the utility of its products for the management of the condition. The advertisement suggested that the ingestion of this drug will make its user "feel better." But it must be taken until the day one dies. And it appears, from the advertisement, as if any combination of the symptoms described, might be susceptible to characterization as bipolar disorder in need of permanent medication (do I suffer from bipolar disorder (or better put, ought I to become dependent on this product) if I have mood swings, talk to fast and too much, interrupt people and have a mind that races too fast?--only my doctor will know for sure). An invitation to a visit to the doctor.

The acceptance of a condition as socially deviant or negative, the production of a drug to ameliorate the condition, the embrace of a scientific culture in which conditions (deviations from the normal or acceptable) can be managed, the conferral of power on a group of intermediaries with specialized skills (medical professionals they are increasingly called), the cultivation of the social acceptance of taking this medication to "cure" the condition, and the necessary dependency that is produced by this management is not unique to Seroquel and bipolar disorder. One sees this pattern in everything from the consequences of hair loss (Rogaine), to the management of AIDs. See Martin A. Levin and Mary Bryna Sanger, After the Cure: Managing AIDs and Other Public Health Crises (University of Kansas Press, 2000) (the work is described as showing that " in the public health arena, management matters as much as medicine"). Indeed, the management of AstraZeneca (and other drug companies) management, like legislatures enacting statutes or courts deciding cases, can do little more than respond to this cultural phenomenon in the context of their own areas of social intervention. It has become a commonplace in the United States to treat all problems as medical disorders, or potential medical disorders. Deviations from the average can be a sign of addiction: Gambling, shopping, sex, the Internet can all be objects of addiction. Alcohol, drugs, caffeine, tobacco and food can be the substances through which the bad behavior of addiction can be triggered. And addictions can be managed, but not cured. Michael D. Lemonick (with Alice Park), The Science of Addiction, Time, July 16, 2007 at 42-48. Law plays an important part in the science of bad behavior through addiction. Law is a necessary means of managing addiction by controlling the substances that give rise to them. Law and science thus work in tandem.

There is a parallel between the constitution of power and order in a culture whose ordering principles are "science" and those whose ordering principles are "religion". Both are dependent on formal and informal networks of rules based on a cultural acceptance of the privileged normal, the sphere of a tolerated deviation and the suppression of abnormality. Both devote considerable resources to the discovery of deviance and to its management and both devote substantial resources to incentive structures that privilege the normal. Clearly systems based on science and those based on religion are not the same. Yet, both evidence the cultural power of faith (understood in quite different fashion). As system, both also evidence the relationship between cultural foundations and the distribution of power. There is a pattern to power--requiring a ceding of power to a class of intermediaries. It suggests the ways in which the relationship between individual and community might require a relationship of dependence and management in which social and political institutions (law, science and religion) are built around the "reasonable person." The power of the average is strong indeed.

Islamic Courts and Rule of Law in Malaysia:

Over the past several years the Islamic courts of Malaysia have built a significant place for themselves within the legal structure of Malay political life. Their operation provides a window on the way in which a more active participation of religion in political life, as a segment of people in the West have sought over the last several decades, might work within multi-religious political communities.

Three cases over the last several years provides a picture of the contours of religious participation in rule of law culture. The first case involved a woman who insists on being known as Revathi Massosai. According to a BBC news story, Ms. Massosai was seized by officials "was seized by the Islamic authorities in January when she went to court to ask that she be registered as a Hindu rather than a Muslim." Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. The case pitted Ms. Massosai's personal belief in her membership in the Hindu community against an Islamic Court's application of Islamic law to her to conclude that, because her parents had converted to Islam, she was Muslim as well.

Miss Massosai was born to Muslim converts and given a Muslim name, but she was raised as a Hindu by her grandmother and has always practised that faith. However, under Malaysia's Islamic law, having Muslim parents makes one a Muslim and, as such, one is not allowed to change one's faith or marry a non-Muslim.

Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. What made the case interesting for the methods used by the Islamic court to help Ms. Massasai embrace the faith Islamic law insisted she could not abandon, even after marrying a Hindu man in 2004 and giving birth to a daughter. Id. For having indicated an unlawful faith, when she sought to have herself officially registered as Hindu, she was

detained and taken to an Islamic rehabilitation centre. Her detention was twice extended to six months, during which time she says religious officials tried to make her pray as a Muslim and wear a headscarf. However, the claim that will particularly shock Hindus is that the camp authorities tried to force her to eat beef.

Jonathan Kent, Malaysia "Convert" Claims Cruelty, BBC News, July 6, 2007. Court officials were unmoved. They insisted that Ms. Massasai could be brought about to an appropriate relationship to the faith lawfully assigned to her, whether she thought she had embraced it or not. Officials are now trying persuasion, having placed her in the custody of her Muslim parents.

