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.

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.

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.

Direct Shareholder Democracy: Reflections on Lucian Bebchuk

In a recent opinion piece published in the Financial Times and widely distributed to academics, (Lucian Bebcuk, “Investors Must Have Power, Not Just Figures on Pay,” The Financial Times July 27, 2006), Lucian Bebchuk, a professor of law, economics and finance and director of the program on corporate governance at Harvard Law School, lauded the recent action by the U.S. Securities and Exchange Commission to increase the disclosure requirements for executive compensation in companies whose securities are traded in securities markets under American jurisdiction. Power to the investor, he says, is good, and information is a good way to vest such power in investors. So far no surprises. This sort of approach has been the touchstone of American securities regulation for more than three quarters of a century. And this is the sort of academic intervention in the popular media that serves well the public policy underlying the American Securities Acts by continuing to lend public academic support to the legitimacy of the policy encapsulated in those Acts.

This is hardly worth noting, but Professor Bebchuk then goes on to something infinitely more interesting from my perspective. He writes “In Wednesday‘s meeting, one of the SEC commissioners expressed the hope that improved disclosure would enable investors to cast votes in a more informed way. For this to make a difference, however, shareholders need more voting power.” He goes on to suggest a number of provision he believes are worthy of adoption by shareholders, few of which have managed to find their way into the corporate governance of many public companies. “For example, companies have largely continued to adopt arrangements providing soft landings for executives pushed out due to utter failure; to establish minimum levels for bonuses, however poor performance is; and to design option plans rewarding executives for gains from market-wide and industry-wide movements rather than managers’ own performance. Similarly, in spite of repeated calls for change, companies have largely failed to adopt claw-back provisions that enable the reversal of compensation based on accounting figures that have had to be restated as well as limits on executives’ broad freedom to exercise vested options.”

For him, then, disclosure is hardly enough. The market has proven inefficient in fixing these problems. The solution must be based on a governmental intervention producing a forced shift of power to shareholders. “To ensure that directors focus on shareholder interests, they must be made not only independent of insiders but dependent on shareholders.” The road to shareholder power lies in adoption of rules to make it easier for shareholders to propose slates of candidates for the board of directors, to require all directors to stand for election annually, to require the receipt of a majority of votes cast for election, to impose a secret balloting rule for voting, Moreover, Professor Bebchuk would import from the public sector the power of ballot initiative, and would require shareholder approval of compensation plans.

Professor Bebchuk has for many years advanced this position in favor of greater shareholder direct democracy in corporate governance (e.g., Lucian Bebchuk, The Case for Increasing Shareholder Power, 118 Harvard Law Review 833 (2005)). This, he posits, is the most efficient method for ameliorating the great abuses of corporate managers and the weakness of directors in the face of managerial excess. Shareholder direct democracy provides the great antidote to managerial tyranny and directorial weakness, especially in public companies.

I am a great fan of corporate democracy. Shareholders, like citizens of any other community, whether political, religious, economic, academic or the like, ought to have a great power to directly participate and affect the conditions under which he is forced to accept the conditions of member ship in that group. But I wonder, rhetoric aside, about the focus and value of direct shareholder democracy of the sort advocated. Or rather, if power is to shift from managers and directors, to shareholders, where exactly might it go? It certainly will not go to individual shareholders for the most part. Academics have long pointed to the collective action problems of the individual shareholder (e.g. Robert Charles Clark, Corporate Law” 1986, pp. 388-95). In the U.S., individuals tend to view their shares as property, and fairly liquid property at that. The most efficient way of dealing with this sort of property, is to dispose of it whenever it is possible to acquire something of greater value. Market liquidity privileges exit over loyalty and participation. That, as Justice Scalia once noted in dissent, “is the deal” reinforced by the securities laws (Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990)).

But power taken from managers and directors must go somewhere. If not to the individual shareholder, then where might it go? A likely resting place is with institutional investors. We are told that by 1999 institutional investors held nearly half of the outstanding stock of American public corporation (The Conference Board, Institutional Investment Report, Financial Assets and Equity Holdings, Vol. 4(1), November 2000). Institutional investors are particularly active in holding shares of the largest 1,000 corporations (The Conference Board, Institutional Investment Report, Equity Ownership and Investment Strategies of U.S. and International Institutional Investors, Vol. 4(2 and 3)). But American institutional investors act for their own investors. And their primary obligation is to increase the value of the holdings they manage. That goal may require more attention to liquidity in the form of diversification rather than participation in the governance of a more limited group of corporations in which investment can be higher (John C. Coffee, Liquidity versus Control, The Institutional Investor as Corporate Monitor, 91 Columbia Law Review, 1277 (1991))). On the other hand, institutional investors might also serve whatever other articulated goals of their investors. In addition they may be created to further certain non directly monetary goals, for example good governance, avoidance of violation of international human rights norms and the like. And because investment managers may belong to the same social group as the managers of the corporations in which they invest, personal and other ties may act to limit the vigor of any inclination to become active in corporate management (Edward Rock, The Logic and Uncertain Significance) of Institutional Shareholder Activism, 79 Georgetown Law Journal 445, 468-70 (1991)).

But if institutional investors are more inclined to judge funds in terms of “investment objectives, long term preference and risk” (Edward D. Johnson, III and John J. Brennan, “No Disclosure, The Feeling is Mutual,” Wall Street Journal, January 14, 2003 at A14, describing investment manager opposition to SEC proposal requiring mutual funds to disclose their proxy voting policies and actual proxy votes cast), then to who would power likely trickle? One answer, of course, is to those individuals and entities who seek to participate in markets for corporate control. Direct shareholder democracy adds another and very interesting level of complexity to the gamesmanship possible in contests for corporate control. In one sense it might make effective control cheaper avoiding the need to actually buy shares. At a minimum, it adds layers of action possible in contest for control. Less likely, though it is fun to think about, is the incentives such shareholder democracy might create for the establishment of Japanese style cross holdings among a group of corporations, each thus watching each other’s back, at least to some extent (though clearly the sort of tight knot control of the Japanese model would not be possible in the more market oriented American context).

A potentially more interesting beneficiary of power devolution might be organized elements of civil society who seek to change corporate behavior on the basis of one or another cause. It would be those nonprofit and other social, political and religious organizations seeking to involvement themselves in corporate management who would profit mostly from this sort of proposed direct corporate democracy. They would perform the same function, in the context of corporate policies and governance that was once played by the individual shareholder with respect to compliance with shareholder disclosure obligations under the old derivative action regimes. Shareholder activism of this sort was substantially suppressed by federal legislation in the 1990s. And thus it would be ironic indeed if one sort of shareholder power, now focused on institutional shareholders and institutional elements of civil society, was created to replace the sort of individualized and small holder shareholder power recently reduced.

