This paper starts with the proposition that critical theory appears to destroy particular normative foundations but in actuality has been unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise. In other words, I embark on a journey to understand the reasons for a peculiar recurrence in attempts to overcome the limitations of human normative foundational frameworks. For that purpose I will start with the insights of a 19th century German philosopher and a 14th century North African historian on death and transfiguration, overcoming and recurrence. Those insights then provide a basis for a preliminary aphorisic articulation of the mesh work of understandings within which critical theory, like the normative foundations it attacks, must operate.
The 20th century, the great century of the Rule of Law, was also the century of murder, of endings par excellence. The beginning of the century saw the extermination of the last elements of the ancien regime in Europe, China and the Indian sub-continent. The middle of the century saw the attempted extermination of peoples deemed undesirable – Jews in Europe and the Middle East, Tutsi and other peoples in Africa, Muslims and Slavs in Southern Europe, Ba’hais and other non-Muslims in Persia, and large elements of the Khmer population. The end of the century saw a world gearing up for ethno-cultural conflict on a global scale and race cleansing in sub-Saharan Africa.
Ideas and beliefs were also murdered, at least in the popular conception of the intelligentsia of various stripes. Western intellectual elites, through any number of versions of modern and post-modern theory have presumed themselves at the vanguard of the masses responsible for the death of God and God’s running dog – Law. In particular, a universal belief in the transcendence and eternity of an all powerful God died in the West even as this Western God’s analogues met similar fates in Japan and China, and even as the traditional Gods re-constituted themselves in the dar al-Islam, and the lands of the Hindus and Buddhists. A similar fate was suffered by law, through a century of utterly shameless perversions, all of different sorts, and at the hands of the virtuous as well as of the virtue-less in practically every place on earth. Law, like God, has lost its transcendence. Murdered thus was certainty, legitimacy, progress, a modernist eschatology which “recounts the experiences of a subject affected by a lack, and the prophecies that this experience will finish at the end of time with the remission of evil, the destruction of death, and the return to the Father’s house, that is, to the full signifier.”
But the death of ideas and belief has not been clean. Merely proclaiming the a-historicity of some theory or other does not make it so in fact. And the narcissism of a theory focusing exclusively on a ‘self’ and its ‘other,’ a narcisism that characterizes much theorizing, provides little relief. Perhaps Peter Fitzpatrick summarized the post-modern difficulty best:
The apocalyptic announcements of law’s demise which tumbled out of the period 1940-1980 have given way to more nuanced but still terminal relegations. Instead of the law’s being extinguished in, say, scientistic administration, legality becomes terminal in the sense of having reached an end, but not an annihilation. Some instances:
- law’s dissipation yet persistence in the postmodern or in psychoanalytic positing of a diversity of authority in place of, or along with, the paternal;
– law’s abject emplacement within varieties of revived sovereign or ‘exceptional’ assertion, including biopolitics and war;
– law’s subordination in the cause of integral or self-subsistent systems;
– law’s constituent realignment within globalization, such as its becoming predominantly identified with specific functions – the control and surveillance of the dispossessed and the protection of ‘private’ spheres.
Critical theory’s declaration is still bedeviled by history, progress, and thus, politics. Critical theory, despite its pretensions otherwise, still reflects a longing for a repose, the repose of utopia, of the ability to escape history through the embrace of the perfect, of a leisure that ends history in a sort of Eden. Murder brings repose, an ending. And it is to this end that deconstruction has been bent. In short, it’s anti-modernist stance, used to attack current versions of accepted normative structures – like law, religion, science, and the like – often masks an inherent modernism. STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY 2 (1991).
The shadow of Friedrich Nietzsche looms large over the last century’s killing fields of ideas and belief. Nietzsche opened the way from out of the conundrum enmeshing all who operate within all systems – of morals, economics, politics, race, sex, faith and so forth – a conundrum that appeared to choke thought at every level and among all peoples. Humanity, in search of the rational foundations of their various systems, instead provided “merely a scholarly variation of the common faith in the prevalent morality; a new means of expression for this faith; and thus just another fact within a particular morality. In place of an unthinking acceptance of normative systems as given, Friedrich Nietzsche, Beyond Good and Evil at § 186. such system must be problematized – examined, analyzed, questioned and vivisected. And so the various great actors of the 20th century appeared to examine, analyze, question and vivisect the sovereign normative foundations for systems of race, economics, social organization and philosophy, at every level of social organization.
Yet, so seriously bent on the undoing of the institutionalized hierarchies of human organization that they inherited, theorists in the 20th century sought in Nietzsche those clues and insights through which they might interrogate and undermine the claims to legitimacy and primacy of those organizations – in order to produce a variation of the thing undermined which was this time to last for another eternity. “I call it the moral hypocracy of those commanding. They know no other way to protect themselves against their bad conscience than to pose as executors of more ancient or higher commands (of ancestors, the constitution, of right, the laws, or even of God).” Richard Posner, Past-Dependancy, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, – U. CHI. L. REV. – (2000). In rejecting history in favor of pragmatism for the judiciary, Posner, to some extent, draws inspiration from Nietszche’s On the Uses and Disadvantages of History for Life, in FRIEDERICH NIETZSCHE, UNTIMELY MEDITATIONS (R.J. Hollindale trans., 1963). For a commentary on Posner’s use of Nietzsche, see Ryan Fortson, History, What is it Good For?: A Commentary on a Talk by Richard Posner, 1 STAN. J. LEG. STUD. 11 (2000). Yet the humorlessness of those acolytes, from German National Socialists to European Marxists to those without ostensible affiliation to communities within organized society, blinded them to the central irony, the comedy, of Nietzsche’s critical insight – the connection between overcoming and recurrence, death and transfiguration – to the construction not only of individual but also of communal normative structures. Moreover, the supra-historicism and cyclical nature of what ibn Khaldun identified centuries ago as “group feeling, ” as well as its amorality, conflated with notions of the transcendent rights of groups to arrange their relationships with other groups unrestrained by the will of others produced neither progress nor a history ending overcoming. Instead, they produced the grand theoretical statements of the American Declaration of Independence, the Irish Easter Proclamation of 1916 and the emerging international laws of self-determination, on the one hand, but also provided the basis for the construction of racist, exclusionary, xenophobic states.
And so, perhaps with some horror, these same elites have discovered that both God and Law, resurrected and transformed, having escaped their tomb, leave to theory, once again and always, the task of overcoming another God and another Law, cycling between explosions of the masses and consolidations of those explosions in ever narrower circles of authority, or between vigor and decadence. Everything else is detail – all is contained within the moment. And so the very oh so human comedy of death and transfiguration, extinction and resurrection.
This paper examines the implications of the notions of death and transfiguration, so critical to Nietzsche’s philosophy in the 19th century and ‘Abd-ar-Rahmân ibn Khaldûn’s historiography in the 13th century, on critical theory’s ‘deconstructive’ project. Death and resurrection, and its related notion, that of the imperative of the overcoming of the social or personal self, forms a core part of the modernist world-view only when tied to a purposive history – that is, a history with a beginning and an end to which people and systems are condemned to strive. That condemnation is as much embedded in Christianity as it is in the social, political, ethnic and religious ideologies that have engulfed the world with a vengeance since the 19th century. It is the fatal bacillus which has enervated deconstructive theory as well. Yet Nietzsche understood and ibn Khaldun intuited centuries earlier, both the relationship of death and resurrection/transformation on the one hand, and self-overcoming, the freeing of the self from its own self-constraints, on the other. Recurrence and overcoming, overcoming and recurrence produce patterns that repeat, the details are all contextual. “The new courage – no a priori truths. . . but free submission to a dominant thought which has its time, e.g., time as a property of space, etc.”
People, groups, all conscious organisms simultaneously seek the protection of oblivion, an acceptance of repose in some perfect and eternal state, equilibrium, on the one hand, and also struggle to overcome the desire for oblivion, that is struggle against faith. Such struggle leads to emancipation for those who can successfully struggle. That success is valid for those who struggle, but cannot be gifted to others. Each in turn must struggle – individual, group, organism – against the reality bequeathed to it. And thus the process of self-overcoming and recurrence are linked through death and transformation. “Existence seeks an organizing principle.” Yet organizing principles are personal to the organism that struggles or accepts. Only the struggle remains the same – over and over. Friedrich Nietzsche, The Will to Power at § 1066. Only the eternal can overcome eternally; in all other cases, overcoming recurs eternally. J (1886) at § 200. These open systems of multiple cycles constitute the matrix within which the hermeneutical projects of Gadamer and his followers, can occur, foundations can be established, maintained, problematized, destroyed, and replaced.
Within the matrix of death and transfiguration, within the ahistorical reality of recurrence, in which movement from foundation to foundation is dictated through multiple individual and communal processes of self-overcoming, of attacking the postulates of existence with the tools of a vivisectionist, deconstruction serves as a constant – the instrument of vivisection itself. Deconstruction must deconstruct – vivisecting the vivisectionist reveals the constant thirst, the lust, for murder. The substance of deconstruction is process – the process of murder, of the crucifixion of foundations of substantive assumptions and belief, of permanency of norms and law, an endlessly repetitive task. “Anyone who has once thought through this possibility to the end knows one kind of nausea that other men don’t know – but perhaps also a new task!” Deconstruction is a lust, insatiable, that can offer us nothing other than analysis, the all embracing intention of the murderer. To add something more to the destructive impulse, to seek repose for the murderer, to counsel that the bringer of death kill no more, invites the obliteration of the killer by its own hand, and the false faith of the modernist in progress, history and ultimate repose.
In the 21st century, this “age of disintegration,” the matrix of communal and self overcoming/return reveals itself most clearly. Critical scholarship may say it targets culture, but it can strike only at the current forms of its popular iteration. Yet as long as groups exist, as long as identity matters, it will not succeed in ridding us of subordination and marginalization. It will succeed in reordering them. This is a conclusion pointedly made by Foucault with respect to the establishment of a people's court as a revolutionary method of administering justice by judging the police. For Foucault, and in much of deconstruction theoretics, the form of revolution, if it is to be revolution, "remains to be discovered." I suspect that he is wrong. The bringers of revolution will carry the baggage of the past and reimpose it in new form.
The touchstone of the matrix of recurrence and self awareness, and the utility of critical theory, is grounded in a self and un-self consciousness of difference within and between individuals and communities with finite but reproducible life-spans. Communal and self overcoming and recurrence each stand alone and interact with the other in combination, and in addition they are simultaneously symbiotic in their interactions (each needs the other to complete their respective definition) But here I mean to cast difference in a different light. Let us consider the structure of this current normative post-modernist foundation:
1. The perception of difference is a foundational motivating force in the animation of groups.
2. The significance of difference is constructed, that is, difference constructs value and the value assigned to difference is a deliberate act, whatever system of judgment is used to assign value. Value, in this sense, is not absolute, unchanging, or capable of only one determination. Any difference can be assigned any value.
3. Hierarchy is founded on difference. The significance of difference lies in its consequences both for the ordering of individual perception and the construction of communities of individuals. Hierarchy represents a communal tattoo, a brand, on individuals sharing a particular view of difference and its value.
4. Hierarchy based on difference produces advantage. In the absence of advantage difference can have little significance, and the expression of consequence is best displayed on the individuals embracing a particular system of difference, significance and advantage.
5. Advantage is a foundational motivating force in individuals. The will to power, here naturalized in symbiosis and combination with Nietzsche’s conceptions of the eternal recurrence and the Overman.
6. Individual advantage is contextual.
7. Individual advantage can be satisfied tangibly and intangibly.
8. The nature of advantage and its value is constructed by communities from out of an embrace of the significance of difference-producing hierarchy and, thus developed, is absorbed more or less imperfectly by individuals – whose internal constitutions attempt a replication of the form and manner of the construction of the significance of difference and the production of hierarchy.
9. Difference, hierarchy and individual advantage render its products – communities – highly unstable and multiple.
10. The longevity of any set of perceived significant differences animating group feeling within a community, constituted as borders between groups, is a function of memory, history, tradition. Memory, in this sense, is highly unstable and contingent.
11. Instability permits manipulation – hermeneutics is a function both of human (individual) mortality and the dynamic vectors of advantage within a community – ‘they’ ‘us’ and ‘me’ are under constant reconstruction.
12. Instability is contained within individuals and their communities by exportation – by devices that appear to remove control of difference, significance, hierarchy and the like from out of the individual and community to something outside, with which communication is difficult – religion (God), science (economics, politics), philosophy (marxism), law (the Rule of Law).
13. Exportation reinforces hierarchy by producing smaller sets of individuals or communities with the power to communicate with the norm giver – the priest/judge is thus created.
13. Hierarchy and community are neither linear nor three dimensional, that is, universal nor supra-historical; Multiple groups can occupy the same tangible and intangible space.
14. Individuals occupy different positions simultaneously.
15. Simultaneity produces a blended matrix of advantage – individuals and communities occupy different positions simultaneously within which they must simultaneously navigate – consider for example the multiple positions of the homeless Catholic middle aged white male in Salt Lake City, Utah.
16. Individuals maximize advantage by optimizing aggregate membership in groups; advancing the group cohesion of those communities offering the maximum advantage and problematizing the foundations on which other groups are constituted and the individual members of such groups understand themselves.
17. The bases of group cohesion are destroyed when differences critical for group identity, hierarchy and individual advantage are no longer accepted as significant, that is, when those bases are de-legitimized by an internal or external criticism.
18. Criticism which does not disturb the underlying normative basis of group cohesion merely masks conflict over relative advantage, and thus hierarchy, within a group, rather de-legitimizes the normative basis of group cohesion. Such criticism, the work of much that passes for critical theory in the West, can weaken a group vis-a-vis others and destroy the relative advantage to an individual of membership in that group relative to others, but at its most successful results merely in the substitution of one set of hierarchies for another, each still true to the underlying normative foundation fo the group.
19. Criticism which vivisects the underlying normative basis of group cohesion, that is the faith of a group in its uniqueness and characteristics, can dissolve the bonds that hold a community together, and as replicated in the individual, results in an overcoming of the self.
20. The dissolving of these bonds does not free an individual of community or of himself. Where such dissolution occurs, individuals – über and unter menschen – have reconstituted themselves as communities on the bases of other sets of perceptions of difference. And so community is resurrected, the same and different, overcome yet overcoming, transfigured through death but not dead.
21. The disciplining forces (Foucault) within this foundational matrix of overcoming and recurrence, rests on a variety of devices – systemizations of rules or beliefs that serve to preserve and legitimize the pragmatics of difference and hierarchy, and thus communal cohesion and individual advantage. Natural law, philosophy, history, economics, tradition, theory, religion have all served.
22. For every device, there exist the elements of its own subversion; necessary in the context in which difference, advantage, hierarchy, the community and the individual are imperfectly constituted. The critical impulse also serves individual, and sometimes communal, advantage. Systems of subversion can also be systematized: Natural law, philosophy, history, economics, tradition, theory, religion have all served.
23. The strength of each of these devices is dependant on a number of factors, but is never fixed by those factors, nor by the contexts in which they might be used:
A. The extent to which the device is deemed transcendent, absolute or ‘neutral’ (that is not appearing to confer advantage while conferring advantage) and thus more difficult to manipulate.
B. The self-containment, the completeness, of the system represented by the device, that is, the utility of the device for ‘answering’ all question or covering all topics.
C. The extent to which the device can be used to direct behavior; the extent to which ambiguity is thus eliminated and the individual desire for repose, for the satisfaction of the instinct of the herd, can be satisfied.
D. The utility of the device in affirming the form and value of particular characteristics of difference.
E. The extent to which the device is useful or effective in policing of the borders of difference, that is of the characteristics that separate communities and distinguish between individuals.
F. The effectiveness of the device in defining, providing and protecting individual advantage.
G. The synergistic potential of one device to amplify the effectiveness of others, and conversely, the imperviousness of the device to critique.
24. The nature of these devices is neither fixed nor unidirectional. Every community, every individual, may use any device for particular and contextualized advantage. Every device can be used against itself, that is, each can be used by groups in conflict simultaneously to advance inconsistent advantage (for examples in the wars of religion).
25. As conflict sharpens between or within groups, or within the individual replicating or rebelling against the normative basis of communal organization, ambiguity shrinks, differences sharpen, and the value of advantage (the stakes) increase (Christie Davies). The internal battles over abortion rights in the West, the conflict between the free market and socialist political systems of the U.S. on the one hand, and the former U.S.S.R. and the P.R.C. on the other, the status of females in Zimbabwe since 2000, are all examples of conflicts in which ambiguity retreated, differences sharpened and discipline increased as conflict intensified.
26. The dissolving of communal bonds, even those replicated within the individual does not free either individuals or community of rules of belief. Consequently abandonment of one set of binding devices is followed by the embrace of another set, also subject to the same forces that eventually caused the abandonment of its predecessors.
27. Patterns of individual and communal action, thought and belief are universally shared and finite. Every individual, every community, conforms to a finite number of patterns of behavior, thought and belief (ibn Khaldun), whether or not such patterns are successfully deployed.
28. Patterns, and their inverses, are invoked for and against themselves and the same pattern may describe the actions, thoughts and beliefs of groups and individuals in direct conflict.
29. With enough information about difference and patterns of individual and communal action, it may be possible to anticipate the vectors, if not the amplitudes, of changes. As a subset, it should also be possible to anticipate the value of advantage, and its interaction with community and the individual.
30. The ability to anticipate and the power to intervene are closely related. Anticipation and intervention suggest a system, even one of infinite variability at some level of detail, bound by its own internal logic/illogic. This bound system compels and limits not only humankind, but God as well. That is, that which is or may be characterizable as transcendent is no more than the outward projection of the sum of all possible interactions, of all possible manifestations of overcoming, death and transfiguration. In one sense God, and law, are bound by the objects of their worship or obedience. We effectively obey only ourselves. In another sense, individuals can attempt to play God – can attempt to influence the direction and magnitude of cycles of multi-communal/individual overcoming and reconstitution for particular ends.
31. The consequence for critical theory: critical theory may appear to destroy particular normative foundations but be unable to provide anything other than the space in which substitute foundations can be embraced and substitute communities can arise.