The second case occurred in late 2005. In that case, the state courts of Malaysia determined that they could not interfere with a determination of the Islamic courts for lack of jurisdiction. The case involved M. Moorthy, a national hero of Malaysia who, in 1997, as a Hindu, he was a member of the first Malaysian team to climb Mt. Everest. Muslim Burial for Malaysian Hero, BBC News, Dec. 28, 2005. It seems, however, that when he died, state Islamic officials jostled the family out of the mortuary in order to insist that Mr. Moorthy be given a Muslim funeral.

It seems that army colleagues of Mr. Moorthy insisted that he had converted to Islam while among friends in the army a year or so before his death. Id. This was apparently not news conveyed to his wife and family. Yet that assertion, it seems was sufficient to convince a Shari'a court that Mr. Moorthy was no longer a Hindu and thus his Hindu family had no authority with respect to the burial. In reaching that decision, Mr. Moorthy's family members were not allowed to give testimony or provide evidence because they were not Muslim. Id. Thus, they felt their only recourse was to the state courts.

The family went to the civil court and argued that Mr Moorthy was a practising Hindu right up to a recent accident when he fell from his wheelchair and lapsed into a coma. But the High Court agreed with government lawyers who argued the civil court had no jurisdiction.

Muslim Burial for Malaysian Hero, BBC News, Dec. 28, 2005. And the Hindu relatives of Mr. Moorthy were, apparently, without recourse. And Malaysians have a proper hero.

The later case caused tension within Malaysia and prompted the government to appear to take a different approach in a subsequent case. Jonathan Kent, Malaysia Seeks to Avoid Faith Row, BBC New, Dec. 7, 2006. In this case, "Rayappan Anthony converted to Islam when he took a second wife, a Muslim, in 1990. When that marriage failed, he went back to his first wife, a Christian, and made a formal declaration that he would return to Christianity." Id. But in Malaysia, only a religious court may permit a chance of faith, "and they invariably say no." Id. Again, after death, there is a contest between Islamic authorities and the family of the dead man, each claiming the right to have the man buried in accordance to the rituals of his faith--the one grounding faith on the jurisprudence of Islam, the other grounding faith on a purported renunciation of Islam and return to Christianity.

This presented a negligible legal problem and a large political one. Clearly, on the basis of the ruling in the Moorthy case, the religious courts had jurisdiction and Islamic courts would be permitted to decide whether Mr. Anthony had renounced Islam before his death. But, "Non-Muslims were outraged when Malaysia's civil courts decided they had no jurisdiction and refused to interfere. So, perhaps sensitive to this, the government has given this latest case to the attorney-general, its top civil law officer, instead of the Islamic court." Id. Yet this hardly represents a solution to the problem. "Thousands from the ethnic Malay majority have demonstrated against people being allowed to leave Islam" rejecting calls by religious minorities for neutral fora to decide interfaith disputes. Id.

At first blush, at least for Western sensibilities, something seems askew. After all, here is a case where courts of one faith have been given the authority to decide matters of faith that affect other faiths, and with respect to which the political community will not interfere through the intervention of its own courts. Yet, from another perspective, the Malaysian system evidences the way in which it might be possible to order a rule of law system that is multi jurisdictional, yet which applies law systems not necessarily tied to the political community from within which it operates. It is a system that retains an ordered jurisprudence, and firm divisions of authority between legal systems. And it is a system that respects a hierarchy of law. With respect to those matters committed to religious courts, such courts (and the rules they apply) are superior to those of state (secular) law administered by the Malaysian secular courts. And within the hierarchy of such religious courts, Islamic courts might be vested with supreme authority over the juridico-legal systems of other faiths.

Where faith has a political dimension, as so many in the United States have advocated, a system like Malaysia's evidences a method of incorporating the juridico-legal framework of faith communities within territorially bounded political systems. The results explode the monopoly of law making power of the institutions of the state in favor of transnational faith communities with a power to impose legislative norms on local citizens. Yet it is possible to do this in a way that accords with our understanding of rule of law systems--bound by rules that are enforced by a community through systems of independent courts. And the great insight of the Malaysian experience--states are not a necessary predicate to the existence of rule of law systems, only communities with coercive power over its members is required. The 21st century is one in which the religious question, dormant as a political matter in the West since the 18th century, will revive with a vengeance. Malaysia provides a glimpse at a future that may one day apply in the West.

Countess Satan: "Formulas Will Destroy the World and it is We Who Invent Them"

It has been about a quarter century since the West began to confront a new form of political expression--terrorist acts from members of non-governmental organizations intent on bringing change of one sort or another. Especially since the Soviet invasion of Afghanistan terrorism from one or another Muslim sect has both fascinated and terrified the West. There is a legal aspect to modern terrorism in the hands of so-called religious communities. While Catholic political terrorism provided the basis for such conflict in England and Ireland during the last third of the 20th century, it has been Muslim warfare, intensified since 1993 and the first attack on the World Trade Center in New York, that marks the beginning of the 21st century. Most is directed toward a revolutionary goal--the establishment of a true and authentic rule of law society. Unfortunately, that rule of law society is grounded in Islam and shari'a. And it is mandatory. A sort of divine jus cogens, it tolerates some patience in the attainment of its goals, but increasingly appears to command positive and violent action. In a global order in which such social and political organizations are rare, and in which democratic ideals may impede the establishment of this sort of normative legal order, it becomes necessary to shock the population into the appropriate frame of mind. There is no more compelling shock than death--random ad delivered in mass quantities. Such is the necessary means, they might believe, to replace the immoral social and legal order that holds the world in its grip today and replace it by a universal upheaval that will usher in the new godly age.

