Hadaka no Mochitsuki: On Ritual, Tradition, and Law

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

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

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

There is something for everyone in this story.

Democracy Part VI: Elections, Representative Democracy and Hong Kong

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

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

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

Democracy Part V: Pakistan Administered

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

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

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

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

And it had effect!

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

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

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

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

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

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

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

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

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

City
Arthur Rimbaud

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

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

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

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

¿Por qué no te callas?

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

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

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

Democracy Part II: Voting Among the Unruly Masses

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

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

And thus, a mirror on voting:
 

Democracy Part I: Democracy, Gesture and Power

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

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

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

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