In this sense, Professor Bebchuk really furthers corporate governance institutionalism in fact in the name of the small shareholder, whose power remains marginal and whose interests are not addressed by a focus on direct shareholder participation in governance. On the bright side, the institutional side effects of this proposal also has the effect of destabilizing the privileged position of the shareholder supremacy principle on which so much corporate law has been based. Ironically (again) this will be done in the name of furthering shareholder primacy. In a world in which stakeholder groups, working within the intuitional framework of aggregated investment vehicles can further their own positions in the name of shareholders, it will be stakeholders rather than shareholder, for the benefit of which corporate governance will be focused. But that will be fine, as long as the formal requisites of share ownership are maintained.

But in any case, Professor Bebchuk raises one of the most interesting issues of corporate law in the early 21st century: why hold shares? The market in the U.S. has tended to answer that question in one way—that shares are held as property in which liquidity os privileged. But Professor Bebchuk reminds us that the market was able to develop that answer because the state permitted it. He reminds us that the market need not necessarily decide the answer to that question. Indeed, he suggests that the state ought to impose a different answer, that shares are bundles of citizenship rights in an economic community to which the shareholder has certain participatory obligations and in which participation rather than exit is privileged in the rules. This view has been, in other contexts, very popular over the last decade. Broadening the obligation of corporations to respond to one or another of its stakeholders has been the object of the international human rights community (see my article Multinational Corporations, Transnational Law: Corporate Social Responsibility as International Law, 37 Columbia Human Rights Law Review 287 (2006)), of local labor organizations, and other groups. As corporations have become more powerful, the tendancy has been to treat them more like states (see my article Ideologies of Globalization and Sovereign Debt: Cuba and the IMF, 24 Penn State International Law Review 497 (2006)). Professor Bebchuk reflects these trends in a narrow but important context—from within the most traditional parts of corporate law and regulation. It seems that corporate institutionalism is coming, the focus on the corporate entity must reduce the centrality of the individual shareholder. The aggregate or institutional shareholder as the conception of shares will replace the solitary shareholder, as the foundational ideal of shares as property becomes encrusted with the institutional overlay of rights and duties. In lieu of discipline by exit, shareholding will give rise to greater obligations to manage. Neither conception is wrong. Both serve economic development well enough. Each reflects cultural and social sensitivities in the conceptualization of economic entities. These conceptions shift over time and over cultures. But that this is done in the name of the individual shareholder, who ultimately loses power relative to an increasingly autonomous entity to and from which obligations flow, adds irony to the mix.

Air Travel and Globalization

Much has been written about the critical role that free movement of capital has played in the development of globalization, some of it positive (Thomas L. Friedman. 2000. The Lexus and the Olive Tree. New York, Anchor Books), some of it loving but critical (Joseph Stiglitz. 2002. Globalization and Its Discontents. London, Penguin Books), and some of it critical (Leslie Sklair. 2001. The Transnational Capitalist Class. Oxford, Blackwell Publishers). All of these works tend to focus on capital and its movement. Fewer popularizing works on globalization focus on the importance of people in "activating" this capital in global economic markets. Michael Mussa , for example, emphasized the importance of migration, the movement of peoples, in fostering globalization of trade (Michael Mussa,. 2000. "Factors Driving Global Economic Integration"). Mussa also emphasized the importance of cost and reliability in driving economic trade. The cheaper and more reliable the avenues of trade, the easier the facilitation of movement of goods and people, the more densely integrated trade and economic activity might become. People make globalization happen, as consumers and traders. The greater the impediments to the facilitation of the movement of people in trade, the greater the threat to global economic integration.

It was with that in mind that I sat in one of the busiest airports in the world as it shut down in the early afternoon in the middle of a work week as a result of weather related trouble occurring some hundreds of miles away. As tens of thousands of people scrambled to find alternative means of travel, or to postpone business meetings, or reschedule work that was scheduled to be done, or to find shelter for the night (or two), a number of thoughts came to mind:

1. Economic integration, for all its robustness is fragile. Something as simple as thunderstorms over the American Oho Valley can have substantial effects on trade at the micro level. The aggregate of constant disturbances to the flows of trade can have a tremendous effect on aggregate trade either by affecting its flow (or more likely perhaps) by affecting its cost.

2. One person’s cost is another’s profit. Disruptions in trade provides benefits and opportunities. The inefficiency of air travel in the face of weather disruptions revealed a tremendous efficiency between air carriers and local retail establishments (restaurants, clothing stores, and hotels). Local business profits a great deal whenever an airport shuts down. And at this airport in particular, the systems designed to funnel passengers from airport to nearby waiting stations were efficient and likely highly profitable. They were also designed to ameliorate the loss from travel disruptions, providing methods of communications designed to facilitate the continuation of transactions even if not in person. The only losses that could not be minimized were those requiring the actual delivery of goods or the presence of persons.

3. Trade disruptions facilitates commercial transactions. And not just local ones. The businesses making money were as likely to be the local operations of multinational enterprises, or enterprises owned by people with transnational connections, as they might be purely local affairs. Indeed, as some scholars have already suggested, multinational enterprises prefer dealing with other like sized entities in making business arrangements (John A. Matthews. 2002. Dragon Multinational: A New Model For Global Growth). In this case, multinational food and hotel chains were as likely to profit from local disruption as local firms.

4. It is not always the weather. Weather can affect travel. But sometimes the effects of weather can be multiplied by bad planning, or perhaps better put, by planning that is indifferent to the possibility of disruption caused by weather. In this case, there was a sense that a conscious overreliance on certain types of travel scheduling, combined with the implementation of operations grounded in a necessary assumption of constant ideal weather conditions, fully utilizable personnel and equipment eternally in the best working order, contributed ion no small measure to the ease with which the system collapsed on the development of thunderstorms near an important spoke in the transportation network. While such potentially sub optimal planning might require change in this context, the existence of exogenous ready amelioration devices relieves the air carriers (and the airports) of this necessity. Why plan around bad weather (or personnel and equipment failure) when there is an efficient system of housing and feeding delayed passengers, the costs of delay can be reduced by technology (for example facilitating communication via cell phones, faxes, conferencing and the like), and passengers in any case would be unlikely to pay the increased costs of transportation systems better well planned for storm related disruptions.