Terror as a means to the ultimate authentically just and legitimate society--under law--has become a matter of state policy as well, at least in places like Iran. Thus, for example, I have suggested the institutionalization of Hojjetieh Society views on the use of terror to hasten the arrival of the Mahdi might shape not only the actions of Hezbollah in Lebanon and Israel, but also the policies of the Islamic Republic of Iran. Larry Catá Backer, Iran’s’ Mahmoud Ahmadinejad, the Hojjatieh Society, and a Chaos Theory of International Relations Law at the End of the Day, July 14, 2006 ("The current Iranian President has suggested that it is possible to ground politics within a framework of preparation for the return of the Mahdi. He has also suggested, as have some adherents of organized groups within Shi’a Islam (including but not limited to the Hojjatieh Society) that it is possible to suggest an interpretation of that political framework that posits that it is in human hands (and perhaps the highest calling of humans) to focus all activity on actions that will create the conditions necessary for the return of the Mahdi. If such conditions include some sort of social, political, cultural or other forms of chaos, then the focus of state action becomes clear."). But it is not limited to the Muslim world. See Larry Catá Backer, Jerry Adams in Barcelona: On the Politics of Self Determination in Constitutional Systems, Law at the End of the Day June 8, 2006.

It is hard to remember that this sort of organized activity, and even this sort of purpose, is nothing new to the West. At the end of the 19th century and the beginning of the 20th century, another great menace grabbed Western intellectual attention. For a time during that period, it was European revolutionary Nihilism that appeared to have an effect in many ways similar to those offered up by the current religious military campaigns against Western targets. And this basis for terror had attached to it the imagery of religion that we have come to attach without much question to the current crop of revolutionary terrorism by non-governmental actors. At the time, the movement was seen as largely Russian in origin, and anti-autocratic in objective. A. Palmieri, "Nihilism," The Catholic Encyclopedia, vol. XI, (New York: Robert Appleton Company, 1911) (Nihil Obstat, February 1, 1911. Remy Lafort, S.T.D., Censor. Imprimatur. +John Cardinal Farley, Archbishop of New York) (describing "a Nihilist is one who bows to no authority and accepts no doctrine, however widespread, that is not supported by proof."). Among the great forces of this revolutionary movement--and the man credited (at the time by his opponents) with the progression of Nihilism from theory to terror, was Michael Bakunin (1814-76). The Catholic Encyclopedia thus pictured the man and his ideas:

Bakunin was extreme in his revolutionary theories. In the first number of "L'Alliance Internationale de la Démocratie Socialiste" founded by him in 1869, he openly professed Atheism and called for the abolition of marriage, property, and of all social and religious institutions. His advice, given in his "Revolutionary Catechism", was: "Be severe to yourself and severe to others. Suppress the sentiments of relationship, friendship, love, and gratitude. Have only one pleasure, one joy, one reward -- the triumph of the revolution. Night and day, have only one thought, the destruction of everything without pity. Be ready to die and ready to kill any one who opposes the triumph of your revolt." Bakunin thus opened the way tonihilistic terrorism. A. Palmieri, "Nihilism," The Catholic Encyclopedia, vol. XI, (New York: Robert Appleton Company, 1911) (Nihil Obstat, February 1, 1911. Remy Lafort, S.T.D., Censor. Imprimatur. +John Cardinal Farley, Archbishop of New York)

The parallels to current descriptions of the current crop of enemies of the West are apparent. See Ruel Marc Gerecht, The Gospel According to Osama bin Laden, The Atlantic Online, Jan. 2002 (discussing, in part, Osama bin Laden, The Encyclopedia of Afghan Jihad, the "Declaration of War Against the Americans Occupying the Land of the Two Holy Places" and the ).

There is a profound literary response to this sort of project as well. A sense of the similarities, and the power of religious imagery in terror warfare is nicely resurrected for us by Guy de Maupassant, He was a well known writer, especially of short stories, in France, at the end of the 19th century. "During the 1880s Maupassant created some 300 short stories, six novels, three travel books, and one volume of verse. In tone, his tales were marked by precision of style and a range of expression. Although his stories range from moving drama to sometimes bizarre comedy, it is his macabre horror stories that have received much attention." Guy de Maupassant.