CONCLUSION:
In the West, it is commonplace to lay on Nietzsche’s tomb the laurels of the Hindu Kali the triumphant hero – the destroyer of the institutions of law and religion in the West, the nihilist par excellence. This great critical enterprise of the last century substantially misses the point of Nietzsche’s critical project. Either we delude ourselves into some theory or other centered on the eternity of law, or, in the face of the end of law’s eternity, we cling to a fatuous nihilistic indeterminacy. Law, like God, overcomes itself, and in the overcoming returns.
My idea is that every specific body strives to become master over all space and to extend its force (__its will to power:) and to thrust back all that resists its extension. But it continually encounters similar efforts on the part of other bodies and ends by coming to an arrangement ("union") with those of them that are sufficiently related to it: thus they then conspire together for power. And the process goes on__
The West thus teeters between Good Friday and Easter, between death and transfiguration. So critical theory over the course of the last century or so has set the stage for the greatest joke of the 21st century. We in the Christian West have thought of ourselves as successful in the role of God and law killer. In a great revaluation of values we think, we have infused ourselves with the spirit of the last great community accused of God killing – the very people our elites had taught us to despise for two millennia. Now, we believe we have killed again. This time we have killed the spirit of God in its primary manifestation – law. But God has a sense of humor. Our murder has, by the very hand of the murderer, given rise to God, and to law, again, the same yet different – transformed, invigorated and full of a new faith in itself. The task of critical theory begins anew.
BIBLIOGRAPHY:
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‘ABD-AR RACHMAN IBN KHALDÛN, THE MUQADDIMAH: AN INTRODUCTION TO HISTORY (Franz Rosenthal, trans., N.J. Dawood, ed., 1967) (1377) (Muqaddimah (Introduction) to Kitâb al-‘Ibar (Book of the History of the World)
Larry Catá Backer, Some Thoughts on The American Declaration of Independence and the Irish Easter Proclamation, 8 TULSA J. COMP. & INT'L L. 87 (2000).
STEVEN BEST & DOUGLAS KELLNER, POSTMODERN THEORY 2 (1991).
ANTONIO DOMÍNGUEZ ORTIZ, LOS JUDIOCONVERSOS EN LA ESPAÑA MODERNA 137-171 (1992).
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Michel Foucault, On Popular Justice: A Discussion With Maoists, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS 1 (Colin Gordon ed. & trans. 1980)
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Monday, August 14, 2006
Reports of Fidel Castro's Death are Still Exaggerated: On the Failing Health of the Commandante and the State of the Repubic of Cuba
Fidel Castro recently had published a Mennsaje del comandante en jefe al pueblo de Cuba y a los amigos del mundo ("Message From the Commander in Chief to the Cuban People and Friends Around the World"). The message is interesting on several levels. This short essay is meant to highlight soem of the less obvious but more interesting points of the message.
The message reads in full as follows:
Yo no puedo inventar noticias buenas, porque no sería ético, y si las noticias fueran malas, el único que va a sacar provecho es el enemigo. En la situación específica de Cuba, debido a los planes del imperio, mi estado de salud se convierte en un secreto de Estado que no puede estar divulgándose constantemente; y los compatriotas deben comprender eso. No puedo caer en el círculo vicioso de los parámetros de salud que constantemente, a lo largo del día, se mueven.
Puedo decir que es una situación estable, pero una evolución real del estado de salud necesita el transcurso del tiempo.
Lo más que podría decir es que la situación se mantendrá estable durante muchos días, antes de poder dar un veredicto.
Estoy muy agradecido por todos los mensajes de nuestros compatriotas y de muchas personas en el mundo.
Lamento haberles causado tanta preocupación y molestia a los amigos en el mundo.
De ánimo me encuentro perfectamente bien.
Lo importante es que en el país todo marcha y marchará perfectamente bien.
El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.
Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.
Hay que luchar y trabajar.
Most Western media attention was focused on the firsat several paragraphs. The great issue was the state of Castro's health. And this provided a rare moment when the Western media could exercise now rusty skills in reading Soviet style prose. But there is little mystery here, and lots of self conscious playing Castro has always been a master at deploying Western media for his own purposes. Many insurgent groups have learned much from his fifty year of school of media relations--from the leader of Hezbollah to the Irish Republican Army. Castro starts by admitting that he will play games with respect to the state of his health. And it comes as little surprize that he lays the blame for this squarely on American policy, and plans for a post-Castro Cuba. And he reveals little. His state of health is stable and his condition is evolving (but then again, whose health is not always in exactly that same state!). But he drops enough hints to suggest either that his health is bad, or that it is not. The irony wrapped in ambiguity of the Spanish used to deliver both the usual jab at the Americans and to obscure the meassage for the benefit of endless discussions by Western media suggests both that the message was written by Castro, and that his mental state is quite up to its usual standards. And that is where the analysis of the Western press usually ends.
I find the last part of the massage much more interesting than the beginning, as delightful as the lesson in elegant writing as the opening of the message may be. Let us examen each of the last four statements one at a time.
Lo importante es que en el país todo marcha y marchará perfectamente bien.
Castro here suggests that his health has not changed or otherwise affected the operations of the state, nor would the condition of his health affect it. The country continues to operate perfectly well. I suspect that the thrust of the message is actually its opposite. The sentence suggests that nothing has changed and that things are progressing well. My sense is that this sort of declarartion in the past has generally suggested that plans, long in the making, have been triggered. These plans, and the changes they envision, are designed to ensure that the country continues to operate "perfectly well" within the parameters of a Marxist Leninist froundations ovberseen by the dictatorship of a particlar segment of the proletariat.
El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.
That suggestion appears to be confirmed by this statement. The country is preparing for its defense by FAR and the people. The plans that have been activated clearly call for the supreme leadership role to be assumed by the military. While the West focuses on the cult of the Castro family, debating the charisma of Raúl Castro, they fail to understand that Raúl hhas spent the last several decades cultivating a vigourous and tight knit military command struicture that operates like its Chinese counterpart. The big bang for this transformation was the purges of 1989 and the reconstitution of the military therafter. While the West focuses on Raúl, the collegial rulting body of the military will be reconstituting the political and economic organization of the state to meet the demands of a post-Fidel Cuba that preserves their position and is consonant with their ideology.
Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.
Castro reminds his readers that he is not bluffing. These plans have a lonmg genesis and were first tried on a very small scale, apparently to Catro's satisfaction, whern he recently fell from a speaker's platform in Villa Clara.
Hay que luchar y trabajar.
Castro makes the usual call here for work and defense. The suggestion, of course, is that while there will be (great) changes, nothing fundamental will have changed. The Americans will continue to try to subvert the regime, the regime will continue to adhere to the normative basis of its social, political and economic norms. And it will remain the duty of the people to continue to work and defend as they have been expected to do this since 1959.
Together these last four sentences were meant, I believe, to serve as a message and a warning. Plans long in the works have now been put in place. The elements of the military and civil elites on the Island will be deploying over the next several weeks. Very much like those Japanese transformer toys that start as a car and can be twisted into another form, the Cuban state apparatus is now starting its transformation. Whether or not the plan will work remains to be seen. Indeed, the transformation itself will likely be invisible to the West unless its security apparatus look carefully. But in the end, the leadership hopes that the structure of the political apparatus of the state will be transformed to make possible a more collegial leadership structure, led by the military. The economic structure of the state will be prepared for a Western style reorganization--essentially a spin off of state enterprises with ultimate ownership and control to be retained by the state, but more indirectly.
For Americans, so resolutely focused on the political regime, and so wed to an analysis based on personality cults, the message, correctly read, is not good news. A prudent America would be watching very carefully to determine what exactly the Cubans began doing in the weeks leading to the hospitalization of Fidel Castro (surely the planning was begun, and the orders for change given, weeks before the hospitalization, with the so-called public delegations coming weeks after the official delegations actually took place). And a prudent America would be monitoring Chinese communications with FAR much more intently than the polls revealing the “feelings” of the Cuban people for Raúl Castro. Sadly, for American interests, little of this will be done. The Cubans are counting on that.
The message reads in full as follows:
Yo no puedo inventar noticias buenas, porque no sería ético, y si las noticias fueran malas, el único que va a sacar provecho es el enemigo. En la situación específica de Cuba, debido a los planes del imperio, mi estado de salud se convierte en un secreto de Estado que no puede estar divulgándose constantemente; y los compatriotas deben comprender eso. No puedo caer en el círculo vicioso de los parámetros de salud que constantemente, a lo largo del día, se mueven.
Puedo decir que es una situación estable, pero una evolución real del estado de salud necesita el transcurso del tiempo.
Lo más que podría decir es que la situación se mantendrá estable durante muchos días, antes de poder dar un veredicto.
Estoy muy agradecido por todos los mensajes de nuestros compatriotas y de muchas personas en el mundo.
Lamento haberles causado tanta preocupación y molestia a los amigos en el mundo.
De ánimo me encuentro perfectamente bien.
Lo importante es que en el país todo marcha y marchará perfectamente bien.
El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.
Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.
Hay que luchar y trabajar.
Most Western media attention was focused on the firsat several paragraphs. The great issue was the state of Castro's health. And this provided a rare moment when the Western media could exercise now rusty skills in reading Soviet style prose. But there is little mystery here, and lots of self conscious playing Castro has always been a master at deploying Western media for his own purposes. Many insurgent groups have learned much from his fifty year of school of media relations--from the leader of Hezbollah to the Irish Republican Army. Castro starts by admitting that he will play games with respect to the state of his health. And it comes as little surprize that he lays the blame for this squarely on American policy, and plans for a post-Castro Cuba. And he reveals little. His state of health is stable and his condition is evolving (but then again, whose health is not always in exactly that same state!). But he drops enough hints to suggest either that his health is bad, or that it is not. The irony wrapped in ambiguity of the Spanish used to deliver both the usual jab at the Americans and to obscure the meassage for the benefit of endless discussions by Western media suggests both that the message was written by Castro, and that his mental state is quite up to its usual standards. And that is where the analysis of the Western press usually ends.
I find the last part of the massage much more interesting than the beginning, as delightful as the lesson in elegant writing as the opening of the message may be. Let us examen each of the last four statements one at a time.
Lo importante es que en el país todo marcha y marchará perfectamente bien.
Castro here suggests that his health has not changed or otherwise affected the operations of the state, nor would the condition of his health affect it. The country continues to operate perfectly well. I suspect that the thrust of the message is actually its opposite. The sentence suggests that nothing has changed and that things are progressing well. My sense is that this sort of declarartion in the past has generally suggested that plans, long in the making, have been triggered. These plans, and the changes they envision, are designed to ensure that the country continues to operate "perfectly well" within the parameters of a Marxist Leninist froundations ovberseen by the dictatorship of a particlar segment of the proletariat.
El país está preparado para su defensa por las Fuerzas Armadas Revolucionarias y el pueblo.
That suggestion appears to be confirmed by this statement. The country is preparing for its defense by FAR and the people. The plans that have been activated clearly call for the supreme leadership role to be assumed by the military. While the West focuses on the cult of the Castro family, debating the charisma of Raúl Castro, they fail to understand that Raúl hhas spent the last several decades cultivating a vigourous and tight knit military command struicture that operates like its Chinese counterpart. The big bang for this transformation was the purges of 1989 and the reconstitution of the military therafter. While the West focuses on Raúl, the collegial rulting body of the military will be reconstituting the political and economic organization of the state to meet the demands of a post-Fidel Cuba that preserves their position and is consonant with their ideology.
Nuestros compatriotas lo conocerán todo a su debido tiempo, como pasó cuando mi caída en Villa Clara.
Castro reminds his readers that he is not bluffing. These plans have a lonmg genesis and were first tried on a very small scale, apparently to Catro's satisfaction, whern he recently fell from a speaker's platform in Villa Clara.
Hay que luchar y trabajar.
Castro makes the usual call here for work and defense. The suggestion, of course, is that while there will be (great) changes, nothing fundamental will have changed. The Americans will continue to try to subvert the regime, the regime will continue to adhere to the normative basis of its social, political and economic norms. And it will remain the duty of the people to continue to work and defend as they have been expected to do this since 1959.
Together these last four sentences were meant, I believe, to serve as a message and a warning. Plans long in the works have now been put in place. The elements of the military and civil elites on the Island will be deploying over the next several weeks. Very much like those Japanese transformer toys that start as a car and can be twisted into another form, the Cuban state apparatus is now starting its transformation. Whether or not the plan will work remains to be seen. Indeed, the transformation itself will likely be invisible to the West unless its security apparatus look carefully. But in the end, the leadership hopes that the structure of the political apparatus of the state will be transformed to make possible a more collegial leadership structure, led by the military. The economic structure of the state will be prepared for a Western style reorganization--essentially a spin off of state enterprises with ultimate ownership and control to be retained by the state, but more indirectly.
For Americans, so resolutely focused on the political regime, and so wed to an analysis based on personality cults, the message, correctly read, is not good news. A prudent America would be watching very carefully to determine what exactly the Cubans began doing in the weeks leading to the hospitalization of Fidel Castro (surely the planning was begun, and the orders for change given, weeks before the hospitalization, with the so-called public delegations coming weeks after the official delegations actually took place). And a prudent America would be monitoring Chinese communications with FAR much more intently than the polls revealing the “feelings” of the Cuban people for Raúl Castro. Sadly, for American interests, little of this will be done. The Cubans are counting on that.
Wednesday, August 09, 2006
Internationalizing the Law School Curriculum: On the Importance of Combining Law and International Relations
Internationalizing the Law School’s Mission: Expanding the Law School’s Role to Include an International Affairs Curriculum.
Increasingly in the 21st century, law schools in the United States have come to understand that their obligation to provide an education to its students that reflects current needs for research, teaching and service now require them to explore fields of instruction that would have been essentially unknown even a generation ago. As new and important fields arise, fields touching on the production and application of knowledge with tremendous effect on society, it is the duty of the University to respond. The growing importance of globalization has had an enormous effect on law making and law practice. Law is no longer confined to a state or even a nation, but now embraces institutions at the international level and transactions that routinely cross borders.
In response to these rapid developments, law schools have begun to consider the value of establishing schools or departments of international transactions or international affairs (a “DIA”). These new departments would enrich the legal curriculum by offering courses of instruction designed to prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. In some cases, law schools might even consider creating an integrated but freestanding degree-granting department. Recipients of post graduate degrees in international affairs or international; transactions would be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. The purpose of this essay is to sketch the outlines of what such a program might look like.
RATIONALE AND OBJECTIVES.
DIA will be most effective if it can avoid two great pitfalls. The first centers on the creation of a unit of graduate study that did little more than duplicate or focus substantive study in fields already offering graduate degrees at the university. DIA must do more than merely focus the substantive study offered elsewhere. The second centers on its affiliation with a law school. DIA must do more than merely serve as a basis for a focused legal postgraduate degree – a dressed up LL.M. To differentiate DIA, that is to justify its creation, DIA must offer something different from anything offered at the other units of the University. For that purpose, DIA must advance a new and distinct mode of analysis. That analysis provides the basis for transforming the substantive knowledge from the other academic units of the University into policy, and from policy into action.
DIA will create an environment in which to focus on all aspects of challenges that transcend national boundaries. Today, these challenges can be global, regional or bi-lateral. Challenges touch on all aspects of human interaction; they can range from migration, to communicable diseases, to trade barriers, to corruption, to access to education, food and economic opportunity. Actors meeting those challenges are no longer just governmental; policy is now an integral part of the operation of a great constellation of non-governmental actors, ranging from organizations formed to further specific policy goals, to global religious organizations, to large multi-national corporations. In a way unique among schools in the IA field, DIA will focus on IA policy actors, actual current policy issues, the language and recognized approaches to contemporary policy analysis and the methodologies of implementation and monitoring of policy ‘as applied.’
Based on this focus on the policy actors, contemporary policy problems, forms of policy analysis and methodologies of implementation of solutions to problems with global effect, DIA will offer a course of study the principal aim of which is to provide its students with comprehensive and rigorous training sufficient to enable them to function effectively in international affairs, from the conceptualization and formulation of policy, to its implementation and monitoring. To that end, the DIA curriculum will be built upon the realities of the actual ‘business’ of international affairs in the contemporary world. That focus can be divided into four areas of study: actors, policy, tools and realization.
Actors: international affairs are not conducted in a vacuum. Since 1945, the business of international affairs has been institutionalized within a complex matrix of public and private institutions. The number of forms of public institutions has expanded significantly in the last century. Global political organization has moved from a loose set of interactions among nation-state to systems of national interdependence in which a number of new forms of other public international actors play increasingly important roles. These new actors range from loose global associations, centered on the United Nations, to overlapping bi-lateral and regional systems of economic, human rights and criminal regulation. But the greatest change in governance since 1945 has occurred in the private sector. The end of the 20th century has witnessed the institutionalization of what is now recognized as international civil society. This is made up of countless groups organized in a variety of different ways to further all forms of policy objectives. These groups now play an increasingly important role in shaping policy. They play an even more important role in monitoring the implementation of policy. Thus, a basic understanding of the actors involved in the discourse of issues that require multi-national responses is essential for individuals involved in international affairs.
Policy: International affairs are expressed in policy terms. Policy expresses the substance of international affairs. Policy is an elastic concept embracing laws, rules, actions, plans and behaviors, as well as their social and legislative ramifications. It can be expressed as the things public entities choose to do (e.g., to build a dam to generate power) or not do (e.g., not to build a dam to preserve the environment). It can also be understood as a product of the collective effect of the conscious choices of private entities (e.g., to standardize scientific terminology). And it can include rules or understandings resulting from the action or lack of action of individual private actors (e.g., standardization of letters of credit). Policy is given life through the actions of actors through which it is formulated, implemented, and monitored. It is the language of substantive discourse of actors in the international affairs field.
Tools: Policy does not appear unbidden. Policy does not sell itself to actors in international the public and private spheres of institutional society. Policy must be conceived, formulated, explained, justified, defended and advanced. Each of these functions requires certain analytic tools. These tools are drawn from a variety of disciplines: economics, sociology, politics, philosophy, psychology, mathematics, linguistics, quantitative analysis and empirical methods (e.g., econometrics), law, and business. Each provides a means of systematically evaluating alternative means of conceiving, developing, and achieving social goals. These tools supply a common language for policy choices among actors; they supply a mechanics for valuing choices among policy options. An ability to understand and use analytic tools is essential to the development of policy and the steering of policy to implementation.