5. Trade systems built around reliance on exogenous mitigation networks are vulnerable to failure. So, people gamble. They are said to prefer lower travel fares based on systems positing perfect transportation conditions, gambling that they will not be on the airplane when the assumptions (one or more of them) fail. And they further gamble that the systems of mitigation in place (through transnational hotel, food and telecommunications networks) will reduce their transaction costs in the event they are caught in a transportation failure of the sort I suggested. This system is elegant in theory and quite messy in practice. Just watch tens of thousands of people scramble for hotel rooms near midnight on a week day in a large city that plays an important role in transnational trade. Just listen to the frustration of missed transaction opportunities as mobile phne networks freeze, or are disrupted by the same forces contributing to the disruption of the transportation networks. Just work through the longer term effects as it takes more than a day to get people to where they are going, disrupting the flow of commerce over a much longer term. These sorts of failures can be tolerated only to a certain point. When they become routine, when they must be planned for, then their effect on economic systems may become too large to ignore.

6. Correction is difficult. When an airport, to continue with my example, shuts down with too much frequency, and thereby causes great disruption to trade, an inefficiency has been created requiring correction. That correction may come from several sources. The market may correct the inefficiency, people may choose to travel through airports less likely to fail, they may be willing to pay more for a greater assurance of non failure, they may seek protection through insurance schemes, they may seek alternative means of travel. Innovation may make the site of inefficiency obsolete. People do not travel by ship anymore for the most part. Technology may solve the problem of airport failure. Teleconferencing, global systems of spot production or assemblage, combined with alternative transport, may reduce the value of airports to trade. States may intervene. This may produce short term amelioration at great cost (regulation is costly to produce, inherently clumsy and slow to react to changes in patterns of market conditions). Or the market may fail. Transportation systems are a soft underbelly of global integration. They might be seen by some as the perfect place to strike at the power of the states benefiting most from this economic integration. That these forces have not struck yet is a mystery but might be due in part to the difficulty of affecting the entire global system of transportation in any meaningful way (destroying an airport or two, while spectacular, is not likely to significantly affect the way goods and people move in the aggregate). But credible threats to transportation centers can under extreme condition, paralyze the system as a whole.

I would add more but the air carrier’s personnel have just started calling names on a standby list, I have been at the airport for two days, cannot get a confirmed flight until tomorrow and would really like to get to where I am going because I have a meeting I must attend . . . . . . . .

Miscausation in the International Law of Conflict Resolution: The Possibility of Error in Conceptions of the Israel-Hezbollah Conflict

In the recent past I posited a "Führer Principle" of international law (Larry Catá Backer, "The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State International Law Review 21:509-567 (2003). It posits a necessity of error in the constitution of individual authority and communal power. Communities - the nation-state, religious communities, terrorist organizations - are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes - the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities - maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power - over the priest, the president, the judge, the leader - through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility, serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of miscausation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of grounding modern international humanitarian law in the personal responsibility of individuals for their acts.

Miscaustion as a basis of international relations, and the legal framework through which it has been institutionalized (to some extent at least), is not derived from the "usual sources" of international relations theory. Precisely because these usual sources serve as the basis for the miscausation of international relations, and the legal framework through which it finds expression, it was necessary to look beyond that framework to its roots. For that purpose, the insights of Nietzsche provided a useful source. Nietzsche developed the insight of four great errors of causation that, to a great extent, served as the organizing foundation for communal power (Friedrich Nietzsche, Twilight of the Idols, in The Portable Nietzsche 464, 492-501 (Walter Kaufmann, trans. Viking Press, 1972).

The first of these errors is the confusion of cause and effect. Nietzsche explains "The newspaper reader says: this party destroys itself by making such a mistake. My higher politics says: a party which makes such mistakes has reached its end; it has lost its sureness of instinct.” Nietzsche, supra, at 493-494.

The second of these errors is the creation of false causality. In explaining the methods by which the appointed interpreters of communal norms maintain their dominant position, Nietzsche provides an example: “He even took the concept of being from the concept of the ego; he posited ‘things’ as ‘being,’ in his image, in accordance with his concept of the ego as a cause. Small wonder that later he always found in things only that which he had put into them. The thing itself, to say it once more, the concept of thing is a mere reflex of the faith in the ego as cause.” Nietzsche, supra, at 495.

The third of these errors, the creation of imaginary causes, is particularly potent in the manifestation of a führer principle. “Thus, one searches not only for some kind of explanation to serve as a cause, but for a particularly selected and preferred kind of explanation—that which has most quickly and most frequently abolished the feeling of the strange, new, hitherto unexperienced: the most habitual explanations. Consequence: one kind of positing of causes predominates more and more, is concentrated into a system, and finally emerges as dominant, that is, as simply precluding other causes and explanations.” Nietzsche, supra, at 497-498."

The last error, the falsity of free will, suggests a more subtle insight. “Today we no longer have any pity for the concept of ‘free will’: we know only too well what it really is—the foulest of all theologians’ artifices, aimed at making mankind ‘responsible’ in their sense, that is, dependent upon them. . . . The entire old psychology, the psychology of will, was conditioned by the fact that its originators, the priests at the head of ancient communities, wanted to create for themselves the right to punish—or wanted to create this right of God.” Nietzsche, supra, at 499.

The term führer principle was chosen deliberately. In its descriptive sense, the term invokes the principle of a (false) active leadership and passive political community, which serves as the lynchpin of international humanitarian law. It's roots stretch back to Biblical understanding of the relationship between a political community and its leader. The use of the German terminology provides a subtextual, and naughty, reminder of the perversity and corruption of the condition to which the term refers. The modern manifestation of a führer principle of governance originated in Germany during the period of Nazi rule, 1933-45, to describe principles of democratic governance, centering on the notion of the leader as embodiment of the sovereignty of the people (Arthur Kaufmann, "National Socialism and German Jurisprudence From 1933-1945," 9 Cardozo Law Review 9:1629, 1637-41 (1988) (law was an expression of the democratic will of the community as embodied in Hitler). Having vanquished, at great cost, the socio-political community which held to and acted on this principle, the West appears to have adopted an inverted variant of the premise of this "Leader Principle" (again) as the foundation of modern humanitarian law. The West now distinguishes between a community that educates and prepares its members for the commission of violent or criminal acts, and the individual who actually effectuates the act. The individual actor is treated as an actor free of any connection with or service for communities that might have made his actions possible in tangible and intangible ways.

It was with these notions in mind that I read a recent editorial in the American national newspaper, U.S.A. Today ("Lebanon's Past is No Model for Its Future," U.S.A. Today, July 27, 2006 at 11A). My sense is that this editorial represents the mainstream thinking of the American elite, and especially the assumptions the American elite relies on its conceptualizing the nature of the conflict in the Middle East and the scope of appropriate responses. To some extent, the views represented also reflect, though in less provocative form, the thinking of elites across the developed world. Yet those assumptions, so well articulated in this editorial, also clearly reveal the way in which Nietzsche's errors of causation have, to some great extent, also permeated thinking about international problems and the legal framework through which they must eventually be resolved. For that reason, the editorial is worth working through.