The de Maupassant story that comes to mind is "Countess Satan" (The Classical Library, HTML Edition copyright 2001)." The story is simple (all quotes are from id.): in a Paris salon, the conversation turns to "dynamite, the social revolution, Nihilism, and even those who cared least about politics had something to say." Several people have something to say, but all conversation stops to hear the tale of Jules de C--'s description of his meeting with "Bakounine." Having fallen in love with the Countess Nisoka W--, nicknamed Countess Satan, he sought to attach himself to her. Though physically ugly, she was satanic: "she loved evil for the sake of evil. She rejoiced in other people's vices; she liked to sow the seed of evil in order to see it flourish. . . . It was not enough for her to corrupt individuals, she only did that to keep her hand in; what she wished to do was corrupt the masses." The temptation to become the lover of such a person was too much for Jules to resist. And the means appeared quite simple: "the only thing I had to do was show myself more perverted and satanic than she was herself. And so I played the devil." And the road to evil lay in the construction of theory and the manipulation of action through belief in others. "The so-called men of action only turn the handle of the miltrailleuse which we have loaded. Formulas will destroy the world, and it is we who invent them."

And in this way Jules is introduced to the idea of Bakunin: Countess Satan describes Bakinin's activities with both approval and disappointment. "At best, Bakounine would become an incendiary, and burn down cities. And what is that, I ask you? Bah! . . . He wants a prompter." And it is for this task that she cultivated Jules, resisting his more amorous advances. "She meant to make me Bakouine's prompter, or, at any rate that is what she said. But o doubt she reserved the right to herself. . . . to prompt the prompter, and my passion for her, which she purposely left unsatisfied, assured her of that power over me."

Now the set up is complete. Conflations of sexual and political tensions, of the contradictions of revolution and gender hierarchies, of the self destructive characteristics of members of the Western elite, who delight in supporting the sources of their destruction as a social and political class. And the nihilism as a form of religious perversion, as understood at the time: a desire to overturn the normative socio-political order in favor of another. Nihilism is presented here as an inversion of the social order. As Satanism is, in the eyes of then contemporary Christians as the mirror reverse of Christianity--as its inversion-- so the terror of revolutionary nihilism is the inverse of the ordered society it seeks to displace. As Jules relates it: "I became a sort of Western Prophet, a mystic charmer who was ready to nihilize the Latin races, the Saint Paul of the new religion of nothingness."

Thus we are set for the meeting of prophet and deity. And de Maupassant produces the exhilaration of bathos. This is bathos on all of the levels important to society in the late 19th century. Bakunin's house was "common" as that term was understood in the late 19th century as coarse, lacking in refinement and taste. Bakunin himself was physically common as well--fat and ugly. And that physicality touched an important nerve--he physically expressed his foreignness and thus also his cultural and temperamental inferiority: his physical features "proclaimed the Tartar, the old Turanian blood which produced the Attilas, the Genghis-Khans, the Tamerlanes. . . . The man was certainly not a European. . . a scion of the atheistic hordes who have several times already overrun Europe, and who, instead of ideas of progress, have Nihilism buried in their hearts."

Thus exposed, the alien Asiatic hordes attempt again a conquest of the West. But this time they use ideas instead of soldiers, and would induce the West to offer itself for conquest by its own hand. Jules professed astonishment: "for I had not expected that the majesty of a whole race could be revived in a man." And with the surprise came the abandonment of love. Now exposed for what he was, Bakunin's agent in the West, the Countess Satan, is revealed for what she must be, a "silly child" with little understanding of "the profoundness of that horrible philosophy which was hidden under his material activity." For it was not Jules but Bakunin who played the role of prophet--"it was not only from instinct but also from theory that he urged a nation on to Nihilism." Though much of his theory was derivative, and de Maupassant describes the derivation in Jule's narrative of his self revelation, "but all that Bakounine wanted was to overthrow the actual order of things, no matter by what means, and to replace social concentration by a universal upheaval." This was, for Jules, a Tartar's dream. Its institutionalization produced the initial shock troops of "true Nihilism, whose object is nothing less than to destroy the Western world."

From this revelation, Jules can do little more than run. And so he abandons both lover and prophet. Now done, he orders the opening of another bottle of champagne, "and make the cork pop! It will, at any rate, remind us of the day when we ourselves shall be blown up with dynamite."

Thus ends the story of Countess Satan. The story reminds us that the contemporary Western world, consumed with terrorism, has both witnessed this before and survived it. The story reminds us of the ease with which the West both encourages and detests the agents of its destruction. It reminds us the ways in which such forces are constructed as alien--on racial, religious or other terms. It reminds us of the sexualization of terrorism as an old form of resistance. See Backer, Larry Cata, "Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia," Yale Journal of Law & Feminism, Vol. 17, No. 1, 2005. And it suggests the ways in which terrorism spawns a fear that is naturalized within the culture. And it ends with a reminder that the acts of terror, the activity one sees, is ultimately far less threatening than the "philosophy hidden under his material activity." Countess Satan.