Realization: The object of policy is implementation. Policies unrealized are goals unrealized and good undone. Taking policy from conceptualization to adoption represents one of the great tasks and serves as one of the great rewards of policy actors. Realization of policy does not happen by itself. It requires navigating complex, multi-state and multi-level systems of governance. It may require action among private actors as well as more formal action in the public sphere. There are systems, and systematic approaches, to policy realization. It requires an understanding of systems and politics, of law and psychology. Moreover, approaches to implementation may differ substantially from approaches to monitoring implemented policy, or seeking policy change. Approaches will also differ depending on the place of the actor within the systems of public and private actors involved in policy decision-making. A critical understanding of these complexities is essential to those who intend to further policy objectives.
VISION STATEMENT
The rationale and objectives of a school of international affairs, as outlined above, provides a basis for developing a vision statement for such an enterprise. A vision statement for a school of international affairs could read something like this:
• DIA will be a leading institution for defining and strengthening the field of international affairs (IA) in the academic community worldwide.
• DIA will craft a uniquely focused program which will help define what the outstanding IA program should look like and strive to be ranked as one of the best (if not the best) programs across the IA field.
• To that end, the initial connection between DIA and the law school will provide the foundation for the implementation of DIA’s unique mission.
• DIA will be known for conducting boundary-pushing, multi- and interdisciplinary research focused on the integration of the key constructs of international or cross border affairs—key public and private institutional actors developing, advocating, implementing and monitoring policy—that crosses disciplinary boundaries and links theory with application.
• DIA will be a community of scholars who will provide a climate for unique learning in and outside of the classroom and through which DIA will help mold the IA leaders for this century.
MISSION STATEMENT
The School of International Affairs will prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. As a top IA program, DIA will seek to improve the lives of people through high quality teaching and learning, internationally recognized research and outreach, and associations with leading IA global institutions. DIA degree holders will be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. DIA will offer a rigorous program of professional education founded on a multi-disciplinary approach to the training of its students. DIA will integrate the great strengths of any research university in the liberal arts, sciences, engineering, business, information technology, communications and law to train students in the application of theory and substantive analysis to practical issues in international affairs. To that end, DIA will serve as the academic unit where the knowledge derived from the substantive fields of study at a research university is cast into policy terms, transformed into rules, and applied by institutional and other actors into action that directly affect the lives of people and institutions.
DIA will emphasize the following:
• DIA will be an asset for the region by serving as a center of expertise in an increasingly important area for the production of knowledge;
• DIA will enable and foster interdisciplinary collaboration in international affairs, focusing on policy, analysis and application across the University;
• DIA will build an organization that insists on respect for individual and intellectual diversity that defines the interdisciplinary vision demands from DIA’s faculty, staff, and students;
• DIA will create a broad based set of curricula that shares a commitment to the global perspectives of education, drawing especially upon existing strengths and curricular elements already in place in the School of Law and across the wider university;
• DIA will encourage the expansion of our faculty research and presence through international involvement including conferences, joint research projects, and sabbatical placements;
• DIA will encourage active and collaborative learning through the use of on-line and in-class technologies as well as cutting-edge pedagogies such as problem-based learning models of teaching and learning;
• DIA will enable partnerships with business, industry, government, and other educational institutions; and
• DIA will use information technology to increase accessibility to the IA curricula across the university and around the world through programs of sharing alone and in partnership with other related academic enterprises.
REALIZING THE MISSION/VISION: AN EXAMPLE OF A POSSIBLE CORE CURRICULUM
The core curriculum should reflect this understanding of the framework for international affairs. On this basis a core curriculum will be created consisting of the following year long courses as the foundation of any program of study in DIA. Each course described below would likely be a new course.
1. Introduction to Actors in Institutional Affairs (2 semesters). This course is designed to introduce students to the principal actors in international affairs as well as to the frameworks within which they operate. The first semester should be devoted to a study of public actors: the nation state and its subordinate divisions (e.g., U.S. states, German Lander); transnational and regional associations (e.g., NAFTA, MEROSUR, EU); international organizations (UN); and other international or transnational actors (e.g., WTO, ICC). The second semester should focus on a study of private actors, and the construction and operation of global civil society, including public/private cooperative arrangements (e.g., OEDC), institutionalized non-governmental organizations (e.g., Amnesty International) and other expressions of collective civil society. The objective of this course is to provide the student with a comprehensive understanding of the principal actors involved in the production and consumption of policy. The focus in this course will be on law and political science, with additional contributions from other disciplines.
2. Introduction to Current Policy Challenges (2 semesters). Provide the students with a comprehensive introduction to those areas of policy that form the basis of the current discussion within international affairs. This course is the most flexible and interdisciplinary of the core curriculum. This should be designed as a ‘topics’ course, with the topics changing from time to time to reflect the most significant policy issues of the day. Initially we might focus on the Copenhagen Consensus international policy challenges: (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers. But there are a number of other choices available. By the end of this course, the student should have a working knowledge of all of the most important contemporary areas of policy activity.
3. Analytical Methods (2 semesters). Provide the student with the tools to conceptualize, formulate, analyze, adopt, implement, and monitor policy through rigorous application of recognized modes of analysis. One semester should be devoted to qualitative methods. These may include theories of bargaining and negotiation, game theory, decision analysis and methodologies for making choices where the analysis must account for complexity and uncertainty. The other semester should be devoted to an introduction to quantitative analysis and empirical methods. These may include basic statistical methods, econometrics, experimental design and data analysis. The purpose of the course is not to achieve mastery but to provide the foundations for more advanced work in upper level courses offered in the second year.
4. Implementation (1 semester). The basic purpose of this course is to prepare students to become effective leaders in any organization involved in international affairs. The students will be introduced to organization theory, systems theory, sociology and organizational psychology, as well as the legal framework of organizational functioning. Through readings and problems or case studies, students will learn to understand formal and informal structures of organizations and to navigate within it to further policy objectives and to anticipate reactions and consequences of actions both within and outside organizational structure. To a great extent, this is course should be conceived as a practicum: how to get things done.
5. Economic Analysis (1 semester). In addition to the four basic courses, the core curriculum might also include an introduction to economic theories. The emphasis should be on contemporary microeconomic theory. But substantial time should be devoted to introducing students to alternative theories of economic relationships. Since much policy difference can be ascribed to the embrace of fundamentally different and incompatible assumptions about economic behavior, knowledge of these differences will be critical for developing analytical skills.
6. Additional Requirements:
a. Language. Every student will be required to demonstrate proficiency in at least one language other than English. Students may demonstrate this proficiency at any time prior to the award of the degree sought through examination. Students without a sufficient level of language skill will be expected to enroll in such courses as may be necessary to fulfill this requirement.
b. Legal Foundations of International Affairs (2 semesters no grade, credit only). This course will realize the great synergies of international affairs within any law school. Its purpose is to provide a foundation, in law, for understanding the operation and limits of global systems of formal and informal governance. The course will introduce students to the basics of international law, transnational law, the law of non-governmental actors, and comparative law. The objective is to ensure that students understand the foundations, vocabulary and principles of the law underlying the study of international affairs.
b. Ethics (credit, no grade). This course is meant to complete the student’s introduction to foundational issues in international affairs. While the “Legal Foundations” course introduces students to formal and informal substantive organizational law, this ethics module will introduce students to appropriate behavioral norms in formulating, analyzing, advocating, implementing and monitoring policy. The course will consist of a series of lectures and modules that focus on the ethical issues derived from material covered in the core curriculum.
BEYOND THE CORE: DEGREE CONCENTRATIONS
The interdisciplinary and cooperative potential of DIA will be realized beyond the core curriculum. The objective would be to combine this core training with specialized study in one or more areas. The curriculum also might draw upon regional or cultural subspecialties and language training.”
All candidates for the Master’s degree will be expected to select an area of concentration (AC). ACs should reflect the evolving emphases of policy makers and the interests of our students. Most will be identified as the substance of the evolving core course Introduction to Current Policy Challenges. Because of the rich diversity of course offerings typically offered at research university, for example, DIA Master’s candidates would have a large selection of ACs. However, the focus of DIA will be on the creation of a integrated set of course offering drawn from all other academic units within the university as appropriate. The DIA will provide a number of integrated AC courses of study to help guide candidates and to draw on the particular strengths of the university.
Drawing on the wealth of substantive, analytic, theoretical and professional courses already offered in the University, DIA will be able to offer its students the possibilities to choose an emphasis to meet virtually any interest—from geography, to information technology, to agriculture, law, journalism, the social sciences, education, mathematics, the hard sciences or any other substantive field. A list of courses throughout the University curriculum appropriate for cross listing is set forth in Appendix D.
Suggested Specific Areas of Concentration (“ACs”): Potential ACs are meant to be extremely flexible and multidisciplinary. Fields of study may include:
-Public international law
-International business and economic law
-International organizations
-Law and development
-International monetary policy
-International trade and commercial policies
-Political systems and theory
-Development economics
-Political economy
-Security
-Foreign direct investment
-International environmental issues, policy and governance
-Information and communication
-International negotiations and conflict resolution
-Geographic specialties
-Policy specialties (e.g., (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers).
The specific courses suggested for completing each of these concentrations, of course, would have to be developed at every institution. Once developed, students will also be encouraged to develop their own specialization based on their needs and desires.
Programs of concentration will be adopted in close cooperation with DIA core and affiliate faculty, who will act as program of study advisors to DIA Master’s students.
ACCREDITATION
This proposal has certain implications for accreditation, but none for certification, or licensure. Accreditation may be obtained through a professional organization—the Association of Professional Schools of International Affairs (“APDIA”), information available at http://www.apDIA.org/apDIA/index.php. APDIA “comprises 29 member schools in the United States, ADIA and Europe dedicated to the improvement of professional education in international affairs and the advancement thereby of international understanding, prosperity, peace, and security. APDIA members work to promote excellence in professional, international affairs education worldwide by sharing information and ideas among member schools and with other higher education institutions, the international affairs community, and the general public.” Membership in APDIA is not required for the DIA to commence operation but is highly desirable and may be obtained after DIA begins operation.
Membership in APDIA requires conformity to a number of requirements. See APDIA membership qualifications available at http://www.apDIA.org/apDIA/membership/membership.php. These include the following: (a) an educational program of high academic quality; (b) a substantial and demonstrated commitment to the study of international affairs; (c) a basic commitment to graduate professional training; and (d) significant autonomy within a major university, e.g., as one would expect to find with a Law School or graduate Business School. These criteria can be demonstrated in a variety of ways. DIA is confident that it can demonstrate the existence of qualifications sufficient to afford it membership in APDIA. The APDIA describes these as follows:
The existence of these qualifications may be demonstrated by the following: a) significant programs of research and publications in international affairs; b) an integrated curriculum comprised of courses for the most part, if not exclusively, developed and located in the professional international affairs school; c) an integrated curriculum which combines professional training, the study of geographical regions, and the analytical tools of specialized disciplines; d) a record of educating graduates for and in cooperation with distinctive clienteles, including international affairs agencies, international business and financial corporations, international organizations, and the communications and academic professions; e) a substantial, if not exclusive, commitment to professionally oriented graduate education; f) a faculty for the most part integral to or designated for the professional school; g) a relationship to the parent university characterized by substantial autonomy as is usual to a professional school within higher education; h) programs abroad, including exchange and affiliation arrangements.” See http://www.apDIA.org/apDIA/membership/membership.php.
CONCLUDING STATEMENT
Internationalization of the legal curriculum is inevitable. Many law schools have already begun to respond to this change in the environment in which lawyers must be trained. On the academic side, research that remains tied to a particular local will be marginalized as increasingly parochial in the coming decades. There are several possible responses to legal internationalization. I have suggested one approach that I believe will pay significant dividends to law schools, the university of which they are part, and their faculty and students.
Increasingly in the 21st century, law schools in the United States have come to understand that their obligation to provide an education to its students that reflects current needs for research, teaching and service now require them to explore fields of instruction that would have been essentially unknown even a generation ago. As new and important fields arise, fields touching on the production and application of knowledge with tremendous effect on society, it is the duty of the University to respond. The growing importance of globalization has had an enormous effect on law making and law practice. Law is no longer confined to a state or even a nation, but now embraces institutions at the international level and transactions that routinely cross borders.
In response to these rapid developments, law schools have begun to consider the value of establishing schools or departments of international transactions or international affairs (a “DIA”). These new departments would enrich the legal curriculum by offering courses of instruction designed to prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. In some cases, law schools might even consider creating an integrated but freestanding degree-granting department. Recipients of post graduate degrees in international affairs or international; transactions would be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. The purpose of this essay is to sketch the outlines of what such a program might look like.
RATIONALE AND OBJECTIVES.
DIA will be most effective if it can avoid two great pitfalls. The first centers on the creation of a unit of graduate study that did little more than duplicate or focus substantive study in fields already offering graduate degrees at the university. DIA must do more than merely focus the substantive study offered elsewhere. The second centers on its affiliation with a law school. DIA must do more than merely serve as a basis for a focused legal postgraduate degree – a dressed up LL.M. To differentiate DIA, that is to justify its creation, DIA must offer something different from anything offered at the other units of the University. For that purpose, DIA must advance a new and distinct mode of analysis. That analysis provides the basis for transforming the substantive knowledge from the other academic units of the University into policy, and from policy into action.
DIA will create an environment in which to focus on all aspects of challenges that transcend national boundaries. Today, these challenges can be global, regional or bi-lateral. Challenges touch on all aspects of human interaction; they can range from migration, to communicable diseases, to trade barriers, to corruption, to access to education, food and economic opportunity. Actors meeting those challenges are no longer just governmental; policy is now an integral part of the operation of a great constellation of non-governmental actors, ranging from organizations formed to further specific policy goals, to global religious organizations, to large multi-national corporations. In a way unique among schools in the IA field, DIA will focus on IA policy actors, actual current policy issues, the language and recognized approaches to contemporary policy analysis and the methodologies of implementation and monitoring of policy ‘as applied.’
Based on this focus on the policy actors, contemporary policy problems, forms of policy analysis and methodologies of implementation of solutions to problems with global effect, DIA will offer a course of study the principal aim of which is to provide its students with comprehensive and rigorous training sufficient to enable them to function effectively in international affairs, from the conceptualization and formulation of policy, to its implementation and monitoring. To that end, the DIA curriculum will be built upon the realities of the actual ‘business’ of international affairs in the contemporary world. That focus can be divided into four areas of study: actors, policy, tools and realization.
Actors: international affairs are not conducted in a vacuum. Since 1945, the business of international affairs has been institutionalized within a complex matrix of public and private institutions. The number of forms of public institutions has expanded significantly in the last century. Global political organization has moved from a loose set of interactions among nation-state to systems of national interdependence in which a number of new forms of other public international actors play increasingly important roles. These new actors range from loose global associations, centered on the United Nations, to overlapping bi-lateral and regional systems of economic, human rights and criminal regulation. But the greatest change in governance since 1945 has occurred in the private sector. The end of the 20th century has witnessed the institutionalization of what is now recognized as international civil society. This is made up of countless groups organized in a variety of different ways to further all forms of policy objectives. These groups now play an increasingly important role in shaping policy. They play an even more important role in monitoring the implementation of policy. Thus, a basic understanding of the actors involved in the discourse of issues that require multi-national responses is essential for individuals involved in international affairs.
Policy: International affairs are expressed in policy terms. Policy expresses the substance of international affairs. Policy is an elastic concept embracing laws, rules, actions, plans and behaviors, as well as their social and legislative ramifications. It can be expressed as the things public entities choose to do (e.g., to build a dam to generate power) or not do (e.g., not to build a dam to preserve the environment). It can also be understood as a product of the collective effect of the conscious choices of private entities (e.g., to standardize scientific terminology). And it can include rules or understandings resulting from the action or lack of action of individual private actors (e.g., standardization of letters of credit). Policy is given life through the actions of actors through which it is formulated, implemented, and monitored. It is the language of substantive discourse of actors in the international affairs field.
Tools: Policy does not appear unbidden. Policy does not sell itself to actors in international the public and private spheres of institutional society. Policy must be conceived, formulated, explained, justified, defended and advanced. Each of these functions requires certain analytic tools. These tools are drawn from a variety of disciplines: economics, sociology, politics, philosophy, psychology, mathematics, linguistics, quantitative analysis and empirical methods (e.g., econometrics), law, and business. Each provides a means of systematically evaluating alternative means of conceiving, developing, and achieving social goals. These tools supply a common language for policy choices among actors; they supply a mechanics for valuing choices among policy options. An ability to understand and use analytic tools is essential to the development of policy and the steering of policy to implementation.
Realization: The object of policy is implementation. Policies unrealized are goals unrealized and good undone. Taking policy from conceptualization to adoption represents one of the great tasks and serves as one of the great rewards of policy actors. Realization of policy does not happen by itself. It requires navigating complex, multi-state and multi-level systems of governance. It may require action among private actors as well as more formal action in the public sphere. There are systems, and systematic approaches, to policy realization. It requires an understanding of systems and politics, of law and psychology. Moreover, approaches to implementation may differ substantially from approaches to monitoring implemented policy, or seeking policy change. Approaches will also differ depending on the place of the actor within the systems of public and private actors involved in policy decision-making. A critical understanding of these complexities is essential to those who intend to further policy objectives.
VISION STATEMENT
The rationale and objectives of a school of international affairs, as outlined above, provides a basis for developing a vision statement for such an enterprise. A vision statement for a school of international affairs could read something like this:
• DIA will be a leading institution for defining and strengthening the field of international affairs (IA) in the academic community worldwide.
• DIA will craft a uniquely focused program which will help define what the outstanding IA program should look like and strive to be ranked as one of the best (if not the best) programs across the IA field.
• To that end, the initial connection between DIA and the law school will provide the foundation for the implementation of DIA’s unique mission.
• DIA will be known for conducting boundary-pushing, multi- and interdisciplinary research focused on the integration of the key constructs of international or cross border affairs—key public and private institutional actors developing, advocating, implementing and monitoring policy—that crosses disciplinary boundaries and links theory with application.
• DIA will be a community of scholars who will provide a climate for unique learning in and outside of the classroom and through which DIA will help mold the IA leaders for this century.
