The Eleventh Commandment: Thou shall not strike down the Ten Commandments

The Supreme Court will have to decide whether the display of the Ten Commandments breaches the constitutional clause of non-establishment. Bush's administration has already taken a clear stance calling the ten commandments: "a uniquely potent and commonly recognized symbol of the law." In other words, the defence claimed by the administration puts the text of the ten commandments in the American historical context, and argues that within it the document has played a key role in enhancing the image of the law.

Paradoxically, by using a secular argument of that sort, Bush's administration undermines the deep religious value of the text of the ten commandments. Its value does not belong to a contingent, local historical experience. It goes beyond that. It is not a symbol of the law, but it is a deeply religious symbol. The two would better not be conflated.

Theoretical background of “Proletarian Expropriation”

How tolerant may a democracy be towards the enemies of democracy?

Are proletarian expropriators enemies of democracy or its challengers? IS there any difference between the two concepts?

Juergen Habermas points out that there is a thin line between an “enemy of liberty” that can be justifiably excluded from the public sphere and “radical defenders of democracy” that resort to extra-legislative means (i.e. civil disobedience) to fight for their goals. Further, Habermas thinks that civil disobedience, should be considered a continuation of legal and institutional process by other means and should be recognized under the following conditions: that the radical dissenters that resort to civil disobedience “justify their resistance by citing constitutional principles” and express it by non-violent means.

In other words, in order to be heard both in regular democratic procedures and in the wider public sphere that might include civil disobedience, arguments must be rational, in the sense of the generality test. Through his generality test Habermas would exclude a racist from the public sphere, “a racist should not be tolerant, he should quite simply overcome his racism.” What about proletarian expropriators?

First, concerning the ideal which both are defending it can be argued that there is a clear difference between a racist (fighting for a discriminatory society) and a proletarian expropriator (struggling for a world where substantial equality will reign). Granted, in terms of politics as “art of the possible”, communist strategy is dubious. Radical egalitarian goal, when pursued by the state (i.e. Communist state) did not prove as noble as the initial ideal, because of the high discrepancy/incompatibility between the end and the means (i.e. difference between ideal of classless society and dictatorship of the proletariat).

Proletarian expropriation as a form of civil disobedience is surely different from the state imposed equality?

According to Habermas’s definition of limits of civil disobedience it seems that “proletarian expropriation” would not qualify. Still, there are more radical definitions of democracy that would allow going beyond Habermas’s positivist constitutional limits.

Chantal Mouffe and Ernesto Laclau, for example, call such model of democracy “agonistic pluralism”, or “agonistic democracy”, referring to the political regime that “stresses the importance of acknowledging its conflictual dimension.” Agonistic democrats wish to abandon the fiction of the Habermasian power free public sphere, in the sense that they want to cease considering power as external to the identity forming process but wants to emphasize the fact that power is constitutive of identities themselves.

Their democracy is about challenge, more then about security.

There is nothing more persuasive and illustrative of a liberty of a particular society as the expressed liberty of the intolerant. As it was mentioned in a metaphor of a tight-rope walker, the art of good exercise of state power is the art of the toleration of the intolerant or in other words a careful balancing of the wish to protect the constitutional order of the given state and the acceptance of the risk of its destruction. A drive towards absolute security is the main enemy of the ideal of a liberal-democratic state. This is the essence of the agonistic democrats approach

The more tolerant are we towards the intolerant and challengers of the system, the more liberal the system is. Balancing risk and a desire to protect the system can be conceived in terms of an artist walking on a tightrope. Abrupt moves, such as crackdown on the intolerant (if not absolutely necessary to defend the very liberty of the polity) are not desirable for they are bound to lead to the destruction of the liberal character of the polity, using the metaphor they are bound to lead to fall and grave injury of the artist himself and the spectators gathered around the tight-rope.

Agonistic democrats would tolerate proletarian expropriation as a form of civil dissobedience or at least their attitude towards this practice would be much more lenient.

Suggested reading:
Ernesto Laclau and Chantal Mouffe, Hegemony and socialist strategy : towards a radical democratic politics, Verso, London, 2001.
Ernesto Laclau, “Politics and the Limits of Modernity”, in Thomas Docherty (ed.), Postmodernism: A Reader, Harvester, New York, 1993.
James Tully, “The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy”, The Modern Law Review, Vol. 65, No. 2, 2002, pp. 204-228.
James Tully, “The Agonistic Freedom of Citizens”, Economy and Society, Vol. 28, No. 2, May 1999, pp. 161-182.

US and EU: So different?