As we continue to confront the current war, for have no doubt it is a war, it is important to contextualize both the combatants and the nature of the conflict. Though the casualties of war are counted in bodies and damage to physical property, the focus of the war is neither the destruction of bodies nor property. And the battlefield is not the site of acts of terror, but the pages of the media, the writings of intellectuals, and the turnings of culture. In the 19th century, Guy de Maupassant provides one set of cultural reactions to this complex struggle. It will be interesting to see how the cultural products of the early 21st century will provide a window onto the construction of the foundations for the legitimacy of the legal order to emerge triumphant from the current conflict.

Law: Benedict XVI and the Constitution of Political States

On May 10 2007, Pope Benedict XVI started his visit to Brazil. See Papa apóia excomunhão de politicos pró aborto, O Globo, May 10, 2007 at 1. The visit was a homecoming of sorts for the Pope. Not in the usual sense, though. The Pope had not visited Brazil before in person. But in an intellectual sense. His visit provided an opportunity to tour the site of Benedict's greatest triumph as Cardinal Ratzinger about 30 years earlier—a triumph that might well have secured him his future at the Vatican.

For Brazil had been a hotbed of liberation theology, a form of engagement between Catholicism, social action and the state, that had energized many parts of Latin America in the 1970s and 1980s. In some parts of Latin America it caused its adherents, priests and well as lay Catholics, to challenge not only the secular leadership of the state, but the leadership of the Church itself. Benedict’s contribution to the dissipation of that movement within Catholicism, at least as an intellectually vibrant aspect of Catholic social thought, and the suppression of its foundational norms as heretical, is well known. See Instruction on Certain Aspects of the Theology of Liberation, given at Rome, at the Sacred Congregation for the Doctrine of the Faith, on August 6, 1984, the Feast of the Transfiguration of Our Lord. Joseph Cardinal Ratzinger, Prefect. The basis of Ratzinger’s attack was that liberation theology was unacceptable not because of its inherent totalitarianism but because of its essentially Godless totalitarianism. “‘The message of the Gospel cannot be reduced to politics. Nevertheless, the Gospel has certainly political consequences," the Cardinal explained.” Cardinal Ratzinger to Review Liberation Theology in Mexico, Catholic World News, May 9, 1996 ( ). These efforts helped cement his ties with the youngish new Pope John Paul II (himself on a crusade against the godless totalitarianism in Poland and the rest of the Stalinist Soviet Bloc) and ultimately played a role in securing for him the bishopric of Rome. But the attack on Liberation Theology was also grounded in more positive aspects. Principally these touched on issues of solidarity within the communion of the faithful. The meaning, exercise, and obligations of that communion, and the penalties for rejection of faith, of living in solidarity with the faithful, were points well developed in Ratzinger’s attack.

The success of these attacks can be seen today in Brazil. “In Brazil, though, liberation theology is far from dead. These days, instead of preaching class struggle and defying dictators, many veterans of the movement have adapted their rhetoric and role to the times. They work to promote environmental conservation or women's rights; they help the homeless and AIDS patients.” Monte Reel, An Abiding Faith in Liberation Theology: Since the Vatican’s Condemnation, Movement Veterans in Brazil Have Adapted to the Times, The Washington Post, May 2, 2005 at A12. Liberation Theology has been tamed.

This background is critically important when one attempts to understand Benedict’s trip to Brazil, and the statements he carefully chose to make there. It was not just to gloat about the transformation of the force of liberation theology that Benedict chose Brazil, but also to refine the points he made so effectively against Liberation Theology (and where better than in the place of its greatest potency). And that begin point can be described simply as: solidarity. Benedict used his visit to Brazil to emphasize the contours of the behavior necessary to show solidarity with the Church—what is the minimum requirements for being” Catholic.

Though felt in a particular way within Catholicism, the ideas of solidarity in the management of the integrity of communities and its self conception, provides important lessons to all governance communities in a transnational world. That solidarity focuses on the nature of the community—evangelization—and its organization—hierarchical and demanding a certain amount of fidelity and obedience. “All priests, religious, and lay people who hear this call for justice and who want to work for evangelization and the advancement of mankind, will do so in communion with their bishop and with the Church, each in accord with his or her own specific ecclesial vocation. . . . Aware of the ecclesial character of their vocation, theologians will collaborate loyally and with a spirit of dialogue with the Magisterium of the Church. They will be able to recognize in the Magisterium a gift of Christ to His Church [29] and will welcome its word and its directives with filial respect.” Instruction on Certain Aspects of the Theology of Liberation, given at Rome, at the Sacred Congregation for the Doctrine of the Faith, on August 6, 1984, the Feast of the Transfiguration of Our Lord. Joseph Cardinal Ratzinger, Prefect, at Part XI (Orientations)—Paragraph 3-4 ( dictates of other communities (including political communities) to which the member of the Catholic communion belongs. “It has to do with a challenge to the 'sacramental and hierarchical structure' of the Church, which was willed by the Lord Himself.” Instruction on Certain Aspects of the Theology of Liberation, Id., at Part IX (The Theological Application of this Core) Paragraph 13.