MISSION STATEMENT
The School of International Affairs will prepare individuals for positions of leadership in organizations that will bring global solutions to global problems. As a top IA program, DIA will seek to improve the lives of people through high quality teaching and learning, internationally recognized research and outreach, and associations with leading IA global institutions. DIA degree holders will be prepared to become highly effective participants in the formulation, analysis, advocacy, implementation and monitoring of policy in governmental or private organizations. DIA will offer a rigorous program of professional education founded on a multi-disciplinary approach to the training of its students. DIA will integrate the great strengths of any research university in the liberal arts, sciences, engineering, business, information technology, communications and law to train students in the application of theory and substantive analysis to practical issues in international affairs. To that end, DIA will serve as the academic unit where the knowledge derived from the substantive fields of study at a research university is cast into policy terms, transformed into rules, and applied by institutional and other actors into action that directly affect the lives of people and institutions.
DIA will emphasize the following:
• DIA will be an asset for the region by serving as a center of expertise in an increasingly important area for the production of knowledge;
• DIA will enable and foster interdisciplinary collaboration in international affairs, focusing on policy, analysis and application across the University;
• DIA will build an organization that insists on respect for individual and intellectual diversity that defines the interdisciplinary vision demands from DIA’s faculty, staff, and students;
• DIA will create a broad based set of curricula that shares a commitment to the global perspectives of education, drawing especially upon existing strengths and curricular elements already in place in the School of Law and across the wider university;
• DIA will encourage the expansion of our faculty research and presence through international involvement including conferences, joint research projects, and sabbatical placements;
• DIA will encourage active and collaborative learning through the use of on-line and in-class technologies as well as cutting-edge pedagogies such as problem-based learning models of teaching and learning;
• DIA will enable partnerships with business, industry, government, and other educational institutions; and
• DIA will use information technology to increase accessibility to the IA curricula across the university and around the world through programs of sharing alone and in partnership with other related academic enterprises.
REALIZING THE MISSION/VISION: AN EXAMPLE OF A POSSIBLE CORE CURRICULUM
The core curriculum should reflect this understanding of the framework for international affairs. On this basis a core curriculum will be created consisting of the following year long courses as the foundation of any program of study in DIA. Each course described below would likely be a new course.
1. Introduction to Actors in Institutional Affairs (2 semesters). This course is designed to introduce students to the principal actors in international affairs as well as to the frameworks within which they operate. The first semester should be devoted to a study of public actors: the nation state and its subordinate divisions (e.g., U.S. states, German Lander); transnational and regional associations (e.g., NAFTA, MEROSUR, EU); international organizations (UN); and other international or transnational actors (e.g., WTO, ICC). The second semester should focus on a study of private actors, and the construction and operation of global civil society, including public/private cooperative arrangements (e.g., OEDC), institutionalized non-governmental organizations (e.g., Amnesty International) and other expressions of collective civil society. The objective of this course is to provide the student with a comprehensive understanding of the principal actors involved in the production and consumption of policy. The focus in this course will be on law and political science, with additional contributions from other disciplines.
2. Introduction to Current Policy Challenges (2 semesters). Provide the students with a comprehensive introduction to those areas of policy that form the basis of the current discussion within international affairs. This course is the most flexible and interdisciplinary of the core curriculum. This should be designed as a ‘topics’ course, with the topics changing from time to time to reflect the most significant policy issues of the day. Initially we might focus on the Copenhagen Consensus international policy challenges: (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers. But there are a number of other choices available. By the end of this course, the student should have a working knowledge of all of the most important contemporary areas of policy activity.
3. Analytical Methods (2 semesters). Provide the student with the tools to conceptualize, formulate, analyze, adopt, implement, and monitor policy through rigorous application of recognized modes of analysis. One semester should be devoted to qualitative methods. These may include theories of bargaining and negotiation, game theory, decision analysis and methodologies for making choices where the analysis must account for complexity and uncertainty. The other semester should be devoted to an introduction to quantitative analysis and empirical methods. These may include basic statistical methods, econometrics, experimental design and data analysis. The purpose of the course is not to achieve mastery but to provide the foundations for more advanced work in upper level courses offered in the second year.
4. Implementation (1 semester). The basic purpose of this course is to prepare students to become effective leaders in any organization involved in international affairs. The students will be introduced to organization theory, systems theory, sociology and organizational psychology, as well as the legal framework of organizational functioning. Through readings and problems or case studies, students will learn to understand formal and informal structures of organizations and to navigate within it to further policy objectives and to anticipate reactions and consequences of actions both within and outside organizational structure. To a great extent, this is course should be conceived as a practicum: how to get things done.
5. Economic Analysis (1 semester). In addition to the four basic courses, the core curriculum might also include an introduction to economic theories. The emphasis should be on contemporary microeconomic theory. But substantial time should be devoted to introducing students to alternative theories of economic relationships. Since much policy difference can be ascribed to the embrace of fundamentally different and incompatible assumptions about economic behavior, knowledge of these differences will be critical for developing analytical skills.
6. Additional Requirements:
a. Language. Every student will be required to demonstrate proficiency in at least one language other than English. Students may demonstrate this proficiency at any time prior to the award of the degree sought through examination. Students without a sufficient level of language skill will be expected to enroll in such courses as may be necessary to fulfill this requirement.
b. Legal Foundations of International Affairs (2 semesters no grade, credit only). This course will realize the great synergies of international affairs within any law school. Its purpose is to provide a foundation, in law, for understanding the operation and limits of global systems of formal and informal governance. The course will introduce students to the basics of international law, transnational law, the law of non-governmental actors, and comparative law. The objective is to ensure that students understand the foundations, vocabulary and principles of the law underlying the study of international affairs.
b. Ethics (credit, no grade). This course is meant to complete the student’s introduction to foundational issues in international affairs. While the “Legal Foundations” course introduces students to formal and informal substantive organizational law, this ethics module will introduce students to appropriate behavioral norms in formulating, analyzing, advocating, implementing and monitoring policy. The course will consist of a series of lectures and modules that focus on the ethical issues derived from material covered in the core curriculum.
BEYOND THE CORE: DEGREE CONCENTRATIONS
The interdisciplinary and cooperative potential of DIA will be realized beyond the core curriculum. The objective would be to combine this core training with specialized study in one or more areas. The curriculum also might draw upon regional or cultural subspecialties and language training.”
All candidates for the Master’s degree will be expected to select an area of concentration (AC). ACs should reflect the evolving emphases of policy makers and the interests of our students. Most will be identified as the substance of the evolving core course Introduction to Current Policy Challenges. Because of the rich diversity of course offerings typically offered at research university, for example, DIA Master’s candidates would have a large selection of ACs. However, the focus of DIA will be on the creation of a integrated set of course offering drawn from all other academic units within the university as appropriate. The DIA will provide a number of integrated AC courses of study to help guide candidates and to draw on the particular strengths of the university.
Drawing on the wealth of substantive, analytic, theoretical and professional courses already offered in the University, DIA will be able to offer its students the possibilities to choose an emphasis to meet virtually any interest—from geography, to information technology, to agriculture, law, journalism, the social sciences, education, mathematics, the hard sciences or any other substantive field. A list of courses throughout the University curriculum appropriate for cross listing is set forth in Appendix D.
Suggested Specific Areas of Concentration (“ACs”): Potential ACs are meant to be extremely flexible and multidisciplinary. Fields of study may include:
-Public international law
-International business and economic law
-International organizations
-Law and development
-International monetary policy
-International trade and commercial policies
-Political systems and theory
-Development economics
-Political economy
-Security
-Foreign direct investment
-International environmental issues, policy and governance
-Information and communication
-International negotiations and conflict resolution
-Geographic specialties
-Policy specialties (e.g., (1) climate change; (2) communicable diseases; (3) conflicts and arms proliferation; (4) access to education; (5) financial instability; (6) governance and corruption; (7) malnutrition and hunger; (8) migration; (9) sanitation and access to clean water; and (10) subsidies and trade barriers).
The specific courses suggested for completing each of these concentrations, of course, would have to be developed at every institution. Once developed, students will also be encouraged to develop their own specialization based on their needs and desires.
Programs of concentration will be adopted in close cooperation with DIA core and affiliate faculty, who will act as program of study advisors to DIA Master’s students.
ACCREDITATION
This proposal has certain implications for accreditation, but none for certification, or licensure. Accreditation may be obtained through a professional organization—the Association of Professional Schools of International Affairs (“APDIA”), information available at http://www.apDIA.org/apDIA/index.php. APDIA “comprises 29 member schools in the United States, ADIA and Europe dedicated to the improvement of professional education in international affairs and the advancement thereby of international understanding, prosperity, peace, and security. APDIA members work to promote excellence in professional, international affairs education worldwide by sharing information and ideas among member schools and with other higher education institutions, the international affairs community, and the general public.” Membership in APDIA is not required for the DIA to commence operation but is highly desirable and may be obtained after DIA begins operation.
Membership in APDIA requires conformity to a number of requirements. See APDIA membership qualifications available at http://www.apDIA.org/apDIA/membership/membership.php. These include the following: (a) an educational program of high academic quality; (b) a substantial and demonstrated commitment to the study of international affairs; (c) a basic commitment to graduate professional training; and (d) significant autonomy within a major university, e.g., as one would expect to find with a Law School or graduate Business School. These criteria can be demonstrated in a variety of ways. DIA is confident that it can demonstrate the existence of qualifications sufficient to afford it membership in APDIA. The APDIA describes these as follows:
The existence of these qualifications may be demonstrated by the following: a) significant programs of research and publications in international affairs; b) an integrated curriculum comprised of courses for the most part, if not exclusively, developed and located in the professional international affairs school; c) an integrated curriculum which combines professional training, the study of geographical regions, and the analytical tools of specialized disciplines; d) a record of educating graduates for and in cooperation with distinctive clienteles, including international affairs agencies, international business and financial corporations, international organizations, and the communications and academic professions; e) a substantial, if not exclusive, commitment to professionally oriented graduate education; f) a faculty for the most part integral to or designated for the professional school; g) a relationship to the parent university characterized by substantial autonomy as is usual to a professional school within higher education; h) programs abroad, including exchange and affiliation arrangements.” See http://www.apDIA.org/apDIA/membership/membership.php.
CONCLUDING STATEMENT
Internationalization of the legal curriculum is inevitable. Many law schools have already begun to respond to this change in the environment in which lawyers must be trained. On the academic side, research that remains tied to a particular local will be marginalized as increasingly parochial in the coming decades. There are several possible responses to legal internationalization. I have suggested one approach that I believe will pay significant dividends to law schools, the university of which they are part, and their faculty and students.
Monday, August 07, 2006
The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War
The Devil’s Advocate: The West, the Invincible Guerilla, the Value of Violence and the Rise of a Management Model of War
The last several weeks of warfare between Israel, on the one hand, and the Hezbollah coalition on the other hand (Lebanon, Syria, and Iran) has been of greatest value for the way in which it has exposed the core assumptions, normative framework, and patterns of logic of Western governments and the elites which claim a power to shape (or represent) democratic public opinion. The purpose of this essay is to explore the character and consequences of those assumptions, frameworks and patterns of logic by carefully parsing through a recent and representative editorial appearing in the New York Times (“A Truce for Lebanon,” The New York Times, August 7, 2006, at A20). This newspaper and this editorial were chosen as representative of something close to the center of Western norms (the New York Times is seen by many as politically liberal in the United States, and politically conservative outside the United States).
The purpose of this essay is not to advocate a particular political position or even a particular political result. The essay is grounded in an indifference to the outcome. But the process by which outcomes are generated, by which choices are made among parties to a dispute, and the way policy is shaped, reveals the way in which certain assumptions—really certain ideologies—tend to color the perception of any conflict and substantially affect the way in which the West (in this instance) responds to organized violence, and especially organized violence by non-governmental entities. The editorial serves as a reflection not only of the way in which the West judges this particular conflict (Israel-Hezbollah-Lebanon-Syria-Iran) but the way it has approached other conflicts it has deemed to be similar (Ireland-Basque Country-Bosnia-Kosovo-Chechnya-Iraq). It evidences the strange combination of fatalism and a merchant’s mentality, of power and impotence, and of formalism and legalism, that has defined Western policy making for the last several decades. This essay will sketch the contours of this framework through a close analysis of the editorial “A Truce for Lebanon” and suggest that while these assumptions are perhaps as good as any, they are neither inevitable nor necessarily effective.
The editorial starts with a slew of assumptions masquerading as statements of fact or as adjective laden description:
“It is now 26 days since Hezbollah and Israel began their latest combat—a very long time for the world to allow such a deadly conflict to rage in the Middle East powder keg. Yet the fighting still continues. Diplomats still dither over cease fire details. Innocent people still keep dying.”
“Enough. This is the week that the international community must impose a truce, to be followed, in short order, by a political settlement and the dispatch of a robust international force to patrol Lebanon’s oft violated border with Israel.”
The editorial then describes the nature of the settlement being negotiated for the combatants through the United Nations organized in two sets of resolutions.
“The first, based on an agreement over the weekend between the United States and France, would call on both sides to stop fighting, with their forces, at least for now, remaining in place. The resolution would also outline steps for achieving a permanent cease fire along with a more lasting political settlement. For now, the truce would be monitored by a beefed up version of the weak United Nations monitoring force already present in south Lebanon.”
“The second resolution, meant to follow in two to three weeks, would fill in the details of the political settlement, to be worked out in consultation with Israel, Lebanon and Syria, and would authorize the long tem international force.”
Well, that seems simple enough. But the editorial notes four difficulties which it styles “crucial details” that “remain to be worked out.”
1. Israeli forces remain on Lebanese soil until the new international force is deployed. This is a problem because it “has sparked sharp opposition in the Arab world.” In addition, it is bad because Israeli troops on Lebanese soil act as a “magnet for renewed Hezbollah attacks. Israel would, of course, respond, and that would be the end of any truce.”
2. The political settlement to be worked out must be “comprehensive” and “lasting.” The editorial identifies “such festering issues as Hezbollah’s refusal to heed U.N. requests to disarm, and Hezbollah’s claim, contrary to U.N. findings, that some of the Israeli-occupied Golan Heights is not part of Syria.”
3. “Troops must be lined up for the international security force.” But there is a rub of sorts. No nation will send troops to a combat area. So the area must be made combat free before military personnel will be committed. “None of these countries want to send soldiers if either Israel or Hezbollah is going to keep shooting. Therefore the political settlement has to be packaged so that both sides can claim some sort of victory.”
4. The last difficulty is describing the sort of settlement that might permit Israel and Hezbollah to claim a victory of sorts. For Israel, “that must include some assurance that Hezbollah will no longer be able to cross into Israeli territory and kidnap Israeli soldiers or launch its rockets against Israeli towns and cities. Hezbollah will probably claim victory from the fact of having stood up to a four week onslaught by the region’s mightiest army.”
Having offered no solution to these crucial issues, but apparently with every confidence that all can be resolved in a robust and effective way, the editorial concludes on a high note of sorts.
“This ugly war has already killed about 700 Lebanese and more than 90 Israelis. Close to one out of every four people in Lebanon has been routed from their homes. With the human price so high, this settlement must be built to last.”
Wow. So sure. So commanding. So clear. So simple. But when these statements are more carefully parsed they reveal a complexity and ambiguity far greater than the string of simple declarative sentences might suggest.
1. War is a transaction that must be carefully managed. The West now has a model for an ideal war—the war against Serbia for the liberation of Kosovo in the 1990s. That war was fought at a distance. It required little exposure to combat for the combatants. It sought to inflict tremendous physical destruction while managing casualties among the civilian population, that is, among the population that would have to survive in place after the end of the conflict. Killing by state actors is to be discouraged in war. Even those who “lose” the war might not be killed, They are better treated as criminals who ought to be captured and tried for the edification of the victors. The trial of Slobodan Milosevich provides the model. Targeted destruction, intense action over a short period of time, a focus on a state actor, and the imposition of a settlement appear to provide the outlines of a “legal” or at least close to ideal war. Deviation from this model becomes extremely costly for state actors—from Israel, to Sri Lanka, or the United States in Iraq. It is in this light that the nature of the condemnation implicit in the editorial can be understood: “It is now 26 days since Hezbollah and Israel began their latest combat,” “innocent people keep dying,” “this ugly war has killed about 700 Lebanese and more than 90 Israelis,” “one out of every four people in Lebanon have been routed from their homes.” War is not the problem, the management of the war is the issue for the West.
2. Violence is a necessary predicate to negotiation, especially for non-governmental organizations. Non-governmental organizations do best when they are capable of mounting some sort of sustained military operation. This is an old principle. Ironically enough, it was first successfully deployed in modern times was in North America, when the American colonists engaged in a primitive sort of guerilla war (for which Americans remain justifiably proud) that eventually brought a positive settlement of their conflict with the United Kingdom upon the intervention of France. The de-colonization movements in Latin America in the 19th century, and in Asia and Africa after 1945 also seemed to deepen this pattern. This was a key element of the IRA’s successful campaigns in the north of Ireland (see my Jerry Adams in Barcelona essay, ). The assumption implicit in the editorial appears to be that any combat that cannot be managed (see assumption 1 above) produces legitimacy in the group that cannot be managed sufficient to compel negotiation. Negotiation thus is a means by which conflict that deviates from the ideal may be managed further, a sort of second step in the rules of conflict. In this case, Israel’s inability to destroy Hezbollah within the time allotted and in the manner permitted must lead to the second stage—negotiation. The same rules, of course, apply to the United States in Iraq, Indonesia in East Timor, and to Sri Lank and the Tamils. The rule applies irrespective of ideology, underlying grievance, or unique history leading to the conflict.
3. Violence is a necessary predicate for legitimacy for non-governmental organizations. Just as violence is a necessary predicate to negotiation, so it appears to be a necessary predicate to legitimacy. Not so many months ago Hezbollah was vilified as a terrorist organization. Now, the Western media views it as a a significant and legitimate political player, as long as “Hezbollah’s refusal to heed U.N. requests to disarm” are eventually addressed. This is also a pattern well known in the West. Not only with respect to the situation in Ireland, but now also with the shape of negotiations and ultimate legitimization of ETA as a political actor in the Spanish Basque region. Thus violence serves not only as a way to manage conflict (principle 1 above) through negotiation (principle 2 above) within the community of states, but more importantly, it serves as the principal basis for legitimating the status of non governmental or quasi governmental combatants as actors about or with which these negotiations must occur. Thus the very curious turn of the editorial. It starts with a reference to a war between a state actor and a non state organization (treating it, in a sense, like a state actor for purposes of conflict management), and then suggests that there is a place for Hezbollah within the governance of Lebanon (perhaps as a political party, like Sein Fein). Indeed, though the editorial speaks of a political settlement with Lebanon, it focuses on the need for Hezbollah to “claim a victory.” And the nature of that victory is telling, “the fact of having stood up to a four week onslaught by the region’s mightiest army.” Here is conflated the first principle on managed warfare, the second principle on the relationship between conflict and negotiation, and on this principle on violence as a predicate for legitimating of non state actors.