What does this editorial suggest? The editorial starts with a call to the great principle that history repeats itself. It reminds the reader that in 1978 an Israel "desperate to defend itself against terrorist attacks along its Northern border" invades Lebanon resulting ultimately in a U.N. call to withdraw and the deployment of a temporary international observer force to watch the border between Israel and Lebanon. It then suggests that the situation is worse today because, as a result of this initial invasion, a return invasion four years later, and a long term occupation of a security zone in southern Lebanon, Israel "spawned" Hezbollah, "a far more powerful threat than the isolated Palestinian terrorists it replaced." The editorial applauded Secretary of State Rice's deflection of the usual calls for an immediate cease-fire and call for a more lasting peace enforced with an international force of some kind. But the editorial then notes pessimistically that even with all of Israel's military strengths, it has met with a "cunning guerilla force dug into warrens, caves and tunnels, all under the noses of U.N. observers." And it notes that though Secretary Ricer has proposed an international force, no countries have stepped forward to volunteer (though days after a number of states--France, Turkey, Norway and others indicated a willingness to participate). The editorial alludes, without actually suggesting, that the cause of this reluctance might be the death of the 241 American servicepersonnel killed in Lebanon in 1982 (no nation wants to send military personnel to a war zone and risk death it seems) and suggests that disarming Hezbollah is unlikely by any U.N. force. Consequently, the editorial suggests its own solution: the United States must engage in dialogue with the combatants--principally Israel, Hezbollah, Syria and Iran. The editorial suggests a critical distinction between what it terms "negotiation" and what it suggests can be classified as "communication" so necessary to maintain "leverage" in the Middle East (though it is not clear what, if anything, this leverage concept means). The editorial then invokes the necessity of maintaining "the democracy that seemed so promising in Lebanon just a few months ago." The editorial suggests that "communication", which has for this part of the editorial been relabeled, remarkably enough, "negotiations for a ceasefire" provide a chance to open a dialogue that might exploit differences between Syria and Iran (Hezbollah's principal backers) "first to stop the killing and rein in Hezbollah and then for other reasons." This, the editorial concludes, is the only way to prevent history from repeating itself.

While the language of the editorial is very pretty indeed, it reveals the possibility of the sort of backwards logic suggested by Nietzsche. I do not necessarily advocate a particular view; I do, however, suggest that Nietzsche's insights suggest a great caution when grand proposals are made. Let me suggest a few examples:

1. The confusion of cause and effect. Cause and effect are nicely confused in the editorial's suggestion that negotiation with Hezbollah, Syria and Iran is necessary to preserve democracy in Lebanon. It might be equally true that democracy in Lebanon will never take root as long as it is necessary to negiotiate with non-state parties (Hezbollah) and other state actors (Syria and Iran). Another is the editorial's suggestion that the reluctance to volunteer troops for a peacekeeping force in southern Lebanon is grounded in part on the power of Hezbollah to successfully resist such forces. It might be equally true that military intervention, even at the international level, is impossible because Hezbollah reflects the will of the Shi'a Lebanese people, and is actively supported by large segments of the Lebanese civilian population many of whom might be counted on to actively help Hezbollah resist any foreign intervention. This last point is as much a history lesson ignored by the editorial as the more facile historical assertion it makes.

2. The creation of false causes. There are a number of false causes deployed in the cause of negotiation and articulated in the editorial. For example, the editorial suggests that Hezbollah retains its power only as a vassal of Syria and Iran. But it may be as likely that Hezbollah derives its strength from its close connection with the Shi'a people of Lebanon. Syria and Iran merely provide aid, and may even be able to influence Hezbollah among choices any of which might be acceptable to Hezbollah. But neither state has the power to effect the disarmament or dismemberment of the organization. Nor is it likely that Hezbollah, now a potent political, institutional, and religious force within Lebanon, likely to be willing to self-destruct. The connection between cause and effect may be loose, indeed. Likewise, it is possible that the editorial's assertion that Hezbollah was able to develop into a great military force effectively serving as the government of southern Lebanon despite the presence of U.N. observers is an exercise in false causes. It may be as likely that Hezbollah was able to develop into a strong military and institutional presence in Lebanon as a consequence of, with the passive aid of, and congruent with the policies of the United Nations as conveyed to the observer forces.

3. The creation of imaginary causes. Imaginary causes are grounded in the search "not only for some kind of explanation to serve as a cause, but for a particularly selected and preferred kind of explanation—that which has most quickly and most frequently abolished the feeling of the strange, new, hitherto unexperienced: the most habitual explanations." Nietzsche, supra, at 497-98. There are a number of examples of imaginary causes in the editorial: fear of casualties keep states from committing military forces to a war zone; that any Israeli action will produce a reaction of equal or greater force; that a U.N. force would be ineffective. Perhaps the greatest imaginary cause, in this sense, is the all too facile resort to history--and especially historical tragedy--to explain away a policy determination. In this case, the foundational assumption of the editorial--like that of many in the Western elites--is that military intervention always spawns insurgency, that this insurgency quickly develops from defensive to offensive activity, and that that can not be halted by international military efforts. Yet history lessons can as often serve as a veil covering unpalatable rationalizations. That might be the case here, where the position of the editorial staff of a fairly "middle of the road" American newspaper seeks to advance a position contrary to that of the federal executive. Moreover, lessons can be so subjective that they can reveal more about the fears of those who resort to a particular history lesson than about history or its lessons. Again, the editorial is revealing here for the way in which American exceptionalism continues to shape the beliefs of elites. This exceptionalism here takes the form of a sense that American power or persuasiveness is the necessary ingredient leading to the resolution (or more likely containment) of the current military manifestation of an intractable conflict. But it is as likely that the parties have relied as much on this sense of American exceptionalism to keep the conflict alive (the reference to the failed Clinton Administration talks between the Israeli's and Palestinians is telling). Why?; to retain the possibility that their position may ultimately be successfully adopted. Both Israel and the Palestinians have played the game of delay masterfully, enabled by a series of complicit American Administrations which failed to grasp the larger picture, or an appropriate lesson from history. Don't misunderstand. I believe in the value of history as a useful instrument of policy. But history's lessons are far less clear than the proponents of particular versions might be inclined to believe.