This blog entry wishes to continue the debate on the future of transatlantic relations started by Euan MacDonald in his "Bush in Europe: Towards a Genuine Rapprochement? ". In an article published in the German Law Journal Juergen Habermas says,

The “universalism” of the old empires was of this sort, perceiving the world beyond the distant horizon of its borders only from the centralizing perspective of its own worldview. Modern self-understanding, by contrast, has been shaped by an egalitarian universalism that requires a decentralization of one’s own views to the interpretive perspectives of equally situated and equally entitled others…If thousands of Shiites in Nasiriya demonstrate in equal measure against both Saddam and the American occupation, they express the truth that non-Western cultures must appropriate the universalistic content of human rights from their own resources and in their own interpretation, one that will construct convincing connection to local experiences and interests.

For many United States foreign policy under George W. Bush operates on the logic of “universalism” of old empires, while the European Union, Common Foreign and Security Policy, however, uncoordinated and often vague, comes closer to the “egalitarian universalism.” Through, its policies of conditioned enlargement and generous economic aid the EU proposes, but do not impose, the model to follow.
Would one make this distinction 30 or 40 years ago? Did we (EU and US) grow so different over the last decade, especially after the second Iraqi war? Is EU policy tending towards “egalitarian universalism” because of a genuine abandonment of old imperialist policies or because of a simple lack of power to assert itself in the way US does? Are we growing so different as far as our internal political and legal systems are concerned? Is the difference between the US and EU purely the product of the current global balance of power as the realists would suggest? I prefer to leave these questions open for the moment.

Bush in Europe: Towards a Genuine Rapprochement?

Bush’s visit to Europe is being seen by many as an attempt to repair relations after the low point of the Iraqi conflict. Certainly, his tone thus far, in particular in the speech he gave in Brussels yesterday, has been conciliatory; and, for the most part, well received by the European politicians, press and public. Certainly, there seems to be no question this time of either punishing the French or Ignoring the Germans (although the Italians very nearly fell into this latter category, with only last-minute action by Rome ensuring that Berlusconi was on the list of European leaders chosen to "lecture" Bush on a variety of subjects; see here). The Russians, however, will, it seems, still be forgiven: despite some strong remarks earlier concerning Putin's democratic credentials, it is assumed that, when the two leaders meet tomorrow in Bratislava in Slovakia, the emphasis here also will be on healing rifts and building friendly relations.

Bush has been quite clear about the purpose of his visit: yesterday's speech was absolutely full of references to the "transatlantic alliance" and the need for Europe and America to cooperate in the face of complex global challenges. In one of the most striking passages, he stated that "No temporary debate, no passing disagreement of governments, no power on earth will ever divide us". But can we really refer to the disagreements, primarily but not exclusively over the Iraq war, as simple passing disagreements amongst temporary governments, to be offset by the essental, eternal, fundamental agreement on the values of civilised humanity? Can words like these really repair the damage done?

Certainly, there are a number of factors that have combined to make this an opportune time for an attempt of this sort, as the perceived success of Secretary of State Rice's visit to Europe last month demonstrates. The Iraqi elections are widely regarded to have been a success, contributing to a significant diffusion of tension in the area that would likely have been the most vexed otherwise. Moreover, there are signs that the death of Arafat has opened some doors in terms of the peace process between Israel and Palastine, another area of frequent transatlantic disagreement. Lastly, relations between France and the US, which was undoubtedly the most bitter diplomatic battlefield during the war, have certainly been improved by the project of the jointly-sponsored Security Council resolution calling for the withdrawal of Syria from Lebanon (a topic that has, of course, become all the more pressing since the assasination of Hariri last week). At no point since the intervention in Iraq has the reality of the international sphere been more favourable to transatlantic rapprochement.

It is, however, not quite as simple as to suggest that we can now look forawrd to an era of transatlantic harmony in international affairs. As many commentators have noted, several real divisions remain; and the fragile sense of goodwill engendered by the fortuitous coincidence of several pieces of good news on the global front may not, will not last forever. In this sense, to argue, as Bush did, that the problems were mere transitory glitches, essentially unimportant when compared to our shared values, is as ultimately reductive and utterly unhelpful as it is to argue that Europe and America are hopelessly and eternally divided. Neither position can help us in furthering our understanding of what has happened, or what is likely to happen, on the international level. As one Guardian article has noted (here: ignore the analogy between Bush in Europe and Nixon in China at the beginning, which is stretched to say the least, and there are many interesting points in it), major issues such as climate change, the EU's relationship with China, and, perhaps most importantly, the correct way to deal with Iran (and its now ally, Syria), still exist; in terms of the latter, while both sides are "committed" to diplomacy at present, there can be little doubt that the Americans are deeply sceptical of its potential for success - and preparing for the possibility of military action in this area. If that should happen, the much-trumpeted goodwill and conciliation of the last few days will be very quickly forgotten. The EU-US rapprochement that we are currently witnessing still depends, very much, on the unlikely continuation of the recent good news on the international front in the areas that I have mentioned. It is, unfortunately, likely to be just as transitory.