4. “Innocent people” do not exist in total war. I have been struck by the increasing habit of Western elites to treat the ideal of the innocent civilian as a fetish at the same time that the West has constructed an internal mythology of total war against a common foe in which an entire nation rises to fight the enemy. The management of violent conflict, and its memorialization as the rules of war and humanitarian law, is predicated on the ideal that conflict is a bifurcated affair between an active and well identified military force and a more passive civilian population ready to accept the results of any conflict in a peaceful way. I have written about the western cultural roots of this notion of the innocent civilian, the sheep, to be managed and protected while the wolves fight among themselves according to rules meant to protect the property over which they fight. Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003, . At the same time, and especially since the Second World War, the West has been filled with the images of the great resistance fighter—in France against the German army, in the Philippines and China against the Japanese aggressor. Movies were produced in the United States, for example, lauding the way in which the population of a place could rise up and work together to defeat the enemy. Civilians shield combatants and fighters against the forces of the enemy, give them aid, and supply new recruits for the war effort. Even such benign movies as “The Sound of Music” suggest the necessity for total commitment, as the nuns hide the von Trapp family from the Nazis and help the family escape into Switzerland. Indeed, after the First World War, the West came to understand war, especially war between parties with irreconcilable objects, as involving the total commitment of their respective populations. It is true that, to some extent, the laws of war and human rights law were crafted thereafter to avoid the total war scenario, but still, those images linger.
5. Non state organizations that can engage in violence cannot be defeated. Underlying the editorial is the critical assumption that Hezbollah cannot be defeated. This is an assumption that underlies much of the discussion about the insurgencies in Iraq, the conflict in Sri Lanka, in East Timor and other places. Critical to this assumption, of course, is the understanding derived from principle #4 that in an era of total war, there are no innocent civilians. The Palestinians have proven this time and time again through their not well publicized and usually “unofficial” executions of “collaborators” and others deemed insufficiently wedded to a cause. The Viet Cong were also quite effective in this sort of total warfare. Hezbollah itself has suggested, as a defense to its targeting of Israeli civilian target (including areas populated by Muslims) that there are no innocent civilians in its war with Israel). Officially the Western media rejects this line, but in its editorials the same media implicitly accepts the logic of this understanding. Where a non-state actor merges with the people in the conduct of violent conflict, the assumption is that victory is impossible. The notion of total war, and of the commitment of the non military population to the goals and objectives of conflict, and to the duty of the non military segment to provide such aid as they can to the combatants, also suggested that, short of extermination or pacification, combat in such circumstances could not be won. The specter of post colonialism also contributes to this assumption of invincibility. But now this specter is substantially uncoupled from the de colonization movements from which it arose. The West continues to seek to expiate its guilt over a colonial period and the difficulties of de colonization during the middle half of the twentieth century. But now everything smacks of the colonial. It has become common to assume that it is natural, right and inevitable for even the smallest nation to win its independence from even the mightiest empire through violent action and the less violent expression of the will of those peoples for independence. Groups seeking self-determination have become adept at invoking the imagery of post colonialism to legitimate their enterprise. It has been especially effective in suggesting that the conflict cannot be contained. Wars of liberation, wars invoking postcolonial rhetoric are conflicts translated into Western sensibilities as violence backed by the mass of non-combatants. When localized violent conflict serves as the expression of the will of the non-combatants, the conflict can neither be contained nor the group defeated. Thus, Hezbollah will win for the same reason that the Viet Cong won in Vietnam, that the African insurgency movements were successful, that ETA might win in the Spanish Basque region or that the Tamils may not be defeated, or that Iraq will not be pacified by principles of democracy and pluralism. On the other hand, the peoples of Dafur may sink into oblivion because the Sudanese state is able to manage the conflict. Hezbollah will win because it is deemed to reflect the will of the people among whom it operates and through which it derives a substantial amount of its support. Hezbollah, in a sense, is Lebanon. It will not go away. It might be disarmed, but even that is hardly a necessary condition to its make up after its conflict with Israel is managed. The editorial thus speaks of “addressing” a “refusal to heed the U.N,’s requests to disarm.” It does not speak of an obligation to disarm, or the necessity of disarming for purposes of the greater part of the settlement. The process of disarming is sufficient to claim that a long-term solution has been found. This is the Irish solution in a context in which there is no claim to territory, other than the assertion by Hezbollah, as a sort of third party combatant, to seek the eradication of one state on behalf of another. But none of this is unique. Just distorted to suit the circumstances on the ground. This is a pattern of thinking that pervades Western responses to all expressions of self-determination by armed groups. In this sense, the global network of militarily capable non-state actors with political aspirations has the right of it when they understand that once the West believes that an insurgency group has become naturalized within the territory of a state, it will be impossible to defeat. These groups cannot be defeated precisely because they make it impossible to conduct a war against them within manageable limits. And such a war becomes unmanageable because of the ambiguity between combatants and non-combatants. The only solution is negotiation. And the reward to the non state actor is a certain legitimacy to proceed to the preservation of its ultimate goals.
6. International relations is predicated on the “Munich” principle—large states, or large blocks of states may always determine the fate of small states, especially when these are perceived to affect the interests of the larger states. In an ironic twist of sorts, the ghost o Adolph Hitler, and Hitlerian international relations theory, continue to haunt the Israelis. The principles of the 1938 Munich Conference—that the fate of small states can be determined by bargaining among larger states—appears to be alive and well among the media elite. I am not making the usual and silly analogy to Munich—an analogy highlighting the folly of appeasement in certain circumstances. Instead I refer to the far more robust principle that survived Munich and became entrenched in international relations and international law to some extent—the notion that third party states may impose settlements on others. In this case, of course, the third parties including France, Lebanon’s old colonial master, the United States, Israel’s patron, and bits and pieces of the Muslim nation, all of which seem to have a claim on the territory that includes the State of Israel and some of whom stand as patrons of Hezbollah within Lebanon (but not of Lebanon itself). Thus, “the international community must impose a truce,” and the principals must be “consulted.” Since the principals are incapable of managing their conflicts in a manner acceptable to the rest of the world community, then others will undertake that management function on their behalf. That the management involves non state combatants, states that are incapable of asserting power within their territories, states with ambiguous territorial borders, and states in gestation, makes no difference. Indeed, this state of affairs may make it even more tempting to interfere. The difficulty, of course, is that while states may like to interfere in the affairs of others, they tend to like to commit their own resources to the management of those conflicts without either some great reward or the assurance of little damage. Thus, soldiers will not police a truce that does not hold and negotiation must be structures to provide the possibility for both sides to “claim some sort of victory.”
7. Political settlements are transactions that can be managed, even in the face of irreconcilable positions. This reference in the editorial to the need to find a means of permitting the parties to a violent conflict to claim victory as a predicate to the continuation of the conflict through non violent means opens the most interesting window on Western thinking when it turns to the proposed methodology of conflict management. Management comes in two stages (a typical pattern of Western thinking). In the first, the violent expression of the conflict is stopped. In the second, the bargain to be struck among the relevant parties is negotiated. The format privileges the absence of violence. It privileges process—negotiation in this case. It privileges non violent arenas for conflict—the media (naturally enough), diplomacy, cultural manipulation of subject populations, propaganda campaigns to exert pressure on other states through a direct appeal to foreign citizens to begin to conceptualize a conflict in one of any number of plausible ways. But it does not directly privilege resolution. It can’t. Resolution requires belief that parties with deeply held irreconcilable positions can somehow overcome culture, education, interest, politics and advantage to haggle over a resolution the way merchants haggle over a transaction in fungible goods. This seems natural enough from a merchant culture, like that of the United States, built on principles of exchange, negotiation, fungibility, compromise. The editorial makes the assumption, so common in the West, that irreconcilable differences can be reconciled, that deeply held religious ideas about the shape of the world and the rights of people to occupy certain portions of it can be treated as an object for negotiation. But for non-state actors, for guerilla organizations, for states with deeply held views, that sort of negotiation is impossible. For these groups, negotiation provides a breathing space. It provides a venue for the articulation of beliefs on a broader stage. It provides a means of extending the conflict to political terrain. It does not suggest a place where ultimate goals are modified in the face of the needs of other groups. The IRA and ETA understand this sort of meaning of negotiation. The West does not. Or maybe it does but is willing to live with this ambiguity because it manages to purchase management in lieu of violence. That may be enough for the West. Time, demographic shifts, the results of warfare fought in the culture, religion, social and political spheres may serve to end the conflict as effectively as a war. And there will be no physical destruction to repair, and more people to continue to utilize in the situation that emerges. All the better. The West is convinced that cold war works best—we can outlive, outspend, outbreed, outculture the opponent. That was how the Soviets were defeated, so some have come to believe. Those principles can be generalized. Thus, the editorial can support a truce that puts ending physical violence as essential the sole practical goal. Negotiation then provides the cover for engaging in warfare by other means. Negotiation management thus does not require a commitment to reconciliation. It does not require a commitment to political settlement. It requires only a willingness to divert the conflict.
8. The United Nations provides an adequate cover for cold war activities among combatants during periods in which unstable settlements remain in effect. With negotiation a goal in itself, the West tends to look to a method of managing this form of conflict containment. Thus it comes as little surprise that the editorial would reflect the assumption that a multi national force can serve as a veil behind which conflict can be managed well. For that purpose, the U.N. has served well. But it remains only a veil. In Lebanon, the U.N. provided a cover under which Hezbollah was able to build a state within a state in southern Lebanon. It provided the cover necessary for the peaceful transfer of sovereign authority from Serbia to Kosovo. The U.N. provides protection for all parties and serves to create the space necessary for the continuation of conflict by other means.
9. Peace is the new form of war. Ultimately, the editorial reveals the fundamental turn of modern international approaches to conflict—peace is the new war. Perhaps this is both a welcome and inevitable consequence of the principles of conflict management that the editorial reveals. If conflict is inevitable, if negotiation might not lead to resolution of disputes, then an alternative method of conflict might better serve to minimize the effects of conflict on the management of productive populations. In a world in which conflict resolution is impossible, and the global exploitation of labor, capital and resources becomes an increasingly important component of international relations, the deflection of violent conflict into other forms of battle becomes a paramount interest of the global community. A political settlement is hardly important. Truth, fairness, right, justice become the forms through which the battle is fought on the fields of law, religion, culture, society and politics. The ultimate aims of the combatants are also irrelevant. Hezbollah and Israel would like to see each eradicated, though in truth Hezbollah is thinking in terms of large scale murder and Israel in terms of cultural or religious obliteration. Still, those are relative exterminations to a West now committed to a different model of peace, one in which a form of amorality has become necessary to preserve the structure of wealth maximizing systems being constructed on a global scale.
Thus, the New York Times editorial presents, unconsciously to be sure, a sort of Management Model of international relations and law. Its principles are efficient. Having determined that there is no worse thing than violent conflict, this Model constructs a basis of international relations in which conflict management is set as the supreme value and everything else is bent to the need to prevent war. It is a system with a moral compass, but one very different from that usually associated with the conduct of state relations. But ironically enough, it retains a twist of social Darwinism, without regard to moral value, it ensures that the strongest will ultimately win. Strength, however, may now be measured by means other than military capability where such capability is not sufficiently powerful to blast an opposition to extinction quickly and with a minimum of fuss. The future will reveal just how well this sort of system will work and the sort of character the world will take. What is clear, however, is that, slowly but without substantial impediment, global institutions are arising to create an institutional basis for implementing this Management Model of International Relations. The United Nations system, the internationalization of criminal and human rights law, the creation of an International Criminal Court to prosecute violations of those statutes, and a framework for the global regulation of economic activity all speak to a time when management without regard to values will dominate the approach to the resolution of disputes.
The last several weeks of warfare between Israel, on the one hand, and the Hezbollah coalition on the other hand (Lebanon, Syria, and Iran) has been of greatest value for the way in which it has exposed the core assumptions, normative framework, and patterns of logic of Western governments and the elites which claim a power to shape (or represent) democratic public opinion. The purpose of this essay is to explore the character and consequences of those assumptions, frameworks and patterns of logic by carefully parsing through a recent and representative editorial appearing in the New York Times (“A Truce for Lebanon,” The New York Times, August 7, 2006, at A20). This newspaper and this editorial were chosen as representative of something close to the center of Western norms (the New York Times is seen by many as politically liberal in the United States, and politically conservative outside the United States).
The purpose of this essay is not to advocate a particular political position or even a particular political result. The essay is grounded in an indifference to the outcome. But the process by which outcomes are generated, by which choices are made among parties to a dispute, and the way policy is shaped, reveals the way in which certain assumptions—really certain ideologies—tend to color the perception of any conflict and substantially affect the way in which the West (in this instance) responds to organized violence, and especially organized violence by non-governmental entities. The editorial serves as a reflection not only of the way in which the West judges this particular conflict (Israel-Hezbollah-Lebanon-Syria-Iran) but the way it has approached other conflicts it has deemed to be similar (Ireland-Basque Country-Bosnia-Kosovo-Chechnya-Iraq). It evidences the strange combination of fatalism and a merchant’s mentality, of power and impotence, and of formalism and legalism, that has defined Western policy making for the last several decades. This essay will sketch the contours of this framework through a close analysis of the editorial “A Truce for Lebanon” and suggest that while these assumptions are perhaps as good as any, they are neither inevitable nor necessarily effective.
The editorial starts with a slew of assumptions masquerading as statements of fact or as adjective laden description:
“It is now 26 days since Hezbollah and Israel began their latest combat—a very long time for the world to allow such a deadly conflict to rage in the Middle East powder keg. Yet the fighting still continues. Diplomats still dither over cease fire details. Innocent people still keep dying.”
“Enough. This is the week that the international community must impose a truce, to be followed, in short order, by a political settlement and the dispatch of a robust international force to patrol Lebanon’s oft violated border with Israel.”
The editorial then describes the nature of the settlement being negotiated for the combatants through the United Nations organized in two sets of resolutions.
“The first, based on an agreement over the weekend between the United States and France, would call on both sides to stop fighting, with their forces, at least for now, remaining in place. The resolution would also outline steps for achieving a permanent cease fire along with a more lasting political settlement. For now, the truce would be monitored by a beefed up version of the weak United Nations monitoring force already present in south Lebanon.”
“The second resolution, meant to follow in two to three weeks, would fill in the details of the political settlement, to be worked out in consultation with Israel, Lebanon and Syria, and would authorize the long tem international force.”
Well, that seems simple enough. But the editorial notes four difficulties which it styles “crucial details” that “remain to be worked out.”
1. Israeli forces remain on Lebanese soil until the new international force is deployed. This is a problem because it “has sparked sharp opposition in the Arab world.” In addition, it is bad because Israeli troops on Lebanese soil act as a “magnet for renewed Hezbollah attacks. Israel would, of course, respond, and that would be the end of any truce.”
2. The political settlement to be worked out must be “comprehensive” and “lasting.” The editorial identifies “such festering issues as Hezbollah’s refusal to heed U.N. requests to disarm, and Hezbollah’s claim, contrary to U.N. findings, that some of the Israeli-occupied Golan Heights is not part of Syria.”
3. “Troops must be lined up for the international security force.” But there is a rub of sorts. No nation will send troops to a combat area. So the area must be made combat free before military personnel will be committed. “None of these countries want to send soldiers if either Israel or Hezbollah is going to keep shooting. Therefore the political settlement has to be packaged so that both sides can claim some sort of victory.”
4. The last difficulty is describing the sort of settlement that might permit Israel and Hezbollah to claim a victory of sorts. For Israel, “that must include some assurance that Hezbollah will no longer be able to cross into Israeli territory and kidnap Israeli soldiers or launch its rockets against Israeli towns and cities. Hezbollah will probably claim victory from the fact of having stood up to a four week onslaught by the region’s mightiest army.”
Having offered no solution to these crucial issues, but apparently with every confidence that all can be resolved in a robust and effective way, the editorial concludes on a high note of sorts.
“This ugly war has already killed about 700 Lebanese and more than 90 Israelis. Close to one out of every four people in Lebanon has been routed from their homes. With the human price so high, this settlement must be built to last.”
Wow. So sure. So commanding. So clear. So simple. But when these statements are more carefully parsed they reveal a complexity and ambiguity far greater than the string of simple declarative sentences might suggest.
1. War is a transaction that must be carefully managed. The West now has a model for an ideal war—the war against Serbia for the liberation of Kosovo in the 1990s. That war was fought at a distance. It required little exposure to combat for the combatants. It sought to inflict tremendous physical destruction while managing casualties among the civilian population, that is, among the population that would have to survive in place after the end of the conflict. Killing by state actors is to be discouraged in war. Even those who “lose” the war might not be killed, They are better treated as criminals who ought to be captured and tried for the edification of the victors. The trial of Slobodan Milosevich provides the model. Targeted destruction, intense action over a short period of time, a focus on a state actor, and the imposition of a settlement appear to provide the outlines of a “legal” or at least close to ideal war. Deviation from this model becomes extremely costly for state actors—from Israel, to Sri Lanka, or the United States in Iraq. It is in this light that the nature of the condemnation implicit in the editorial can be understood: “It is now 26 days since Hezbollah and Israel began their latest combat,” “innocent people keep dying,” “this ugly war has killed about 700 Lebanese and more than 90 Israelis,” “one out of every four people in Lebanon have been routed from their homes.” War is not the problem, the management of the war is the issue for the West.