4. The error of free will. The editorial's suggestion of the necessity of American intervention, and of the need for American diplomacy to negotiate with it enemies nicely evidences the error of free will. American elites induce these errors because it seems to be in their interests to do so. In this respect, they may, like their Iranian counterparts, prefer to establish a foundation for conflict management rather than resolution. Unlike their Iranian counterparts, who may see in conflict management, a step toward the fulfillment of a peculiar religious vision (a topic on which I have written before), the West adopts the same position for the opposite reasons--to postpone an otherwise bloody resolution of conflict. Thus the great perversity of modern international relations--one segment of public international society seeks to foment, contain and manage conflict to hasten the resolution of all conflict, while the other seeks to contain and manage conflict to postpone their resolution (in the hopes that time will solve the problem). In this global context, the communication to which the editorial refers will be a greater exercise in (perhaps conscious) miscommunication for opposite ends. This suggests, in great measure, the most potent of Nietzsche's error of causation--the error of free will.

Taken together, the potential of error piled on error suggests a miscausation of titanic proportion. Tragically, miscausation can have significant effects on American interests. Getting back to the question posed by the editorial: what then is to be done. The answer may well be nothing more than containment. Like all conflicts, this one will eventually resolve itself. It is less likely to resolve itself with the active meddling of outside parties who seek to advance their own interests. But it is also likely that no state actor will be able to resist intervening. There is just too much history, too much blood, too much guilt to make it possible to avoid meddling. But with an appropriate understanding that the combatants have irreconcilable positions, that the conflict is international rather than fraticidal, and that the civilian populations of all sides all all equally committed to the struggles advanced by their military forces, then containment policies might be crafted to maximize the American, rather than Iranian or Syrian, positions.

Japanese Buddhism in India: Of Subordination and the Politics of Amelioration

It is with some interest that I read a recent story in the English edition of the Asahi Shimbun/International Herald Tribune—Yukifumi Takeuchi, “Japanese Buddhist Reaches Out to India’s Untouchables,” Asahi Shimbun/International Herald Tribune, July 26, 2006, Asia Section at 26. The article describes the work of 70 year old Shurei Sasai, a naturalized Indian citizen of Japanese origin who, for the last nearly 40 years, has been leading a resurgence of Buddhism in India. Known as Saint Sasai (Bhanteji Sasai) by Indian Buddhists (who number more than8 million in a nation of over a billion people), Sasai has worked to convert Indians from Nagpur, an early center of Mahayana Buddhism (that emphasizes works of virtue and compassion rather than asceticism and contemplation). Sasai’s work has produced thousands of conversions (as many as 20,000 during a six month period recently) and the recognition by majority Hindus of a Buddhist presence in the management of Mahabodhi Temple in Buddhagaya, where Buddha was spiritually awakened—no mean feat—after protests and a political awakening of the Indian Buddhist community in the 1990s. Sasai has become prominent enough to earn a place on a government created “minority committee” charged with aiding in efforts to reduce religious conflicts in India.

The story, though, is far more interesting for lawyers than this story might otherwise suggest.

1. The focus of the conversions is on India’s untouchable caste. Sasai has chosen to continue the work of Bhimrao Ramji Ambedkar, formerly of India’s untouchable caste, who led the first mass conversion of untouchables to Buddhism in 1956. Ambekar sought to eliminate the discrimination against untouchable caste Hindus by having them exit from Hindus entirely—through conversion to Buddhism—and then requiring the state to protect these adherents of a minority religion, to equal rights. This strategy continues to have great appeal to the untouchable caste.

2. Affirmative action programs aimed at untouchables have made the actual counting of converts to Buddhism difficult. The article suggests that untouchable caste converts might continue to identify themselves as low caste Hindus in order to take advantage of the current system of affirmative action put in place by the Indian state.

These two elements of the story reveal the strong political and legal implications of Sasai’s efforts and the role of religion in Indian politics and social life. These implications are tinged with a substantial bit of irony. First, the social framework of Indian life clearly makes existence for lower caste Hindus difficult. And because social practices based on religious status within Hinduism is so deeply ingrained within the social fabric of society, social organization itself could be said to be fundamentally tinged with subordination based on religious status. Critical race theory in the United States has done much to reveal the difficulties of eliminating systemic prejudice or subordination based on race. The story of conversion of untouchable caste Hindus to Buddhism reveals the way in which the insights of critical race theory can be used to explain subordination in the developing world as well. Prejudice, subordination and its systemic effects is not limited to the United States and its race problem. It can manifest itself in other forms of differentiation as well. For low caste Hindus, the system produces a situation in which exit—through conversion to Buddhism—becomes a (and perhaps the) principal responsive option.

Of course, this is not the first time the world has seen this sort of cause and effect. Christianity in the Mediterranean world was said to profit from the difficulties of less established sectors of society within the Roman world. Merchants, immigrants from other parts of the Mediterranean, freed slaves, rising middle class people—all those subordinated segments of society proved to be a primary market for early Christianity. The dynamic was similar. Having been excluded from local society—and the political, economic and social structures of that society—these elements of the population made a choice to set up their own self-sustaining (and ultimately competing) social organization. Untouchable caste Hindus converting to Buddhism may face the same social dynamic.

On the other hand, while converts embrace a new supportive community, they continue to face the systemic subordination from majority Hindus. They may, for example, continue to be treated as untouchables, or they may suffer prejudice directed against minority religions. In a society that might be built on majority religion privilege, conversion creates an internal support system but can do little to eliminate the very real effects of subordination in the form of discrimination in economic and political life.

Second, while conversion may alleviate social subordination, political intervention by the state complicates the value of conversion. Untouchables suffer great discrimination. Untouchables convert in order to seek relief from this subordination by placing themselves outside the social/religious system producing this subordination. The state intervenes by seeking to coerce a greater degree equality for untouchables through legislation that distributes social, economic and education goods to untouchables. But this political intervention is available only to those who have remained members, in fact, of the subordinated group. This presents converts with a dilemma. If they proclaim their conversion they may lose whatever governmental benefits they might enjoy against subordination. But if they do not convert, they lose the benefits of a protective community. Yet, whether or not they convert, they will continue to suffer subordination like untouchables. What to do? They must “pass.” Critical race theory again provides insights into the politics and sociology of passing—focusing on passing in the racial context of American society. Yet in the Indian context we see again how the idea of passing can work outside the race context of American life. In this case, untouchables—now Buddhists—must continue to pass for Hindu to benefit from the little protection extended by the state or continue to suffer the systemic consequences of subordination.

Third, the necessity of passing highlights my last point—the difficulty of using political devices like affirmative action to tweak the effects of systemic subordination, the foundations of which remain protected by the state. India may be purchasing majority Hindu privilege by conceding limited and state based benefits to subordinated groups. In return, the state is freed of any obligation to confront the systemic subordination itself. For those who believe that this dynamic is either tied to the West, or to race, the story of Sasai and his Buddhist converts reminds us of the difficulties of mediating between majority and minority in plural societies built on the norms of a single group.