Capitalist use of Proletarian Expropriation

For new developments concerning proletarian expropriation check the blog called Harry's Happy Hamster Home. In the article "Recuperating 'proletarian expropriation'" (Monday, January 31, 2005) the author explains how an advertising agency in Rome launched a campaign which promised to potential companies a unique opportunity to publicize their business. This is to be done through organising false incidents of 'proletarian expropriation' against a company which is ready to pay from €5000 upwards. In this way the comany gets into the newspapers, while the organizers of false proletarian expropriation earn money.

Apart from being, an example of ironic malleablity of capitalism, one could also say a confirmation of the human nature, the example of 'false' proletarian expropriation begs interesting legal questions. Would the status of the 'false' and 'real' proletarian expropriator be different in the sense of criminal law responsibility?

The Great Debate on the European Constitution

The 25 European member states are engaging in the preliminary debates on the European Constitution. Some countries have already ratified the text (Hungary, Lituania and Slovenia). Some others will do it very soon (Italy). But there are also countries that will face dramatic choices, such as the United Kingdom. For those interested in domestic debates on the ratification of the European Constitution, have a look here.

Stay in Guantanamo = More torture?

Judge Green recently ordered a stay in the Guantanamo habeas cases. The government argued, plausibly, that a stay was appropriate because her recent ruling was on a controlling issue of law and that this issue was arguably decided incorrectly (in light of Judge Leon's decision).

But can we really afford a stay in these cases where information about torture is coming out nearly ever single day?

Assisted Procreation and the Vatican

The Vatican does not like assisted procreation, this is well known. The arguments in support to that are, however, very weak. A prominent member of the Vatican Academy for life, Elio Sgreccia, put forward the following ideas: assisted procreation breaches the natural right of the child to have only one father and one mother. Moreover, the natural right of the child to know who are their biological parents is violated.

These are not good arguments. First, marriage is presented as a natural institution. In support of this point, it is said that most of the constitutions consider marriage as an important institution within our societies. Needless to say, the fact that an institution is important within our societies does not make it 'natural.' To the contrary, the argument from constitution merely acknowledges that marriage is not a natural institution, but an artificial one, created by our laws.

Second, the right to know one's biological parents is parasitic to other more important interests. As such, we may agree that it is important to protect it. But we may just as well balance it with the interest of the donor in not disclosing his identity (His reasons for donating should not concern us). Moreover, the fact that the right to know one's biological parents is limited can hardly justify the limitation of the interest of the parents to conceive a child. Of course, the parents can still adopt a child instead of asking for assistance, as the Vatican commentator argues. I am theoretically in favour of that too, though I think that an individual should be free to decide whether to opt for adoption or assisted procreation. More interestingly, the very point of adoption undermines the strength of the argument from the natural right to know one's biological parents. For adoption procedures limit the disclosure of the identity of biological parents.

Restatements and International Law Codification

The recent death of Allan Farnsworth, the architect of the (Second) Restatement of Contracts, has spurred a retrospective evaluation of the value of the Restatement Project. In this vein, I think it would be valuable to extend this re-evaluation to the role of the International Law Commission and its ongoing projects involving the codification of customary international law.

Under the ILC's founding resolution the ILC was empowered to both "codify" current practices found in customary international law as well as aspects found in the "progressive development" of international law. In theory, the dichotomy of codification and progressive development is supposed to be encapsulated in the creation of conventions of "draft conventions." In reality, the ILC has been unable to straddle these two responsibilities and has stuffed substantial additions of progressive development into its codification efforts. As such, the ILC can claim that its conventions and commentaries do not suffer the problem Randy Barnett specifies of being limited to a frozen snapshot of the development of law. However, an inverse complaint is appropriately leveled at the Commission's work. Specifically, the ILC consistently attempts to bootstrap immature notions of what could become CIL directly into its codification.

I understand that the members of the ILC and legal academia generally have a proclivity to build beyond the limits of a building's foundation, but just as young academics should know "the classics" before playing with the bells and whistles of law, international law needs to expand and strengthen its foundation before wishing new law upon a system unequipped to handle it. The taint of notions clearly not present within CIL taints the entire codification process. One of the reasons that the Restatement project could flourish is the enormous number of samples of common law upon which its authors could draw. International law does not yet have the depth nor consensus to build an exhaustive codification of laws which have not been sufficiently mined and explored. In this sense, it seems to me that international law would benefit from a true codification of customary international law that could be drawn upon with less controversy and more consensus.