2. Violence is a necessary predicate to negotiation, especially for non-governmental organizations. Non-governmental organizations do best when they are capable of mounting some sort of sustained military operation. This is an old principle. Ironically enough, it was first successfully deployed in modern times was in North America, when the American colonists engaged in a primitive sort of guerilla war (for which Americans remain justifiably proud) that eventually brought a positive settlement of their conflict with the United Kingdom upon the intervention of France. The de-colonization movements in Latin America in the 19th century, and in Asia and Africa after 1945 also seemed to deepen this pattern. This was a key element of the IRA’s successful campaigns in the north of Ireland (see my Jerry Adams in Barcelona essay, ). The assumption implicit in the editorial appears to be that any combat that cannot be managed (see assumption 1 above) produces legitimacy in the group that cannot be managed sufficient to compel negotiation. Negotiation thus is a means by which conflict that deviates from the ideal may be managed further, a sort of second step in the rules of conflict. In this case, Israel’s inability to destroy Hezbollah within the time allotted and in the manner permitted must lead to the second stage—negotiation. The same rules, of course, apply to the United States in Iraq, Indonesia in East Timor, and to Sri Lank and the Tamils. The rule applies irrespective of ideology, underlying grievance, or unique history leading to the conflict.
3. Violence is a necessary predicate for legitimacy for non-governmental organizations. Just as violence is a necessary predicate to negotiation, so it appears to be a necessary predicate to legitimacy. Not so many months ago Hezbollah was vilified as a terrorist organization. Now, the Western media views it as a a significant and legitimate political player, as long as “Hezbollah’s refusal to heed U.N. requests to disarm” are eventually addressed. This is also a pattern well known in the West. Not only with respect to the situation in Ireland, but now also with the shape of negotiations and ultimate legitimization of ETA as a political actor in the Spanish Basque region. Thus violence serves not only as a way to manage conflict (principle 1 above) through negotiation (principle 2 above) within the community of states, but more importantly, it serves as the principal basis for legitimating the status of non governmental or quasi governmental combatants as actors about or with which these negotiations must occur. Thus the very curious turn of the editorial. It starts with a reference to a war between a state actor and a non state organization (treating it, in a sense, like a state actor for purposes of conflict management), and then suggests that there is a place for Hezbollah within the governance of Lebanon (perhaps as a political party, like Sein Fein). Indeed, though the editorial speaks of a political settlement with Lebanon, it focuses on the need for Hezbollah to “claim a victory.” And the nature of that victory is telling, “the fact of having stood up to a four week onslaught by the region’s mightiest army.” Here is conflated the first principle on managed warfare, the second principle on the relationship between conflict and negotiation, and on this principle on violence as a predicate for legitimating of non state actors.
4. “Innocent people” do not exist in total war. I have been struck by the increasing habit of Western elites to treat the ideal of the innocent civilian as a fetish at the same time that the West has constructed an internal mythology of total war against a common foe in which an entire nation rises to fight the enemy. The management of violent conflict, and its memorialization as the rules of war and humanitarian law, is predicated on the ideal that conflict is a bifurcated affair between an active and well identified military force and a more passive civilian population ready to accept the results of any conflict in a peaceful way. I have written about the western cultural roots of this notion of the innocent civilian, the sheep, to be managed and protected while the wolves fight among themselves according to rules meant to protect the property over which they fight. Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review, Vol. 21, No. 3, pp. 509-567, 2003, . At the same time, and especially since the Second World War, the West has been filled with the images of the great resistance fighter—in France against the German army, in the Philippines and China against the Japanese aggressor. Movies were produced in the United States, for example, lauding the way in which the population of a place could rise up and work together to defeat the enemy. Civilians shield combatants and fighters against the forces of the enemy, give them aid, and supply new recruits for the war effort. Even such benign movies as “The Sound of Music” suggest the necessity for total commitment, as the nuns hide the von Trapp family from the Nazis and help the family escape into Switzerland. Indeed, after the First World War, the West came to understand war, especially war between parties with irreconcilable objects, as involving the total commitment of their respective populations. It is true that, to some extent, the laws of war and human rights law were crafted thereafter to avoid the total war scenario, but still, those images linger.
5. Non state organizations that can engage in violence cannot be defeated. Underlying the editorial is the critical assumption that Hezbollah cannot be defeated. This is an assumption that underlies much of the discussion about the insurgencies in Iraq, the conflict in Sri Lanka, in East Timor and other places. Critical to this assumption, of course, is the understanding derived from principle #4 that in an era of total war, there are no innocent civilians. The Palestinians have proven this time and time again through their not well publicized and usually “unofficial” executions of “collaborators” and others deemed insufficiently wedded to a cause. The Viet Cong were also quite effective in this sort of total warfare. Hezbollah itself has suggested, as a defense to its targeting of Israeli civilian target (including areas populated by Muslims) that there are no innocent civilians in its war with Israel). Officially the Western media rejects this line, but in its editorials the same media implicitly accepts the logic of this understanding. Where a non-state actor merges with the people in the conduct of violent conflict, the assumption is that victory is impossible. The notion of total war, and of the commitment of the non military population to the goals and objectives of conflict, and to the duty of the non military segment to provide such aid as they can to the combatants, also suggested that, short of extermination or pacification, combat in such circumstances could not be won. The specter of post colonialism also contributes to this assumption of invincibility. But now this specter is substantially uncoupled from the de colonization movements from which it arose. The West continues to seek to expiate its guilt over a colonial period and the difficulties of de colonization during the middle half of the twentieth century. But now everything smacks of the colonial. It has become common to assume that it is natural, right and inevitable for even the smallest nation to win its independence from even the mightiest empire through violent action and the less violent expression of the will of those peoples for independence. Groups seeking self-determination have become adept at invoking the imagery of post colonialism to legitimate their enterprise. It has been especially effective in suggesting that the conflict cannot be contained. Wars of liberation, wars invoking postcolonial rhetoric are conflicts translated into Western sensibilities as violence backed by the mass of non-combatants. When localized violent conflict serves as the expression of the will of the non-combatants, the conflict can neither be contained nor the group defeated. Thus, Hezbollah will win for the same reason that the Viet Cong won in Vietnam, that the African insurgency movements were successful, that ETA might win in the Spanish Basque region or that the Tamils may not be defeated, or that Iraq will not be pacified by principles of democracy and pluralism. On the other hand, the peoples of Dafur may sink into oblivion because the Sudanese state is able to manage the conflict. Hezbollah will win because it is deemed to reflect the will of the people among whom it operates and through which it derives a substantial amount of its support. Hezbollah, in a sense, is Lebanon. It will not go away. It might be disarmed, but even that is hardly a necessary condition to its make up after its conflict with Israel is managed. The editorial thus speaks of “addressing” a “refusal to heed the U.N,’s requests to disarm.” It does not speak of an obligation to disarm, or the necessity of disarming for purposes of the greater part of the settlement. The process of disarming is sufficient to claim that a long-term solution has been found. This is the Irish solution in a context in which there is no claim to territory, other than the assertion by Hezbollah, as a sort of third party combatant, to seek the eradication of one state on behalf of another. But none of this is unique. Just distorted to suit the circumstances on the ground. This is a pattern of thinking that pervades Western responses to all expressions of self-determination by armed groups. In this sense, the global network of militarily capable non-state actors with political aspirations has the right of it when they understand that once the West believes that an insurgency group has become naturalized within the territory of a state, it will be impossible to defeat. These groups cannot be defeated precisely because they make it impossible to conduct a war against them within manageable limits. And such a war becomes unmanageable because of the ambiguity between combatants and non-combatants. The only solution is negotiation. And the reward to the non state actor is a certain legitimacy to proceed to the preservation of its ultimate goals.
6. International relations is predicated on the “Munich” principle—large states, or large blocks of states may always determine the fate of small states, especially when these are perceived to affect the interests of the larger states. In an ironic twist of sorts, the ghost o Adolph Hitler, and Hitlerian international relations theory, continue to haunt the Israelis. The principles of the 1938 Munich Conference—that the fate of small states can be determined by bargaining among larger states—appears to be alive and well among the media elite. I am not making the usual and silly analogy to Munich—an analogy highlighting the folly of appeasement in certain circumstances. Instead I refer to the far more robust principle that survived Munich and became entrenched in international relations and international law to some extent—the notion that third party states may impose settlements on others. In this case, of course, the third parties including France, Lebanon’s old colonial master, the United States, Israel’s patron, and bits and pieces of the Muslim nation, all of which seem to have a claim on the territory that includes the State of Israel and some of whom stand as patrons of Hezbollah within Lebanon (but not of Lebanon itself). Thus, “the international community must impose a truce,” and the principals must be “consulted.” Since the principals are incapable of managing their conflicts in a manner acceptable to the rest of the world community, then others will undertake that management function on their behalf. That the management involves non state combatants, states that are incapable of asserting power within their territories, states with ambiguous territorial borders, and states in gestation, makes no difference. Indeed, this state of affairs may make it even more tempting to interfere. The difficulty, of course, is that while states may like to interfere in the affairs of others, they tend to like to commit their own resources to the management of those conflicts without either some great reward or the assurance of little damage. Thus, soldiers will not police a truce that does not hold and negotiation must be structures to provide the possibility for both sides to “claim some sort of victory.”
7. Political settlements are transactions that can be managed, even in the face of irreconcilable positions. This reference in the editorial to the need to find a means of permitting the parties to a violent conflict to claim victory as a predicate to the continuation of the conflict through non violent means opens the most interesting window on Western thinking when it turns to the proposed methodology of conflict management. Management comes in two stages (a typical pattern of Western thinking). In the first, the violent expression of the conflict is stopped. In the second, the bargain to be struck among the relevant parties is negotiated. The format privileges the absence of violence. It privileges process—negotiation in this case. It privileges non violent arenas for conflict—the media (naturally enough), diplomacy, cultural manipulation of subject populations, propaganda campaigns to exert pressure on other states through a direct appeal to foreign citizens to begin to conceptualize a conflict in one of any number of plausible ways. But it does not directly privilege resolution. It can’t. Resolution requires belief that parties with deeply held irreconcilable positions can somehow overcome culture, education, interest, politics and advantage to haggle over a resolution the way merchants haggle over a transaction in fungible goods. This seems natural enough from a merchant culture, like that of the United States, built on principles of exchange, negotiation, fungibility, compromise. The editorial makes the assumption, so common in the West, that irreconcilable differences can be reconciled, that deeply held religious ideas about the shape of the world and the rights of people to occupy certain portions of it can be treated as an object for negotiation. But for non-state actors, for guerilla organizations, for states with deeply held views, that sort of negotiation is impossible. For these groups, negotiation provides a breathing space. It provides a venue for the articulation of beliefs on a broader stage. It provides a means of extending the conflict to political terrain. It does not suggest a place where ultimate goals are modified in the face of the needs of other groups. The IRA and ETA understand this sort of meaning of negotiation. The West does not. Or maybe it does but is willing to live with this ambiguity because it manages to purchase management in lieu of violence. That may be enough for the West. Time, demographic shifts, the results of warfare fought in the culture, religion, social and political spheres may serve to end the conflict as effectively as a war. And there will be no physical destruction to repair, and more people to continue to utilize in the situation that emerges. All the better. The West is convinced that cold war works best—we can outlive, outspend, outbreed, outculture the opponent. That was how the Soviets were defeated, so some have come to believe. Those principles can be generalized. Thus, the editorial can support a truce that puts ending physical violence as essential the sole practical goal. Negotiation then provides the cover for engaging in warfare by other means. Negotiation management thus does not require a commitment to reconciliation. It does not require a commitment to political settlement. It requires only a willingness to divert the conflict.
8. The United Nations provides an adequate cover for cold war activities among combatants during periods in which unstable settlements remain in effect. With negotiation a goal in itself, the West tends to look to a method of managing this form of conflict containment. Thus it comes as little surprise that the editorial would reflect the assumption that a multi national force can serve as a veil behind which conflict can be managed well. For that purpose, the U.N. has served well. But it remains only a veil. In Lebanon, the U.N. provided a cover under which Hezbollah was able to build a state within a state in southern Lebanon. It provided the cover necessary for the peaceful transfer of sovereign authority from Serbia to Kosovo. The U.N. provides protection for all parties and serves to create the space necessary for the continuation of conflict by other means.
9. Peace is the new form of war. Ultimately, the editorial reveals the fundamental turn of modern international approaches to conflict—peace is the new war. Perhaps this is both a welcome and inevitable consequence of the principles of conflict management that the editorial reveals. If conflict is inevitable, if negotiation might not lead to resolution of disputes, then an alternative method of conflict might better serve to minimize the effects of conflict on the management of productive populations. In a world in which conflict resolution is impossible, and the global exploitation of labor, capital and resources becomes an increasingly important component of international relations, the deflection of violent conflict into other forms of battle becomes a paramount interest of the global community. A political settlement is hardly important. Truth, fairness, right, justice become the forms through which the battle is fought on the fields of law, religion, culture, society and politics. The ultimate aims of the combatants are also irrelevant. Hezbollah and Israel would like to see each eradicated, though in truth Hezbollah is thinking in terms of large scale murder and Israel in terms of cultural or religious obliteration. Still, those are relative exterminations to a West now committed to a different model of peace, one in which a form of amorality has become necessary to preserve the structure of wealth maximizing systems being constructed on a global scale.
Thus, the New York Times editorial presents, unconsciously to be sure, a sort of Management Model of international relations and law. Its principles are efficient. Having determined that there is no worse thing than violent conflict, this Model constructs a basis of international relations in which conflict management is set as the supreme value and everything else is bent to the need to prevent war. It is a system with a moral compass, but one very different from that usually associated with the conduct of state relations. But ironically enough, it retains a twist of social Darwinism, without regard to moral value, it ensures that the strongest will ultimately win. Strength, however, may now be measured by means other than military capability where such capability is not sufficiently powerful to blast an opposition to extinction quickly and with a minimum of fuss. The future will reveal just how well this sort of system will work and the sort of character the world will take. What is clear, however, is that, slowly but without substantial impediment, global institutions are arising to create an institutional basis for implementing this Management Model of International Relations. The United Nations system, the internationalization of criminal and human rights law, the creation of an International Criminal Court to prosecute violations of those statutes, and a framework for the global regulation of economic activity all speak to a time when management without regard to values will dominate the approach to the resolution of disputes.
Sunday, August 06, 2006
Ideological Campaigns and the Creation of a "Higher Law" in China: "Ba rong, ba chi" or the "eight honors, eight disgraces"
This past March, the President of the People’s Republic of China, Hu Jintao, announced the commencement of a new ideological campaign, "Ba rong, ba chi" or the "eight honors, eight disgraces." As reported by Liu Dan in an article published to a PRC web site (New moral yardstick: "8 honors, 8 disgraces," April 5, 2006, Xinhua), ba rong, ba chi is meant to become “the new moral yardstick to measure the work, conduct and attitude of Communist Party officials.” Id. As translated on this web site, the eight honors and eight disgraces is meant to reflect the Mandarin original that was written to read “like rhyming couplets and sounds almost poetic.” Id. Rendered in English, ba rong, ba chi provides
-- Love the country; do it no harm.
-- Serve the people; do no disservice.
-- Follow science; discard ignorance.
-- Be diligent; not indolent.
-- Be united, help each other; make no gains at other's expense.
-- Be honest and trustworthy; do not spend ethics for profits.
-- Be disciplined and law-abiding; not chaotic and lawless.
-- Live plainly, struggle hard; do not wallow in luxuries and pleasures.
Id. Beyond the poetry, of course, is a clear effort to associate ba rong ba chi with good fortune. It was not for nothing that there are eight honors. Eight has been traditionally associated with good fortune. Four, on the other hand, is a number traditionally associated with death or bad luck.
Ba rong, ba chi is aimed at corruption within the Chinese Communist Party. The web site report of ba rong, ba chi states that
“The Organization Department of the CPC Central Committee has decided to use the list of do's and don't's as an important assessment tool in order to select clean, diligent and capable officials for important posts. . . . The CPC will ask all its officials and members to reflect on the pairs of eight opposing values and hope it will refresh the atmosphere in official circles and have a positive influence on all citizens.”
Id. The basis of this anti-corruption campaign is grounded in the construction of a clerar moral system elaborated from the basic principles of Marxism Leninism on which the Chinese political system is grounded. Indeed, Hu Jintao described ba rong ba chi as socialist morality.
In this sense, ba rong, ba chi provides a further elaboration of the now constitutionalized “sange daibiao” or Three Represents campaign. Indeed, ba rong, ba chi should not be read in a vacuum; it reveals its importance only in the context of the CCP’s efforts to flesh out the sange daibiao (Three Represents) principles announced in 2000 as “the nucleus of Jiang Zemin Theory. The theory focuses on the future role of the CCP as "a faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China” (Landsberger, Stephen, 2006. Jiang Zemin (Three Represents) Theory. In Stefan Landsberger's Chinese Propaganda Poster Pages. ).
Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the institutional apparatus of the Chinese state. But it does more than that—it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao might provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.
Ba rong, ba chi is important for sange daibiao as a targeted elaboration of the theory. It joins the earlier “Two Musts” campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses, as part of the current leadership’s attempt to provide a thick set of principles for the institutionalization of governing principles for the Communist Party in a rapidly changing China. Taken together, these ideological campaigns can have positive effect by providing CCP leadership with a system of principles necessary for neutral application of rules to all members of the Communist Party as the leading political force in the state. Should this actually occur, the CCP could bolster its legitimacy within a rule of law framework. I have written about this before (Larry Catá Backer, Chinese Constitutionalism, Sange Daibiao (the “Three Represents”), and the Rule of Law, Law at the End of the Day, May 16, 2006).
But Chinese ideological campaigns have a very bad reputation among sinologists outside of China. Fairly typically, Marie Holzman reminded her readers as early as 2001, of the historical context in which ideological campaigns were used and perhaps misused by generations of leadership in China (Marie Holzman, Vicious Patterns: The Chinese Regime’s Use of Repression and the Evolution of its Tagets, January 22, 2001). Within China, and among the overseas Chinese community, the attitude is more one of derision. The successive waves of ideological campaigns are mocked (the fate of ba rong ba chi, it seems) and criticized as incomprehensible (the consensus about sange daibiao). For some, ba rong, ba chi is better understood in the context of the run up to the 2008 Olympics and the CCP’s drive to control political expression (Rowan Callick, Great Firewall of China, “The Australian”).
Despite the criticisms, ba rong ba chi, within the complex of foundational principles announced by the CCP leadership since the institutionalization of the sange daibiao in the constitutions of the PRC and the CCP, presents China with substantial constitutional opportunity, along with great risk.
1. Sange Diabiao provides that the CCP is the “faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China.” These foundational relationships can remain legitimated only as long as CCP cadres advance the interests of the Chinese people rather than those of more narrow classes of people—themselves, their families, their cronies, etc. Anti-corruption thus lies at the heart of sange daibiao.