Proportionate Response and the Management of Violent Conflict in International Law

As the war between Israel and Hezbollah continues, the European Union and certain segments of the Western media (by trotting out, for example, the former American Ambassador to Lebanon John Kelly) have been advancing the theory of proportionate response as a criticism of the Israeli action and seeking to use this idea as a basis for coercing Israel to call off its current warlet with Hezbollah. Even Vladimir Putin of Russia has echoed this proportionality theory in calling for a stop to Israeli actions in Lebanon.

The idea underlying this theory of proportionality in international relations is certainly appealing as theory. In the current situation it suggests that while Israel might have been justified in acting to seek the return of its two soldiers, kidnapped by Hezbollah agents, that response had limits. To the extent that Israeli action is not narrowly targeted (judged by the subjective standards of a vaguely constituted international community, it is to be presumed) to obtaining the release of these men, the action would not be proportional and therefore not legitimate. In this context, it is supposed that the Israelis should have taken their cue from American and European responses to kidnappings in Iraq over the last several years, as well as the pattern of responses to similar kidnappings by Hezbollah in the recent past. According to this view, the kidnappings ought to be viewed as a sort of low level banditry requiring some stern verbal measures, perhaps a bombing or two, perhaps even targeted killing (if no civilians are involved), and negotiations leading to prisoner exchanges (if the past is to serve as a guide, then several hundred prisoners in exchange for the two men).

There is a certain logic to this position. It tends to contain conflict. It reinforces patterns of violent behavior that minimizes its collateral effects. It provides both militaries with face saving methods of engagement, and it permits the fighting to continue toward the day when negotiation will lead to a resolution of the underlying conflict. There is a strong socio-political pull for this position within Europe and the United States. Both societies have crafted highly complex and successful legal regimes based on notions of proportionality, due process, fairness and civility. These notions, applied to the internal construction of democratic systems in the E.U. and the U.S. have been extraordinarily successful in ordering the internal life of those political communities, as well as serving as a useful basis for a system of political morals and ethics. Much of what forms the heart of the rules of war and humanitarian law also reflects this notion of proportionality, partially crafted to avoid the excesses perpetrated during the Second World War in Europe.

Indeed, Israel's prior conduct has more or less indicated a willingness to transplant these rules to its conflicts with its neighbors. And it has worked reasonably well, but only to perpetuate conflict a respectably low level, but not to resolve it. And that may be the rub. Systems of conflict resolution designed for communities sharing values, goals and objectives may not translate well to mediate interactions among parties who share little other than the desire to destroy each other. Applied to conflicts like those between Israel and Hezbollah, Shi'a and Sunni Islam in Iraq, or even among the combattants in Sri Lanka, this approach does little more than keep conflict simmering, postponing or even making resolution impossible, or at least not in the interests of the combatants or their allies.

Consider Hezbollah: it has no territorial claims against Israel (except perhaps for the Saba Farms area of the Golan Heights occupied by Israel and claimed by Syria), it primary purpose in its relations with Israel is to work for Israel's destruction and the expulsion of its Jewish citizens. It is also dedicated to the advancement of the Shi'a nation within Lebanon. These positions are foundational and divinely based. Hezbollah has integrated itself institutionally with the state of Lebanon. It is supported passively and actively by wide segments of the Lebanese population.

Assuming that these understanding are roughly correct (and remembering that reality is fuzzier and more nuanced), what does proportionality gain the parties? In this case Hezbollah loses some infrastructure and personnel (through targeted bombing and killings), but infrastructure can be repaired (giving work to the underemployed in the region) and personnel can be recruited (and increasingly so as Hezbollah is portrayed as strong enough to "go against" the "mighty" Israelis). Hezbollah returns a couple of soldiers and receives credit for liberating perhaps hundreds of others. From their perspective Hezbollah has gained much and lost little. It has increased its legitimacy and the support of the population through evidence of its power, through its distribution of jobs and benefits and through its role in the liberation of people who have strong ties to the local population. All of this may also increase its value to other states that might perhaps be looking for a non-governmental entities to do their dirty work for them, in this case Syria and Iran are likely candidates. But Israel gains as well--it has obtained the release of its kidnapped soldiers, it has been able to destroy infrastructure and kill combatants (though because combatants are usually so well embedded in civilian areas will also lose a bit as the number of civilian casualties rise--especially through the death of children and the elderly) and it has maintained at least its own legitimacy within its voting age population. More importantly, it has preserved its relationships with its own set of foreign states interested in managing the events in the area--principally the United States and the European Union (Russian institutional anti-Semitism seems to make them less viable as a partner though more valuable to Israel's adversaries). The United Nations has provided for it an important and open ended mission as monitor/referees within these conflict areas. In addition it can serve as the site of the verbal front of the conflict--a very valuable role indeed. That verbal front, of course, is shared with the global media, for which contained conflict provides a valuable source of viewership, and for local leaders, a global forum (consider the utility of CNN in transmitting the Lebanese Prime Minister Siniora's speech on July 15, 2006 (simultaneously translated for the American audience to which it was broadcast) respnding to the Israeli invasion by calling on the international community to rescue it, and rebuild it). And from the perspective of the management of civilian populations (and especially their utility in the production of communal value), the "innocent" profit since casualties are minimized until the resolution of the conflict in some indefinite future.

From the bigger picture, then, everyone profits to some extent. But nowhere in the analysis is there a sense that such proportional actions will do anything other than reinforce a cycle of these types of activity. It remains in Hezbollah's best interests to kidnap from time to time (or engage in other well modulated acts of violence) and it remains in Israel's best interests to perform proportional negotiation for the benefit of its patrons and the consumption of its electorate. But there is no end in sight, absent the destruction of the State of Israel or that of a military arm of Shi'a Islam. The former American Ambassador, Mr. Kelly, in his CNN interview today, suggested that indeed, this is the consequence, but apparently an acceptable consequence given a fear of the alternatives--large scale regional war.

Perhaps this is the best war to manage conflict which is irresolvable. The emerging legal infra-structure of international law perhaps ought to be focused on the creation of institutions designed to manage conflict rather than resolve them. There are Western models that may prove of value in institutionalizing this reality of international relations: the rules of engagement in Renaissance Italy certainly provides a model of self-perpetuating conflict that never really boiled over very much or very often. There are many benefits to state and non-state actors. But perhaps the greatest benefit is the most frustrating one--postponement of resolution. There is a little of the counter-intuitive here. Why might postponement be a positive value, especially where the parties continue to engage in bounded and sometimes violent conflict in the meantime? But there is a logic to this position. Negotiation can succeed only where differences between the parties to the conflict are not irreconcilable. In the face of irreconcilable differences, the parties might have to be left to their differences, perhaps for a long period of time. This requires a toleration of conflict within strict boundaries. Resolution then becomes possible only when, through changes made manifest over time, the basis of the conflict becomes irrelvant or obsolete. The world can then go about its business. That, in essence, appears to be the European approach as it seeks to institutionalize its approach to crisis management.