TV: Pushing Back The Boundaries, or Cynical Exploitation?

Channel 4, widely viewed as the most innovative of the UK’s terrestrial channels, is to put a new twist on a genre that is fast becoming clichéd – by producing a self-proclaimed “Guantánamo-style” torture reality show. The programme is part of a 4-part series examining the use of torture in the “war on terror”. The Guardian notes that:

Using an east London warehouse and declassified internal documents obtained from US sources, programme-makers mocked up conditions as they are inside Guantánamo, before subjecting seven volunteers to some of the milder forms of torture alleged to have been used by US authorities.

The programme exposed the volunteers, three of whom are Muslim, to 48 hours of "torture lite" including sleep deprivation, the use of extreme temperatures and "mild" physical contact.

As at Guantánamo and more vividly in Abu Ghraib, the volunteers were also subject to periods of enforced nudity and religious and sexual humiliation.

The seven male volunteers, one of whom withdrew after just seven hours suffering from hypothermia, were recruited initially by adverts asking how "hard" they were.

My own initial reaction to this is a deeply ambivalent one. On one hand, the potential benefits are clear: a programme such as this could serve to translate the news concerning the acts of torture into a more immediate, more pressing medium than has previously been available; a medium that (perhaps unfortunately) allows many of us today to relate or empathise better with those whose maltreatment we are aware of. On the other hand, it would be extremely easy for it to become nothing more than a cheap and cynical caricature of the real issues involved, aimed more at boosting viewing figures than increasing awareness. The jury is still out on this one; but, given the Channel’s history of producing provocative and intelligent programmes – and the fact that the show is to be presented by its respected news anchorman, Jon Snow – there are certainly grounds for hope that it will be a worthwhile broadcast, rather than a simply crass one.

Only, of course, if the public gets to vote for the winner…

Sistani, Rousseau, Schmitt, Sharia and Democracy

Probable electoral victory of the Shiite electoral coalition “ List 169”, endorsed by the great Ayatollah Ali Sistani (here, here), raised many additional doubts about the future of Iraq. Possibly the outcome of the elections that were proclaimed by the organizers, as the celebration of democracy in Iraq, might prove to be highly undesirable for the governments of the occupying coalition. It is unsure whether the country will become a theocracy or a democracy. Despite the fact of being portrayed in the press as the political moderate and a passionate reader of Rousseau, Sistani proclaimed that the future constitutional order of Iraq should be based on the Sharia. In other words, Sistani reportedly claimed, “Islam should be a framework for governance and that, where secular politics risks leaving that path, the clerical authority would intervene” (here). Arguably, Sistani believes that people should be able to decide for themselves but that the ultimate authority however, belongs to the religious council (marjiya), which has the authority to ultimately decide in the interest of people (or God). Other, however, think that Sistani rather supports the strategy of the quietist school of the Shiite Islam (that tends to separate religious and the political) and that he remains opposed to direct involvement of religious clerics in governing the country (thus opposed to the development of the Iran scenario). Whatever will be the outcome of the Iraqi elections it remains interesting to briefly address the theoretical nature of the opposition between Islam and democracy.

There are two major schools of thought regarding the issue of the relationship between Islam and democracy (here).

First condemn any kind of power that is not based in the divine sovereignty. In the case of such interpretation God delegates sovereignty, authority (hakimiyya ) to the people. Democracy, is according to this view different, because is substitutes divine sovereignty with popular sovereignty. In this way, it violates the absolute principle of monotheism (tawhid) that, according to the position that considers Islam and democracy irreconcilable, entails that legislation is the sole prerogative of God. Thus, democracy presents a form of idolatry. In democracy, the concept of the People presents itself as a new alternative to God and it is for this reason that it is unacceptable to the above-mentioned position. Democracy transfers every particular voter into a kind of semi-god.

Second school sees no direct contradiction between Islamic religious teaching and democracy. For them, the first interpretation of Islam actually presents a superficial understanding of the concept of “God’s rule” (Hukm Allah). God does not 'come down' and govern people directly, but delegates his authority to the people. Hukm Allah was thus, exactly supposed to perform the role opposite to that it plays in Iran or in the doomsday scenario of Iraq. Namely, it appeared as a revolutionary principle fighting against the monopolization of power by the clerics and oligarchy and presented a way to empower the people.