2. Ba rong ba chi provides a basis for fleshing out the meaning of avoidance of corruption in a way that might have meaning for CCP cadres. Its principles can serve as a basis for predictable, consistent and fair application to the behavior of CCP cadres and in that way begin to establish a pattern of consistent discipline. That pattern can then serve as a basis for behavior norm expectations beyond the power of any individual to bend without at least the threat of consequence. In a sense, then, ba rong ba chi can contribute to the rise of a rule of law society in China by helping to institutionalize rule based discipline within the CCP itself. If the CCP can govern itself by rules rather than through individual will, then the CCP can stand as a legitimate institution for the rule based governance of the state.
3. If ba rong ba chi remains an individual effort among CCP cadres, if the CCP fails to institutionalize the principles of ba rong, ba chi, and provide a fair and consistently applied system for its implementation throughout the CCP apparatus, then it will have failed. It will remain a tool of individual will and effort. It will provide the people with no assurance that it will mean something other than an indivudual cadre with power says it means. In this sense ba rong ba chi can augment rather than diminish corruption.
4. If ba rong, ba chi is treated as an isolated set of individual behavior governing principles, it will fail. Ba rong ba chi must govern the behavior of institutions as well as individuals. The bad behavior of provincial party cadres targeted in part by this campaign cannot be successfully overcome unless the institutional bad behavior of local party institutions is also overcome. But this requires both a recognition that corruption can be institutional as well as individual, and a commitment to create the sort of institutional response capable of modifying bad institutional behavior. The CCP has the capability, and it now appears to have the principles, to increase its success. But it needs to ensure that any such success can outlive the individuals whose efforts have driven the campaign to date. That is the essence of the difference between rule by individual and rule by law.
5. If ba rong ba chi stands alone as a principle of governance, it will also fail. Interpreting ba rong ba chi is impossible outside the context of sange daibiao. And that context requires consideration of a number of other principles already mentions (the Two Musts, etc.). Each modifies the other.
6. The price of failure is great. The CCP has now committed itself publicly, before its own people and to the international community, that it has embraced certain governance principles. These principles are meant to provide a certainty, predictability and fairness to the relationships between the state and its citizens, and among those with a responsibility for political governance and others. Ba rong ba chi as empty vessels will do little to enhance the legitimacy of the CCP and its control of the state apparatus in China. Having committed to sange daibiao and its supporting principles, the CCP has committed itself to a course of action that can substantially weaken its position as the leading progressive force in the state if it fails to make good on the promises implied by systems of moral principles, like those of ba rong ba chi, and now constitutional principles like sange daibiao.
7. The price of failure is even greater in China than in systems where the state apparatus embraces merely political principles. Ba rong ba chi evidences an intention to cloth governance legitimacy not in political but in moral principles. Where political systems stake their legitimacy on moral principles the stakes can be great indeed. The Americans learned this at the cost a great civil war in the context of ideological campaigns revolving around the issue of slavery. Theocratic states like Iran face the same risks if a moral basis of political legitimacy is perceived as corrupted. If the CCP is to be a source of moral as well as political legitimacy, the institutional basis for implementing those systems must eventually be in place.
8. Ba rong ba chi, in any case, evidences the deep commitment of the CCP to the course charted by sange daibiao. It will be interesting to see if the promise of these principles can be realized and the nature of the CCP state relationship that will emerge from the proper application of these principles.
-- Love the country; do it no harm.
-- Serve the people; do no disservice.
-- Follow science; discard ignorance.
-- Be diligent; not indolent.
-- Be united, help each other; make no gains at other's expense.
-- Be honest and trustworthy; do not spend ethics for profits.
-- Be disciplined and law-abiding; not chaotic and lawless.
-- Live plainly, struggle hard; do not wallow in luxuries and pleasures.
Id. Beyond the poetry, of course, is a clear effort to associate ba rong ba chi with good fortune. It was not for nothing that there are eight honors. Eight has been traditionally associated with good fortune. Four, on the other hand, is a number traditionally associated with death or bad luck.
Ba rong, ba chi is aimed at corruption within the Chinese Communist Party. The web site report of ba rong, ba chi states that
“The Organization Department of the CPC Central Committee has decided to use the list of do's and don't's as an important assessment tool in order to select clean, diligent and capable officials for important posts. . . . The CPC will ask all its officials and members to reflect on the pairs of eight opposing values and hope it will refresh the atmosphere in official circles and have a positive influence on all citizens.”
Id. The basis of this anti-corruption campaign is grounded in the construction of a clerar moral system elaborated from the basic principles of Marxism Leninism on which the Chinese political system is grounded. Indeed, Hu Jintao described ba rong ba chi as socialist morality.
In this sense, ba rong, ba chi provides a further elaboration of the now constitutionalized “sange daibiao” or Three Represents campaign. Indeed, ba rong, ba chi should not be read in a vacuum; it reveals its importance only in the context of the CCP’s efforts to flesh out the sange daibiao (Three Represents) principles announced in 2000 as “the nucleus of Jiang Zemin Theory. The theory focuses on the future role of the CCP as "a faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China” (Landsberger, Stephen, 2006. Jiang Zemin (Three Represents) Theory. In Stefan Landsberger's Chinese Propaganda Poster Pages. ).
Sange Daibiao provides an ideological basis, a deep constitutional foundation, for the position of the CCP at the center of the institutional apparatus of the Chinese state. But it does more than that—it also provides the basis through which the rule of law, as a framework for the proper relationship between state institutions (representing the collective) and the individual (as an instrument of that collective). As developed by the organs of the CCP, it is clear that Sange Daibiao might provide the principles through which the framework of commonly understood rule of law constitutionalism can be adopted with Chinese characteristics.
Ba rong, ba chi is important for sange daibiao as a targeted elaboration of the theory. It joins the earlier “Two Musts” campaign (the CCP must keep a humble attitude and must keep a hardworking spirit), and the Fish-Water connection between CCP cadres and the masses, as part of the current leadership’s attempt to provide a thick set of principles for the institutionalization of governing principles for the Communist Party in a rapidly changing China. Taken together, these ideological campaigns can have positive effect by providing CCP leadership with a system of principles necessary for neutral application of rules to all members of the Communist Party as the leading political force in the state. Should this actually occur, the CCP could bolster its legitimacy within a rule of law framework. I have written about this before (Larry Catá Backer, Chinese Constitutionalism, Sange Daibiao (the “Three Represents”), and the Rule of Law, Law at the End of the Day, May 16, 2006).
But Chinese ideological campaigns have a very bad reputation among sinologists outside of China. Fairly typically, Marie Holzman reminded her readers as early as 2001, of the historical context in which ideological campaigns were used and perhaps misused by generations of leadership in China (Marie Holzman, Vicious Patterns: The Chinese Regime’s Use of Repression and the Evolution of its Tagets, January 22, 2001). Within China, and among the overseas Chinese community, the attitude is more one of derision. The successive waves of ideological campaigns are mocked (the fate of ba rong ba chi, it seems) and criticized as incomprehensible (the consensus about sange daibiao). For some, ba rong, ba chi is better understood in the context of the run up to the 2008 Olympics and the CCP’s drive to control political expression (Rowan Callick, Great Firewall of China, “The Australian”).
Despite the criticisms, ba rong ba chi, within the complex of foundational principles announced by the CCP leadership since the institutionalization of the sange daibiao in the constitutions of the PRC and the CCP, presents China with substantial constitutional opportunity, along with great risk.
1. Sange Diabiao provides that the CCP is the “faithful representative of the requirements in the development of advanced productive forces in China, the orientation of the advanced culture in China, and the fundamental interests of the broadest masses of the people in China.” These foundational relationships can remain legitimated only as long as CCP cadres advance the interests of the Chinese people rather than those of more narrow classes of people—themselves, their families, their cronies, etc. Anti-corruption thus lies at the heart of sange daibiao.
2. Ba rong ba chi provides a basis for fleshing out the meaning of avoidance of corruption in a way that might have meaning for CCP cadres. Its principles can serve as a basis for predictable, consistent and fair application to the behavior of CCP cadres and in that way begin to establish a pattern of consistent discipline. That pattern can then serve as a basis for behavior norm expectations beyond the power of any individual to bend without at least the threat of consequence. In a sense, then, ba rong ba chi can contribute to the rise of a rule of law society in China by helping to institutionalize rule based discipline within the CCP itself. If the CCP can govern itself by rules rather than through individual will, then the CCP can stand as a legitimate institution for the rule based governance of the state.
3. If ba rong ba chi remains an individual effort among CCP cadres, if the CCP fails to institutionalize the principles of ba rong, ba chi, and provide a fair and consistently applied system for its implementation throughout the CCP apparatus, then it will have failed. It will remain a tool of individual will and effort. It will provide the people with no assurance that it will mean something other than an indivudual cadre with power says it means. In this sense ba rong ba chi can augment rather than diminish corruption.
4. If ba rong, ba chi is treated as an isolated set of individual behavior governing principles, it will fail. Ba rong ba chi must govern the behavior of institutions as well as individuals. The bad behavior of provincial party cadres targeted in part by this campaign cannot be successfully overcome unless the institutional bad behavior of local party institutions is also overcome. But this requires both a recognition that corruption can be institutional as well as individual, and a commitment to create the sort of institutional response capable of modifying bad institutional behavior. The CCP has the capability, and it now appears to have the principles, to increase its success. But it needs to ensure that any such success can outlive the individuals whose efforts have driven the campaign to date. That is the essence of the difference between rule by individual and rule by law.
5. If ba rong ba chi stands alone as a principle of governance, it will also fail. Interpreting ba rong ba chi is impossible outside the context of sange daibiao. And that context requires consideration of a number of other principles already mentions (the Two Musts, etc.). Each modifies the other.
6. The price of failure is great. The CCP has now committed itself publicly, before its own people and to the international community, that it has embraced certain governance principles. These principles are meant to provide a certainty, predictability and fairness to the relationships between the state and its citizens, and among those with a responsibility for political governance and others. Ba rong ba chi as empty vessels will do little to enhance the legitimacy of the CCP and its control of the state apparatus in China. Having committed to sange daibiao and its supporting principles, the CCP has committed itself to a course of action that can substantially weaken its position as the leading progressive force in the state if it fails to make good on the promises implied by systems of moral principles, like those of ba rong ba chi, and now constitutional principles like sange daibiao.
7. The price of failure is even greater in China than in systems where the state apparatus embraces merely political principles. Ba rong ba chi evidences an intention to cloth governance legitimacy not in political but in moral principles. Where political systems stake their legitimacy on moral principles the stakes can be great indeed. The Americans learned this at the cost a great civil war in the context of ideological campaigns revolving around the issue of slavery. Theocratic states like Iran face the same risks if a moral basis of political legitimacy is perceived as corrupted. If the CCP is to be a source of moral as well as political legitimacy, the institutional basis for implementing those systems must eventually be in place.
8. Ba rong ba chi, in any case, evidences the deep commitment of the CCP to the course charted by sange daibiao. It will be interesting to see if the promise of these principles can be realized and the nature of the CCP state relationship that will emerge from the proper application of these principles.
Tuesday, August 01, 2006
Anticipating Fidel Castro's Death: The U.S. and China Prepare For Battle Over the Fate of Cuba
For quite some time, China has been increasing its involvement in Cuba. Though Fidel Castro remains a committed Stalinist, his brother Raul, along with the top commanders of FAR (fuerzas armadas revolucionarias) have long sought to convert the Cuban economy toi the Chinese model. They are wise to try to do so if they hope to maximize the likelihood of salvaging something of the revolution of 1959. China has managed to maintain, at least for the moment, a Marxist Leninist foundation over which it has overlaid the forms and methods of the current global economic system. I have discussed these efforts at some length. Larry Catá Backer, Cuban Corporate Governance at the Crossroads: Cuban Marxism, Private Economic Collectives and Free Market Globalism, 14 (2) JOURNAL OF TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 337 (2004).
Though Mr. Castro has for a long time resisted Chinese methods and been leery of Chinese entanglements, age and necessity appear to have produced an acquiescence of sorts. Aid from China has increased dramatically in recent years. There is hardly a month when high level officials from the People's Liberation Army of China are not visiting their counterparts in Cuba. Material aid has also been arriving from China, now better able to provide Cuba with the goods it needs. None of these visits have been secret. None of this aid has been hidden. All of these events have been well publicized by the Communist Party organs of both Cuba and China. As recently as this past May, Mr. Castro acknowledged the critical aid that had been flowing from China. See Fidel Castro Ruz, Discurso pronunciado por el Presidente de la República de Cuba, Fidel Castro Ruz, en la entrega de 101 vehículos a la Unión Eléctrica, efectuado en la Unión Eléctrica Nacional, el 5 de mayo de 2006.
And China has been increasingly willing to protect what it considers its spheres of influence, as well as its client states--from North Korea to the Sudan. China has been projecting its power in ways deliberately orchestrated to catch the attention of the Western media. The recent trip of the Chinese President through Africa was a case in point. For the Chinese, for whom symbolism is important, these emblematic markers were meant as a declaration (or warning) of sorts to the West that China means to be taken seriously on the world stage. Cuba provides a dramatic and relatively low cost way of driving this point home to the United States in a way that might bring it some substantial benefit.
Why China, and why Cuba? The Chinese have something Cuba desperately needs--a protector with the strength, will and material goods to keep the government and its system protected against the interests of the United States. The embargo imposed by the Americans have served the Cuban state well. It has been insulated from the turbulence of the last fifty years and may now be in a position, under the careful tutlege of a Marxist Leninist state that has made the transition from isolation to engagement with world economic markets, to come out of its own isolation without jeopardizing the fundamental norms of its political system. Cuba has something the Chinese want as well--a client state ninety miles from the borders of the United States itself. Cuba provides the Chinese with a base form which it can project power along the borders of the United States. For the Chinese this may be tit for tat. The United States has long used South Korea, Thailand, and especially Taiwan for thos every purposes. The substance and symbolism of a Chinese "mandate" in Cuba may be too tempting to resist.
As usual, the United States, as well as the diaspora Cubans, have paid little attention to this great change in the methods and approach of the Cuban revolutionary government. They have failed to assign much significance to the actions of the Chinese state in Cuba. They have let this go to their detriment. Only now, when it appears that Fidel Castro's health may appear to be failing, has the American (and Cuban-American elites) woken up top a new reality in Cuba. An early (though likely too late) sign of this new consciousness comes from a speech recently made by a Cuban-American Administration official, U.S. Commerce Secretary Carlos Gutierrez, at (of all places) the Cato Institute. In addition to the usual statements one would expect in a speech of this type to this audience, Secretary Gutierrez included an interesting statement, meant, I believe, for an audience in Beijing and La Habana, rather than in Washington, D.C. He seemed to warn (no one in particular) that "we pledge to discourage third parties from obstructing the will of the Cuban people."
While the Administration has sometimes mentioned third party obstruction, my sense is that, as planning for transitions start kicking into high gear, the Administration has finally come to terms with the reality that the United States may not be the only one planning for a transition in Cuba. The United States has never been afraid of any interference from the usual other suspects--Venezuela, Mexico, Russia. These states are better understood as competitors in exploitation than substitute patrons. But China has become another matter.
Why the potential credibility of a Chinese threat to U.S. plans for Cuba? Cuba provides China with a benefit that cannot be duplicated anywhere else in the Western Hemisphere. Cuba represents a territory that the United States has long viewed as connected in some way to the United States. The Cuban Diaspora in the United States in a state (Florida) critical to any closely divided presidential election, views the return of Cuba to American oversight as fundamental to its political agenda. None of this is particularly relevant to the Chinese except for a rough parallelism that has escaped most observers--the parallelism with China's connection to Taiwan. The Americans control and protect Taiwan. The Chinese want it. Cuba is looking for a protector other than the United States. It has been China's for the buying. A Chinese influenced (and defended) Cuba might be enough of a temptation for the American Administration (because of the perceived needs of its own internal politics and the dynamics of elections) to be willing to cut a deal. In exchange for Taiwan, the Chinese might be induced to abandon Cuba to the Americans. A brilliant strategy, really. China, through Cuba, acquires an enormous leverage it might not otherwise ever have with respect to inducing the Americans to abandon or at least reduce their support of an independent (or quasi independent) Taiwan. Acquiring a privileged position in Cuba for the purpose of trading that position for a greater control of Taiwan is certainly high on China's radar.
Much about this potential strategy depends on luck and planning. Fidel Castro must live long enough to provide adequate time for the relationship with China to mature in a way credible and unavoidable to Washington,. Raul Castro and the FAR must be successful in changing bureaucratic habits that are a generation old. The changes in the China Cuba relationship, and Cuban economic structures must be accepted by critical third players (and particularly the E.U. through Spain, and Latin America through Brazil and Mexico). The greater the investment of these third countries in the new Cuba, the more difficult it will be for the United States to intervene. Indeed, American strategy relies critically on an absence of substantial investment by its global allies. But all of this is now in the works, as the E.U. increases its presence in Cuba and Latin America seeks to assert its authority there to prevent an American sponsored putsch.
Thus the United States has again boxed itself into a set of unpalatable choices through bad planning. Cuba was available to the United States for the asking. A long drawn out process of lifting the blockage, combined with indirect aid and a deal on Cuban diaspora claims (to be settled with U.S. grants, for example), would have made it harder for Raul Castro and the FAR to convince Fidel to abandon his Stalinism in favor of the free enterprise Maoism of China. But a variety of factors made that kind of thinking incomprehensible in Washington. Too bad. The Administration will now face a series of increasingly bad choices as Fidel Castro comes closer to joining the pantheon of deceased leaders of Cuba. And a grudging congratulations to Chinese leaders for a well thought through and executed strategy on Taiwan/Cuba. We should hire some of their planners. They might come cheap.
Though Mr. Castro has for a long time resisted Chinese methods and been leery of Chinese entanglements, age and necessity appear to have produced an acquiescence of sorts. Aid from China has increased dramatically in recent years. There is hardly a month when high level officials from the People's Liberation Army of China are not visiting their counterparts in Cuba. Material aid has also been arriving from China, now better able to provide Cuba with the goods it needs. None of these visits have been secret. None of this aid has been hidden. All of these events have been well publicized by the Communist Party organs of both Cuba and China. As recently as this past May, Mr. Castro acknowledged the critical aid that had been flowing from China. See Fidel Castro Ruz, Discurso pronunciado por el Presidente de la República de Cuba, Fidel Castro Ruz, en la entrega de 101 vehículos a la Unión Eléctrica, efectuado en la Unión Eléctrica Nacional, el 5 de mayo de 2006.