But there are risks. An international relations framework of conflict management could easily slide into an international relations of chaos. Conflicts are easier to contain in theory than in fact. The world is littered with examples of containable conflict bursting its boundaries in the Balkans, in Rwanda and Uganda, in South Asia, and the like. The risks may be acceptable for Europe--managing conflict can be profitable and postpone more painful issues. Risks can be useful to Russia, especially as it seeks to firm up its relationship with Shi'a Islam in Iran and cut a deal on its own irreconcilable conflict in Chechnya (a conflict in which application of the rule of proportionality is very much not in evidence). But for the people being "managed," the status quo may be uncomfortable indeed. Yet management appears to be the coin of the realm in the field of international law and relations. To the extent that the global economic system is not threatened, irreconcilable conflict must be left to fester within acceptable boundaries increasingly sketched out by law, custom and practice.

The Isreali response rocks the foundation of this nascent international system of conflict management. From the Israeli perspective, this response might have made sense. It is engaging Shi'a rather than Sunni Islam in Lebanon and it is attempting, by destroying the capacity of segments of the Lebanese population to engage in state and non-state sponsored violence, to make it possible to focus on the resolution of the conflict with the Palestinians (and hopefully aid in the creation of a viable Palestinian state). It may have gambled that its actions would play well among its closest allies and within the Israeli population and that it will be rewarded by its role in the global war by proxies with Iran. And it likely realizes that in the long run, managed conflict based on the current status quo will be disasterous for Israel given the demographic imperatives of the region. Ironically, Hezbollah may welcome this heating of conflict as well--as a means of testing its new military equipment and troops, as a way of cementing its relations with Iran, as a means of destabilizing the Lebanese state and increasing its power within the Lebanese state apparatus, and in its gamble that the rules of conflict management will eventually stabilize the situation well before any disasterous military defeat at the hands of the Israelis. And both sides will use the heated activity in the verbal front of the conflict--in the media, in the halls of the organs of the United Nations, in the press, on authoritative internet sites. Perhaps the success of the Israeli response will be measured by its effect on the status quo from which the conflict with its neighbors will be managed. The coming months will be telling indeed.

Iran’s’ Mahmoud Ahmadinejad, the Hojjatieh Society, and a Chaos Theory of International Relations

The Hojjatieh Society (1) was founded as a religious group dedicated to the destruction of the Ba’hai faith, (2) proved useful to the former Shah for violent and covert assignments, (3) was initially suppressed by the theocratic government of Iran because of its refusal to sanction clerical theocracy, but (4) has made a comeback of sorts now that its members (or at least those sympathetic to parts of its aims have assumed high positions within the clerical and political structure of Iran). For an excellent summary of the origins of the sect, see Mahmoud Sadri’s entry on the Hojjatieh Society in the Encyclopedia Iranica available at http://www.bahai.org/persecution/iran//iranica1.

Much has been made lately (and mostly on the Internet, of course) about the Iranian President’s connections to the Hojjatieh Society. See, e.g., Paul Hughes, “Iran’s President’s Religious Views Arouse Interest,” Associated Press Release, Nov. 17, 2005; John von Heyking, “Iran’s President and the Politics of the Twelfth Imam,” Guest Commentary, Ashbrook Center for Public Affairs at Ashbrook University, November 2005; “The Growing Threat to Bahai’s: What is the Hojjatieh Society?". There were suggestions, not universally accepted, that

“Ahmadinejad and Mesbah-Yazdi [an influential Iranian cleric] allegedly back a messianic interpretation of Islam, in which they hope that the 12th imam, known also as the Mahdi and who is in occultation, will return and restore justice to the world. According to the Islamic Republic News Agency (IRNA), Ahmadinejad told a 16 November national conference of Friday prayer leaders that "our mission is paving the path for the glorious reappearance of Imam Mahdi." The replacement of state officials by Ahmadinejad appointees, furthermore, has led to claims that the Hojjatieh Society, which was banished in 1983, is enjoying a revival. This society espouses similar views on the return of the Hidden Imam, and this would not be the first time that there are claims of a Hojjatieh comeback.” Bill Samil, “Iran: Preparing for the Next Big Vote,” RadioFreeEurope, Radio Library, December, 2005, reproduced by permission at the website of GlobalSecurity.Org.

Much of what has been written is not unusual for groups of this kind—they are rumored to have close ties to the Iranian political and religious elite; they have connections with insurgency groups all over the global fronts between the dar al islam and the dar al harb ((territory of war or chaos, and the name for the regions where Islam does not dominate, where divine will is not observed—though over the last few centuries Muslims scholars and the reality of a divided world have produced a more nuanced set of religious descriptors, see http://en.wikipedia.org/wiki/Dar_al-Harb), including Hamas and Hezbollah; and that they have become a strong force of global anarchism tinged with a religious imperative that makes negotiation difficult.

Much of the discussion about the Hojjetieh Society and its connection with the Iranian Presidency has focused on its effects on Iranian politics—and is especially served up to “explain” the violent anti-Semitism and anti-westernism of the current Iranian president. At worst, the Western media has treated the pronouncements as bad manners (included in things you can believe but must not say in public) or as the machinations of Iranian internal politics (of the sort “he doesn’t mean what he says, this is “code” for some sort of internally necessary political dialogue).

My purpose today is not to dispute the failing of Western analysis, nor its cynical and pathetic forms of pandering manipulation of its own populations for the purpose of preserving some sort of peace at what it deems to be an acceptable price. Instead, I wish to note, with a great deal of interest, the utility of Hojjatieh Society norms as a framework for a different model of international relations. The current Iranian President has suggested that it is possible to ground politics within a framework of preparation for the return of the Mahdi. He has also suggested, as have some adherents of organized groups within Shi’a Islam (including but not limited to the Hojjatieh Society) that it is possible to suggest an interpretation of that political framework that posits that it is in human hands (and perhaps the highest calling of humans) to focus all activity on actions that will create the conditions necessary for the return of the Mahdi. If such conditions include some sort of social, political, cultural or other forms of chaos, then the focus of state action becomes clear.

A model of international relations based on the imperative that chaos must be created on earth in order to accelerate the time of the coming of the Mahdi might consider it valuable to preserve those areas of tension, especially at the fault lines between lands (and peoples) already claimed for the Mahdi and other places (and people). The focus of external relations would not be on peace and ethics, but on conflict and instability. The point of negotiation would be to prolong the space available for preparations necessary to sustain tension rather than to reach consensus and resolution. Equilibrium in world affairs would not be measured by the resolution of conflict but by the amount of conflict that could be maintained smoldering. Internal politics could operate in the same way. A politics of formal toleration would cover the fanning of tension between the righteous and others.