And contrary to the usual course for Benedict, he chose praxis over theological discourse to emphasize his points. “In this sense, it is necessary to affirm that one becomes more aware of certain aspects of truth by starting with 'praxis', if by that one means pastoral 'praxis' and social work which keeps its evangelical inspiration.” Instruction on Certain Aspects of the Theology of Liberation, Id., at Part XI (Orientations)—Paragraph 13. Thus, it should have come as no surprise that Benedict issued a statement, even as he was flying into Brazil that he supported the position of the Mexican bishops who has threatened to excommunicate Mexican politicians who voted in favor of the legalization of abortion within Mexico City. When the Brazilian Health Minister, himself a Catholic, was asked about the threat of excommunication for officials that acted contrary to the will of the Magisterium of the Church, he responded “a fé não pode ser excommungada” (faith cannot be excommunicated). Id., O Globo.

It seems that Benedict has the better of this dialogue with the Health Minister. No community can retain of autonomy without both a sense of those characteristics that make it different form others, and the willingness to enforce communal boundaries. If it means anything to be a Catholic, it means to be a Catholic through practiced faith, that is, through faith “on the ground.” There can be no higher calling in a system in which God sits at the to of a system guarded by its disciples. Disobedience must be disciplined, and a serious disobedience might well merit expulsion from the body of the faithful. In matters of faith, political officials in Mexico must pay heed to Rome even as they act as representatives of the people of a variety of faith communities. Benedict has thus been right to suggest that he would rather have a smaller community of truly faithful than a larger community of faithless. Certainly the Jews have proven the lasting power of such choices for grounding communal solidarity—and the risks.

In effect, Benedict rejects the notion of a "soft Catholicism" in the same way that many in the Muslim world have rejected a version of "soft Islam." Benedict suggests, and from his perspective not incorrectly, that faith is the paramount community, and that the obligation of the faithful must seemlessly conform to its requisites in all of the individual's actions--both personal and representational. One can only represent others in a political system by being true to the tenets of one's faith obligations. Thus, an individual cannot wear multiple hats, as individual and as representative of the people, and remain true to his faith. And in this faith, of course, the nature of both personal and representational obligations is subject to to the mandatory guidance of the Church's Magisterium. For Benedict, this represents no conflict, and no conflict with democratic values. In that respect he mirrors the theological perspective of so-called political Islam, both of which would marginalize secular or multi-normative systems. See Omayma Abdel Latif, Harmonising Immutable Values and Ever-Changing Mechanisms, Al-Ahram Weekly, 11 - 17 November 2004, Issue No. 716 (Focus) (interview with Ahmet Davutoglu, chief advisor to the Turkish AK Party, and referencing Mr. Davutoglu's book democratic political theory). Yet perspective matters. And from the perspective of those who must share a democratic political system with the faith of "hard" religion, the loss of representational power might be deeply felt, especially when the values of the Magisterium become translated into mandatory obligations in secular law.

But in the absence of a complete monopoly of the faithful, and the corresponding power to control conformity with its obligations, and in the context of the crrent sysrtem tending toward universal tolerance of faith communities (and the right to choose among them) , any "victory" of hard political religion, such as that suggested by Benedict, is perverse. For in the absence of a complete correlation between the community of Catholics and other faith communities, and in the absence of viable faith alternatives for individuals, the reality of enforcement of faith boundaries through expulsion cannot have the effect it might have 1000 years ago. In this sense, “faith” cannot be excommunicated—excommunication is separation from the body of believers. But faith extends beyond the body of believers. And faith to the precepts of other communities may require obedience every bit as strong as that to the body of the faithful. Thus, faithfulness to the political community may require faithlessness to the community of the faithful—at least to the extent that faith communities seeks to universalize its mores over the body of different believers. Benedict reminds us of the binding power of solidarity to the constitution o community, as well as to its viability. The Health Minister reminds us that in a world of multiple global communities of faith, solidarity has its limits. As long as a variety of communities of faith, political and economic communities compete more or less on an equal plane, the individual may chose freely from among them for the satisfaction of his earthly and otherworldly needs. But he also reveals the risks—authority and legitimacy mat be adversely affected by the migration from one to another group. In a transnational world, the multiple pull of solidarity will add a certain level of complexity to governance.

Permanent Mission of India to the U.N. v. City of New York: The State as Private Actor in a World of Private Actors

In a little noticed case decided June 14, 2007, the American Supreme Court held that the U.S. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. Section 1604 et seq. ("FSIA"), does not immunize a foreign government from a lawsuit to declare the validity of tax liens on property held by the sovereign for purposes of housing employees. Permanent Mission of India to the United Nations v. City of New York, No. 06-134 (argued April 24, 2007, decided June 14, 2007). A majority of the American Supreme Court used the occasion for an interpretation of a rather technical part of the FSIA to give notice of a broader and perhaps surprising approach to a (merely) statutorily derived sovereign immunity of foreign states--one which runs counter to the increasingly broad construction of a constitutionally derived sovereign immunity of states within the federal system. The case appears to deepen a jurisprudence that increasingly treats state actors like other juridical persons (corporations, and other associations) in their relationships within the territory of other sovereigns. This leveling of states, not just amongst themselves, but between states, as such, and other entities (and individuals) suggests a wider ambit for the application of an increasingly global (and transnational ) jurisprudence in which states are becoming just another actor, like individuals and entities that more or less freely move among political communities.