And China has been increasingly willing to protect what it considers its spheres of influence, as well as its client states--from North Korea to the Sudan. China has been projecting its power in ways deliberately orchestrated to catch the attention of the Western media. The recent trip of the Chinese President through Africa was a case in point. For the Chinese, for whom symbolism is important, these emblematic markers were meant as a declaration (or warning) of sorts to the West that China means to be taken seriously on the world stage. Cuba provides a dramatic and relatively low cost way of driving this point home to the United States in a way that might bring it some substantial benefit.
Why China, and why Cuba? The Chinese have something Cuba desperately needs--a protector with the strength, will and material goods to keep the government and its system protected against the interests of the United States. The embargo imposed by the Americans have served the Cuban state well. It has been insulated from the turbulence of the last fifty years and may now be in a position, under the careful tutlege of a Marxist Leninist state that has made the transition from isolation to engagement with world economic markets, to come out of its own isolation without jeopardizing the fundamental norms of its political system. Cuba has something the Chinese want as well--a client state ninety miles from the borders of the United States itself. Cuba provides the Chinese with a base form which it can project power along the borders of the United States. For the Chinese this may be tit for tat. The United States has long used South Korea, Thailand, and especially Taiwan for thos every purposes. The substance and symbolism of a Chinese "mandate" in Cuba may be too tempting to resist.
As usual, the United States, as well as the diaspora Cubans, have paid little attention to this great change in the methods and approach of the Cuban revolutionary government. They have failed to assign much significance to the actions of the Chinese state in Cuba. They have let this go to their detriment. Only now, when it appears that Fidel Castro's health may appear to be failing, has the American (and Cuban-American elites) woken up top a new reality in Cuba. An early (though likely too late) sign of this new consciousness comes from a speech recently made by a Cuban-American Administration official, U.S. Commerce Secretary Carlos Gutierrez, at (of all places) the Cato Institute. In addition to the usual statements one would expect in a speech of this type to this audience, Secretary Gutierrez included an interesting statement, meant, I believe, for an audience in Beijing and La Habana, rather than in Washington, D.C. He seemed to warn (no one in particular) that "we pledge to discourage third parties from obstructing the will of the Cuban people."
While the Administration has sometimes mentioned third party obstruction, my sense is that, as planning for transitions start kicking into high gear, the Administration has finally come to terms with the reality that the United States may not be the only one planning for a transition in Cuba. The United States has never been afraid of any interference from the usual other suspects--Venezuela, Mexico, Russia. These states are better understood as competitors in exploitation than substitute patrons. But China has become another matter.
Why the potential credibility of a Chinese threat to U.S. plans for Cuba? Cuba provides China with a benefit that cannot be duplicated anywhere else in the Western Hemisphere. Cuba represents a territory that the United States has long viewed as connected in some way to the United States. The Cuban Diaspora in the United States in a state (Florida) critical to any closely divided presidential election, views the return of Cuba to American oversight as fundamental to its political agenda. None of this is particularly relevant to the Chinese except for a rough parallelism that has escaped most observers--the parallelism with China's connection to Taiwan. The Americans control and protect Taiwan. The Chinese want it. Cuba is looking for a protector other than the United States. It has been China's for the buying. A Chinese influenced (and defended) Cuba might be enough of a temptation for the American Administration (because of the perceived needs of its own internal politics and the dynamics of elections) to be willing to cut a deal. In exchange for Taiwan, the Chinese might be induced to abandon Cuba to the Americans. A brilliant strategy, really. China, through Cuba, acquires an enormous leverage it might not otherwise ever have with respect to inducing the Americans to abandon or at least reduce their support of an independent (or quasi independent) Taiwan. Acquiring a privileged position in Cuba for the purpose of trading that position for a greater control of Taiwan is certainly high on China's radar.
Much about this potential strategy depends on luck and planning. Fidel Castro must live long enough to provide adequate time for the relationship with China to mature in a way credible and unavoidable to Washington,. Raul Castro and the FAR must be successful in changing bureaucratic habits that are a generation old. The changes in the China Cuba relationship, and Cuban economic structures must be accepted by critical third players (and particularly the E.U. through Spain, and Latin America through Brazil and Mexico). The greater the investment of these third countries in the new Cuba, the more difficult it will be for the United States to intervene. Indeed, American strategy relies critically on an absence of substantial investment by its global allies. But all of this is now in the works, as the E.U. increases its presence in Cuba and Latin America seeks to assert its authority there to prevent an American sponsored putsch.
Thus the United States has again boxed itself into a set of unpalatable choices through bad planning. Cuba was available to the United States for the asking. A long drawn out process of lifting the blockage, combined with indirect aid and a deal on Cuban diaspora claims (to be settled with U.S. grants, for example), would have made it harder for Raul Castro and the FAR to convince Fidel to abandon his Stalinism in favor of the free enterprise Maoism of China. But a variety of factors made that kind of thinking incomprehensible in Washington. Too bad. The Administration will now face a series of increasingly bad choices as Fidel Castro comes closer to joining the pantheon of deceased leaders of Cuba. And a grudging congratulations to Chinese leaders for a well thought through and executed strategy on Taiwan/Cuba. We should hire some of their planners. They might come cheap.
Of Sodomy and Corruption: Sex, Politics Religion and Law in Malaysia
I have written about the long and complicated sexual, political, religious and legal conflict between Anwar Ibrahim, once Deputy Prime Minister of Malaysia and slated for eventual rule and his mentor nemesis Mahatir Mohammad, now former Prime Minister of Malaysia (Larry Catá Backer, Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, 17 Yale J. L. & Feminism 1 (2005)).
In the late 1990s, Mahatir was said to fear both a political challenge from Anwar Ibrahim, his all but anointed successor and deputy prime minister and the likelihood that Anwar would expose Mahatir’s connection to matters that might be characterized as corrupt. On the eve of that challenge, Anwar Ibrahim found himself the victim of a turnabout noteworthy for its audacity, perversity and irony. Conflating sexual, political, and legal corruption, Anwar Ibrahim—who had built his reputation, in part, on his religious credentials—found himself accused of sodomy and political corruption, stripped of his political position, and thrown in jail.
The Anwar trail was notorious for the fervor with which the government sought to extract confession and impose penance. Law, in the form of the courtroom, served as the site of a great morality play in which corruption was exposed in all of its manifestations, in which the tie between moral and political corruption was highlighted, and in which the value of appropriate conduct was emphasized, while the fate of the transgressor was magnified. Anwar provided the perfect victim for this ritual. Anwar was exposed precisely because he reflected critical contradictions – a moralist in a government he accused of immorality, a man committed to Islam condemning intolerance in religious matters. The trial was theater of a sort—as effective a means of communicating norms as the posting of judicial stories on the Internet. (Backer, supra.).
Eventually the sodomy convictions were overturned, by the Malay courts refused to reconsider the validity of the corruption verdicts, a position that had immediate political effect since that conviction prevented Anwar from holding office until 2008. If nothing else, this inconsistency exposed the close connection between the related manifestations of corruption in the earlier trials, as well as their primary political goals—to keep Anwar out of politics as long as possible. Anwar was released in 2004 and has since been the darling of the international elite. One gets a sense of his increasing global visibility through news of him in the web site dedicated to Anwar.
Mahatir’s political fortunes profited from this saga of socio-religious adventurism. He was able to remain in office and retire on his own terms.
But irony continues to define the relationship between these two men. As Mahatir sinks further into retirement, he has discovered that Anwar’s star continues to rise, and Anwar’s influence in Malay politics increases. In contrast, his own influence decreases. A recent article in the New York Times (Seth Mydans, “Once Powerful Malaysian Grumbles to Press He Controlled,” New York Times, July 5, 2006 at A3) setails the frustrations of the former Prime Minister in asserting influence even with his hand picked successor. Ironically enough, it is now Anwar Ibrahim who has become the more influential political figure, recently warning Malays to be wary of possible coup plot by Mahatir and his party faithful.
But the bigger irony returns us to the commencement of the battle between these two men—corruption in its many forms. Now, the tables have been turned. Anwar’s defamation suit against Mahatir is proceeding. More importantly, Anwar is now making no effort to hide his accusations of corruption against Mahatir. Anwar has been especially eager to relate evidence of corruption from Mahatir’s time in office.
What does the future hold for Mahatir? In a world guided by the principle of balance and vengeance, one might expect to see a trial for corruption in Mahtir’s future. That sort of trial would certainly serve as a necessary foundation for the rehabilitation of Anwar in Malay political society. In any case, Anwar has already tainted Mahatir (if only barely indirectly) with a greater sort of corruption as this passage from a speech delivered in 2005:
When the law is subjugated to the tyranny of politics, the administration of justice becomes both farcical and perverse. And the consequences are harsh and cruel. In a true democracy, the use of judicial high handedness to bring down a political opponent can be checked by a transparent court system and a process of accountability. In a dictatorship masquerading as a democracy, however, where the judges are subservient to the political masters, judicial highhandedness is given free rein and transparency is conspicuous by its absence. Those prosecuted for political reasons are thus condemned even before the trial begins. Instead of being the ultimate guardians of our liberty from executive tyranny, the judiciary is then transformed into principals in the destruction of the very process they were entrusted to protect. I say this not so much to inculpate judges per se, but rather as an indictment against those politicians who are so obsessed with holding on to power that they won’t think twice about destroying the foundations of judicial independence. Anwar Ibrahim, Law and Politics, A Personal Perspective, speech delivered at the Lawasia Conference, Goldcoast, Queensland, Australia, March 2005.
Anwar means to paint Mahatir with the same moral/religious and legal corruption with which he was painted in the 1990s. Tit for tat. But Anwar is not crude. He understands his international audience. No sex this time. Moral corruption takes the high road and strikes at a target with much more impact in the West—economic globalization. Mahatir’s brand of political corruption is used to intensify the effect of the related economic corruption which its necessary consequence. Thus, in the same speech, Anwar suggests “And where judges are not seen to be absolutely above board, the establishment of equity and fair play in commercial and economic deliberations will be largely illusory. This would also partly explain why Malaysia continues to occupy dismal positions in the corruption index.” (Anwar Ibrahim, supra). And this is a form of corruption that has, like sex, a religiously intensifying effect as well.
Thus the great perversity of this continuing drama: in many ways Anwar and Mahatir are birds of a feather, they are different faces of the same socio-legal normative structure in which the moral is conflated with and intensifies the legal, in which the political and social are inseparable. Both are also men who continue to take risks. For Mahtir, the risk involves a continuing involvement in politics and business. For Anwar, it is sex and religion. Consider a speech delivered at Georgetown University earlier in 2006 in which Anwar, referring to the great flowering of Ommayyad Spain spoke of the diffusion of erotica by translation. “With due respect to my Jesuit friends, I have no quarrel with those profane literature or medieval erotica from the Islamic world. In fact it only attested to the virility and fecundity of the much maligned and stereotyped Muslim mind.” (Anwar Ibrahim, Towards Freedom and Good Governance, speech given at Georgetown University, Washington, D.C., February 6, 2006).
At the end of the day sex may well dog Anwar the way economic corruption will likely dog Mahatir. Both serve as the great Achilles heel to their political ambitions in a country whose Islam is no longer the tolerate version of an all too brief Umayyad Spain, the flower of which was as much crushed by Islamic reactionaries as the Christian reconquista. It is thus with a bit of unconscious irony, perhaps, that while praising the Umayyad Spanish renaissance he condemns himself to the same fate as one its its greatest flowers, Averroes (Ibn Rushd), whose work was burned and whose thinking was condemned by growing religious fundamentalism. “The desire for freedom is a universal quest. And I reiterate that the one thing that I learned from my incarceration is the meaning of and the passion for freedom.” (Anwar Ibrahim, Georgetown speech, supra.). It is possible that this passion will continue to cost him dearly.
In the late 1990s, Mahatir was said to fear both a political challenge from Anwar Ibrahim, his all but anointed successor and deputy prime minister and the likelihood that Anwar would expose Mahatir’s connection to matters that might be characterized as corrupt. On the eve of that challenge, Anwar Ibrahim found himself the victim of a turnabout noteworthy for its audacity, perversity and irony. Conflating sexual, political, and legal corruption, Anwar Ibrahim—who had built his reputation, in part, on his religious credentials—found himself accused of sodomy and political corruption, stripped of his political position, and thrown in jail.
The Anwar trail was notorious for the fervor with which the government sought to extract confession and impose penance. Law, in the form of the courtroom, served as the site of a great morality play in which corruption was exposed in all of its manifestations, in which the tie between moral and political corruption was highlighted, and in which the value of appropriate conduct was emphasized, while the fate of the transgressor was magnified. Anwar provided the perfect victim for this ritual. Anwar was exposed precisely because he reflected critical contradictions – a moralist in a government he accused of immorality, a man committed to Islam condemning intolerance in religious matters. The trial was theater of a sort—as effective a means of communicating norms as the posting of judicial stories on the Internet. (Backer, supra.).
Eventually the sodomy convictions were overturned, by the Malay courts refused to reconsider the validity of the corruption verdicts, a position that had immediate political effect since that conviction prevented Anwar from holding office until 2008. If nothing else, this inconsistency exposed the close connection between the related manifestations of corruption in the earlier trials, as well as their primary political goals—to keep Anwar out of politics as long as possible. Anwar was released in 2004 and has since been the darling of the international elite. One gets a sense of his increasing global visibility through news of him in the web site dedicated to Anwar.
Mahatir’s political fortunes profited from this saga of socio-religious adventurism. He was able to remain in office and retire on his own terms.
But irony continues to define the relationship between these two men. As Mahatir sinks further into retirement, he has discovered that Anwar’s star continues to rise, and Anwar’s influence in Malay politics increases. In contrast, his own influence decreases. A recent article in the New York Times (Seth Mydans, “Once Powerful Malaysian Grumbles to Press He Controlled,” New York Times, July 5, 2006 at A3) setails the frustrations of the former Prime Minister in asserting influence even with his hand picked successor. Ironically enough, it is now Anwar Ibrahim who has become the more influential political figure, recently warning Malays to be wary of possible coup plot by Mahatir and his party faithful.
But the bigger irony returns us to the commencement of the battle between these two men—corruption in its many forms. Now, the tables have been turned. Anwar’s defamation suit against Mahatir is proceeding. More importantly, Anwar is now making no effort to hide his accusations of corruption against Mahatir. Anwar has been especially eager to relate evidence of corruption from Mahatir’s time in office.
What does the future hold for Mahatir? In a world guided by the principle of balance and vengeance, one might expect to see a trial for corruption in Mahtir’s future. That sort of trial would certainly serve as a necessary foundation for the rehabilitation of Anwar in Malay political society. In any case, Anwar has already tainted Mahatir (if only barely indirectly) with a greater sort of corruption as this passage from a speech delivered in 2005:
When the law is subjugated to the tyranny of politics, the administration of justice becomes both farcical and perverse. And the consequences are harsh and cruel. In a true democracy, the use of judicial high handedness to bring down a political opponent can be checked by a transparent court system and a process of accountability. In a dictatorship masquerading as a democracy, however, where the judges are subservient to the political masters, judicial highhandedness is given free rein and transparency is conspicuous by its absence. Those prosecuted for political reasons are thus condemned even before the trial begins. Instead of being the ultimate guardians of our liberty from executive tyranny, the judiciary is then transformed into principals in the destruction of the very process they were entrusted to protect. I say this not so much to inculpate judges per se, but rather as an indictment against those politicians who are so obsessed with holding on to power that they won’t think twice about destroying the foundations of judicial independence. Anwar Ibrahim, Law and Politics, A Personal Perspective, speech delivered at the Lawasia Conference, Goldcoast, Queensland, Australia, March 2005.
Anwar means to paint Mahatir with the same moral/religious and legal corruption with which he was painted in the 1990s. Tit for tat. But Anwar is not crude. He understands his international audience. No sex this time. Moral corruption takes the high road and strikes at a target with much more impact in the West—economic globalization. Mahatir’s brand of political corruption is used to intensify the effect of the related economic corruption which its necessary consequence. Thus, in the same speech, Anwar suggests “And where judges are not seen to be absolutely above board, the establishment of equity and fair play in commercial and economic deliberations will be largely illusory. This would also partly explain why Malaysia continues to occupy dismal positions in the corruption index.” (Anwar Ibrahim, supra). And this is a form of corruption that has, like sex, a religiously intensifying effect as well.
Thus the great perversity of this continuing drama: in many ways Anwar and Mahatir are birds of a feather, they are different faces of the same socio-legal normative structure in which the moral is conflated with and intensifies the legal, in which the political and social are inseparable. Both are also men who continue to take risks. For Mahtir, the risk involves a continuing involvement in politics and business. For Anwar, it is sex and religion. Consider a speech delivered at Georgetown University earlier in 2006 in which Anwar, referring to the great flowering of Ommayyad Spain spoke of the diffusion of erotica by translation. “With due respect to my Jesuit friends, I have no quarrel with those profane literature or medieval erotica from the Islamic world. In fact it only attested to the virility and fecundity of the much maligned and stereotyped Muslim mind.” (Anwar Ibrahim, Towards Freedom and Good Governance, speech given at Georgetown University, Washington, D.C., February 6, 2006).
At the end of the day sex may well dog Anwar the way economic corruption will likely dog Mahatir. Both serve as the great Achilles heel to their political ambitions in a country whose Islam is no longer the tolerate version of an all too brief Umayyad Spain, the flower of which was as much crushed by Islamic reactionaries as the Christian reconquista. It is thus with a bit of unconscious irony, perhaps, that while praising the Umayyad Spanish renaissance he condemns himself to the same fate as one its its greatest flowers, Averroes (Ibn Rushd), whose work was burned and whose thinking was condemned by growing religious fundamentalism. “The desire for freedom is a universal quest. And I reiterate that the one thing that I learned from my incarceration is the meaning of and the passion for freedom.” (Anwar Ibrahim, Georgetown speech, supra.). It is possible that this passion will continue to cost him dearly.
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