The point of international relations would not be war—war is unnecessarily expensive and decisive. But rather, international relations would have as its focus the maintenance of smoldering conflicts, burning brightly from time to time, but never resolved. For that purpose, modern, western inspired, international law norms—including the human rights and humanitarian law, and the laws of war—could prove immensely useful. These rules tend to limit the intensity of conflict—and to manage the civilian population for the benefit of the ultimate winners (or for the duration, the combatants in control) . Modulated use of incidents, reprisals, accusations of low level acts of human rights or humanitarian law violation all would tend to keep conflict fresh and to involve a large portion of the world community. Where such activity occurs in multiple flash points, then one can easily extend the potential effects of conflict and chaos far beyond the site of actual conflict. When combined with seeming acts of random violence directed at the protected segments of the population (the “innocent” civilians), one might be able to produce a global system of self-sustaining low level conflict, insecurity and chaos of the type that might serve to bring the world closer to the appearance of the Mahdi. Of course, this is not the first time that a cleric, or clerically trained leader, has pursued a policy of contained chaos deploying the tactics of fanning low-level constant violence and instability for national ends. Cardinal Richelieu’s policies in the Holy Roman Empire come to mind. But in modern form, this simple tool of traditional statecraft, wed to religious imperatives, now serves a very different end. No longer a simple tool of state action, it has become the framework itself from which tools are developed and deployed to govern the relations between states and other quasi-state collectives (such as religious communities).

It is with this in mind that one might view from a fresh perspective the shape of current Iranian foreign policy, and its manifestation in the support (of what type remain necessarily murky) of the recent kidnappings of IDF soldiers from the Northern and Southern border areas of Israel, of the bombings in Mumbai, of the break-up of Iraq along ethnic lines, and the recent (so easily forgotten in the Western media after the end of tourist season) resumption of violence in Sri Lanka. From the perspective of the Iranian President, perhaps, resolution of conflict, especially one as distracting and globally consuming as that between the Jewish people and the Arab Islamic nation, focused on claims to control of Israel, would be disastrous within the framework of state centered chaos. All out war is unnecessary and dangerous, but a sustained, and sometimes high level, of conflict, is to be welcomed. To the extent that a hotter level of conflict produces the inevitable civilian casualties, instability is extended well beyond the borders of the conflict. And because of the geographic position of the conflict, its effect on the underbelly of Western power—economic globalization based on a deep and sustained system of peace, security and free movement—is significant.

Currently, the localized “hot” conflict between Hezbollah in Lebanon and Israel provides an excellent example of contained conflict in the service of chaos. The conflict is contained because the combatants were carefully chosen—Hezbollah represents a Shi’a presence in the heart of the Sunni Arab nation. It represents the interests of Iran (and Syria) against those of the core regional Sunni states: Saudi Arabia, Egypt and Jordan. A hot fight between the Jewish people and Shi’a serves the purposes of Israel but also those of the Sunni nation. Most important, it distracts Israel from its recent push to destroy the Hamas led government of Palestine. At the same time, the conflict permits verbal condemnation by all Islam. But all this serves a Hojjatieh perspective well—it serves to destabilize a skittish West, disrupts patterns of international trade, kills Jews, confounds European foreign policy (including the accession policies toward Muslin states like Turkey), divides Islam, and furthers acts of martyrdom that together may help hasten the return of the Mahdi. To some extent it may also serve to deepen the war between Sunni and Shi’a Islam in what is left of Iraq, signaling the willingness of the Sunni Arab nation to protect its own. More chaos. To the extent that the conflict remains active, and contained, it serves the interests of Hajjatieh. For them, negotiation is a necessary tool in the efforts to continue to keep conflicts of this scale smoldering. The object of negotiation (that will inevitably proceed) will be to institutionalize the basis of conflict rather than to find a resolution. An international relations of chaos sees the object of negotiation as the establishment of conflict sustainability.

For states that do not share this view of international relations, this hypothetical position of the Iranian President (and other portions of the Iranian elite) could pose a problem. Where states involved in conflict do not share the same foundational understanding of conflict, where such states do not share the same value of conflict resolution, and may not share the same vision of the optimal relations between peoples, resolution may become impossible. In such a case, where state action is actually produced by millions of individuals, larded throughout society and contributing to the implementation of one or the other framework of international relations “on the ground,” it may be impossible to strive for resolution as we have come to understand it in the West (and I do not mean to suggest either an orientalist perspective or a necessary East/West division; I merely acknowledge the origin and basis of current international relations and law principles in Western concepts and values). For one perspective on this conundrum, see Larry Catá Backer, The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment, Penn State University International Law Review, 21:509 (2003).

Of course, it seems clear that most organized communities would tend to avoid at least a formal embrace of a chaos theory of international relations. What the past several weeks has demonstrated, however, is that most organized states cannot resist (1) cultivating this theory among sub-groups within their or allied with their state system, and (2) thinking that chaos-theory-embracing organizations can be used as instruments of state power (to be put away when no longer convenient). But history seems to suggest that this is a risky strategy indeed, and modern international law has been moving toward the position that indirect supporters of global action that is inimical to basic human rights and humanitarian law may or should be held responsible as principles. The recent almost completed trials of Slobodan Milosevich suggest a possible framework for this approach, though I am suspicious of its application in that case.

But three are really no incentives for states to avoid recourse to the adherents of chaos theory to “cheat” outside the rules of modern international law and international relations. Sadly, what the next several weeks will demonstrate instead is (1) that no state is willing to give up the power to use chaos theory when it suits them, (2) that the use of such power is extremely risky, especially where its adherents might be happy to see the destruction of the entire state system as a long term goal, and (3) that no state will actually be called to account for setting chaos theory groups in motion, whatever the nature of these groups’ violation of the laws of war, of human rights or humanitarian law.

With no incentives available against states that are effective, it may be time for international law to pay more attention to non-governmental organizations. The events of the coming weeks should suggest that, just as in the economic sector the international community is moving to vest economic collectives (especially multinational corporations) with status as subjects of international law, so should international community vest as subjects of international law those non-governmental organizations acting as agents of or otherwise exercising political powers traditionally exercised by states. The result would complicate the state system, perhaps even explode it as a formal matter. But global organization has been moving in that direction for decades, and certainly since the end of the Second World War. Internationalization and devolution of power is very much in the air. The obligations as well as the privileges of asserting political power, and especially the coercive power of violence, ought to be devolved and internationalized as a formal matter to the same extent.