The dispute giving rise to the case centered on the tax status of a portion of buildings, one of which was owned by the government of India and the other by the government of the Republic of Mongolia, both of which were used, in part, to house some of its "lower level" diplomatic staff. Id., slip op. at 1-2. New York exempts from taxation property owned by a foreign government "if it is “used exclusively” for diplomatic offices or for the quarters of a diplomat “with the rank of ambassador or minister plenipotentiary” to the United Nations. N. Y. Real Prop. Tax Law Ann. §418 (West 2000)." Id., slip op. at 2. On the basis of this provision, the City of New York levied property tax on a portion of the buildings used to house lower level Indian and Mongolian diplomatic staff. By 2003, the City of New York claimed that India owed "about $16.4 million in unpaid property taxes and interest, and the Mongolian Ministry owed about $2.1 million." Id., slip op. at 2. Both governments refused to pay on the grounds that their property interests were immune from assessment. In 2003 the City of New York filed suit in federal court seeking declaratory judgments to establish the validity of the liens. The suits could accomplish little more than this because the FSIA does not permit actions to enforce foreclosure proceedings against states. See Id., slip op. at 2 and note 1. The City noted that an inability to foreclose on the lien did not reduce the necessity of the action for three reasons: (1) sometimes governments paid upon the granting of declaratory relief, (2) sometimes federal law permitted collateral action to be taken against a foreign government that refused to pay (the majority opinion noted that under the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2006, §543(a), 119 Stat. 2214 the federal government could reduce a country's foreign aid by 110% of a valid court judgment, and (3) the liens could be enforced against subsequent purchasers (and thus effectively would have to be paid as part of any transaction in the property). See Id., slip op. at 2 and note 1. The governments of India and Mongolia argued that the FSIA immunized them from suit in federal court (28 U.S.C. Section 1604). The City of New York argued that the federal courts had jurisdiction under an exception to the general immunity presumption under section 1605(a)(4) (where “rights in immovable property situated in the United States are in issue”") ( Id., slip op. at 3).

On one level, the case presented a fairly straightforward issue of statutory interpretation. Justice Thomas, writing an opinion joined by the Chief Justice and Justices Scalia, Kennedy, Souter, Ginsburg and Alito, applied a fairly straightforward, if narrow, textualist analysis of the provision to determine the extent of its coverage. Id., slip op. at 4-5. Thomas looked first to the text of the exception. He chose to presume a broad interpretation of the provision--

Contrary to petitioners’ position, §1605(a)(4) does not expressly limit itself to cases in which the specific right at issue is title, ownership, or possession. Neither does it specifically exclude cases in which the validity of a lien is at issue. Rather, the exception focuses more broadly on “rights in” property. Id., slip op. at 4.

He could have adopted a more conservative approach to the exception from immunity: reading the overarching grant of immunity from suit broadly and the exceptions, including that in Section 1604(a)(4) narrowly as a derogation from the general rule. In that case, of course, the question would be whether the text of the statutory exception specifically provided for suits seeking to test the validity of tax liens, a specific exception nowhere found in the statute.

Ironically, this was the position of Justice Stevens in dissent.

"None of those exceptions pertains, or indeed makes any reference, to actions brought to establish a foreign sovereign’s tax liabilities. Because this is such an action, I think it is barred by the general rule codified in the FSIA. . . . Given the breadth and vintage of the background general rule, however, it seems to me highly unlikely that the drafters of the FSIA intended to abrogate sovereign immunity in suits over property interests whose primary function is to provide a remedy against delinquent taxpayers." Id., Stevens, J., dissenting, slip op. at 1-2.

But this more conservative approach would have run counter to the broader jurisprudential objective of this opinion--the treatment of foreign states like any other non-state actor, and the reduction of state sovereignty in effect while appearing to preserve its form.

Having determined that the provision did not expressly exclude tax lien actions, Justice Thomas then looked to the original understanding of the terms used in the exception at the time of its enactment. Having consulted the 4th edition (1951) and 8th edition (2004) of Black’s Law Dictionary for the meaning of the terms "lien" and the earlier edition for the meaning of the term "incumbrance", along with the statutory definition of "1072 (4th ed. 1951) (lien), the definition of "tax lien" under New York State law, and discussion of the interests of a lien holder in property (citing United States v. Security Industrial Bank, 459 U. S. 70, 76 (1982), a case interpreting the federal Bankruptcy Code), Justice Thomas concluded that the "practical effects" of these definitions bear out that a "tax lien thus inhibits one of the quintessential rights of property ownership—the right to convey. It is therefore plain that a suit to establish the validity of a lien implicates “rights in immovable property.”" Id., slip op. at 4-5.

Justice Thomas could have ended there. But he didn't. And what he wrote next provides the most interesting, and perhaps the most important, part of the opinion. Justice Thomas sought to support his interpretation of the exception to foreign sovereign immunity by reference to "two well-recognized and related purposes of the FSIA: adoption of the restrictive view of sovereign immunity and codification of international law at the time of the FSIA’s enactment." Id., slip op. at 5. For the majority, the foundation of the restrictive theory of sovereign immunity is essentially simple, and derives from a communication from the executive branch now over half a century old: "the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis)." Id., at 711." Id., slip op. at 5-6, quoting in part Letter from Jack B. Tate, ActingLegal Adviser, U. S. Dept. of State, to Acting U. S. Attorney General Phillip B. Perlman (May 19, 1952) (Tate Letter), reprinted in 26 Dept. of State Bull. 984 (1952), and in Alfred Dunhill of London, Inc. v. Republic of Cuba, 425 U. S. 682, 711, 712 (1976) (App. 2 to opinion of the Court). This public/private divide forms the cornerstone of, and thus the boundary around, the special status of a state as a sui generis form of artificial personality.

In systems in which the family of states collectively define the outer boundaries of power, such a restriction should be fairly narrowly read. If one starts with the presumption that states are not essentially corporations with special rights (sometimes), then the restrictive theory of sovereign immunity ought not restrict overmuch. Too great a restriction would have the effect of reducing the sovereign to corporation, and thus subject to power either by other corporations (in horizontal relationships governed by the law of contract) or by other special entities when they act within the now narrow band of sovereign (special) authority governed by international law. The result is perverse, in a way--while adhering to the formal distinctions between state and non-state actor, thew effect substantially guts the differences between states, as a class of legal actor, and other juridical persons (or even individuals). In this realm of substantive horizontal legal equivalence, power passes form states to transnational systems.

This was the point raised by Justice Stevens in dissent. "Diplomatic channels provide the normal method of resolving disputes between local governmental entities and foreign sovereigns. . . . The fact that the immunity is the product of comity concerns rather than a want of juridical power. . . does not detract from the important role that it performs in ordering our affairs." Id., Stevens, J., dissenting, slip op. at 1 (citing, in part, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 486 (1983). But now, sovereigns are reduced from special actors within a community of equals above non-state actors, to just another special form of juridical personality (one with certain privileges) within the territory of others. Disputes between sovereigns are no longer the subject of horizontal relations among them, but of the same sort of administrative treatment any state reserves for its own subjects before its courts. And it is that reduction--rather than the specifics of the immunity at issue--that is most troublesome for Justice Stevens.

A whole host of routine civil controversies, from sidewalk slip-and-falls to landlord-tenant disputes, could be converted into property liens under local law, and then used—as the tax lien was in this case—to pierce a foreign sovereign’s traditional and statutory immunity. In order to reclaim immunity,foreign governments might argue in those cases—just as the Governments of India and the People’s Republic of Mongolia tried to argue here—that slip-and-fall claims,even once they are transformed into property liens, do not implicate "rights in immovable property." But the burden of answering such complaints and making such arguments is itself an imposition that foreign sovereigns should not have to bear. Id., Stevens, J., dissenting, slip op. at 2-3.

Just like any other corporation engaged in private business activity. And that, precisely, is the majority's point--states can be no different than Coca-Cola or Pepsico. As Justice Thomas emphasizes, "property ownership is not an inherently sovereign function." Id., slip op. at 6 (citing, quite (over)broadly it seems, Schooner Exchange v. McFaddon, 7 Cranch 116, 145 (1812)). And the property exceptions to immunity in both the Restatement (Second) of Foreign Relaitons Law of the United States Section 68 (1965) at 205 and Art. 31(1) of the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, [1972] 23 U. S. T. 3227, T. I. A. S. No. 7502 , were read as supporting that result.

The result is not in itself remarkable. As Justice Thomas himself was surprisingly willing to suggest, foreign tribunals have come to similar conclusions on the basis of the application of similar principles. Id., slip op. at 8 (citing 1957 Y. B. Int’l L. Comm’n 94–95 (402d Meeting, May 22, 1957), Deputy Registrar Case, 94 I. L. R. 308, 312-313 (D. Ct. The Hague 1980) and Intpro Properties (U. K.) Ltd. v. Sauvel, [1983] 1 Q. B. 1019, 1032–1033). The interesting point is the accumulating effect of this decision on the position of the state in a transnational context. The prince, as sovereign, has come a long way since the early 19th century. No longer is it the exceptional case where the prince "may be considered as so far laying down the prince, and assuming the character of a private individual," Schooner Exchange v. McFaddon, 7 Cranch 116, 145 (1812). In a world in which goods, services and people increasingly move freely across borders, where states and economic, social, cultural and religious entities originating therein, engage in business and corporations assume the role of sovereigns abroad, it seems that the prince is becoming far more the individual and far less the sovereign outside the borders of her own realms. In such an order of things, law, as the majority demonstrated, goes transnational.