It can be argued that the aforementioned tension appears partially also due to the ambiguous nature of the concept of sovereign power in democracy in Western political thought. Carl Schmitt and Jean Jacques Rousseau would probably agree, although not for the same purposes, with the Islamic clerics who consider democracy a form of idolatry. For Carl Schmitt, modern concept of democratic state sovereignty is built on the example of monotheistic religious dogma. Schmitt argues, “all significant concepts of the theory of the modern state are secularised theological concepts…the juridical formulas of the omnipotence of the state are in fact, only superficial secularisation of theological formulas of the omnipotence of God.” (in Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, MIT Press, Cambridge, Mass., 1985) Rousseau similarly wrote about the politization of theological concepts in the process of creation of concepts such as sovereignty. Secularism is interpreted as La Religion Civile (Maybe Sistani was concentrating on these passages of Rousseau?).

It is due to the mystic nature of secularism and the concept of the Demos that both Islamic religious clerics and Christian fundamentalist (both Orthodox, Protestant and Catholic) can, at times efficiently, offer a theoretical challenge of the concept of democratic legitimacy. Is this a signal that we need to search for new theoretical formulae of the legitimacy of state power? Yes.

I good point of departure is to separate democracy as a system of indirect (or direct) decision making from the theoretical populism that offers Demos (People) as the only source of legitimacy of state power (see).

Collective Action Problems, Free-Riding and Enforcement of International Law

Peggy McGuiness at Opinio Juris hits right at the heart of compliance and enforcement of international law. The question is this (to paraphrase): We know why nations sign onto human rights treaties they do not intend to comply with, but why do other nations allow rogue nations to violate the commitments these nations have voluntarily undertaken.

To take this a step further, I think we know a bit about why many nations do not endeavor to enforce international law, but we have not learned how to overcome these obstacles.

In my view, the main problem as to why nations sign onto treaties they do not intend to comply with is the absence of cost. Any political cost in being a member of a treaty you have broken is offset by the political advantage of the publicity received by signing onto the treaty in the first place.

However, this cost calculation is inverted in the enforcement quandary. Enforcement is ENTIRELY about cost. Who will spend the money and manpower necessary to engage in the monitoring, peacekeeping, and risk political prestige in the case of failure. Each nation is advantaged by its peers extending their resources to enforce international law while maintaining their own resources. This free-riding problem is exacerbated by the monopolistic UN scheme which discourages other collective action. The UN doesn't possess money OR manpower, but rather only the willingness of its member states to risk their own. In turn, the willingness of member states to spend their own political and real capital is set upon a political house of cards in the Security Council. As a result, the self-interested willingess of some nations to intervene is precariously perched upon the self-interested power of the Security Council nations. Is it any wonder enforcement is sacrificed?

A serious restructuring of the UN absolutely requires an implicit understanding of the cost obstacles and procedural hurdles to intervention. Clearly a balance must prevail, but there is no doubt that right now the international system is balanced heavily in favor of inertia.

Freedom and Liberty

Is there a difference between Freedom and Liberty? This is the question that David Hackett Fischer attempts to answer positively in a recent article of the NYT. He starts from the ethimological differences of the two words. Liberty comes from latin (libertas), while Freedom has the same Indo-European root as friend, and it means 'dear' or 'beloved.'
From there, he suggests that liberty has an individualistic sense, whereas freedom has a more communitarian taste.
The ethimological analysis is certainly correct, but I really wonder whether it can justify a more substantive understanding of the two terms. English, as Hackett Fischer acknowledges himself, is the only western language that displays such a distinction. Yet, in Italian, Spanish, German, and French, we do encounter various meaning of 'liberty' , which encompass the two types cited above corresponding respectively to Freedom and Liberty.
More interesting would be to explore how many meanings were attributed to each of those terms and for what reasons. For instance, when Bush refers to Freedom, it has Orwellian overtones more than anything else; considering Bush's administration record with the Patriotic Act, Abu Ghraib and Guantanamo, a word like Freedom sounds exactly like oppression.

On the Arbitrariness of Rules and Denials of Natural Justice...

... A small yet significant example from the world of sport.

Rugby union has for some time now been using video replays to assist referees in making difficult line-calls in important decisions. Now, whenever a referee is unsure as to whether, for example, the ball has been correctly grounded or not, he simply signals for the 4th umpire, who watches the television replays and makes the decision. The system is widely viewed to have been a success, ensuring the "justice" of controversial decisions.

However, like all rules, a balancing act is necessary; here between the drive for "justice" and the wish to avoid impeding overly the flow of the game. Thus, the use of video replays has been limited to examination of what happens in the scoring area only. Other calls, regardless of importance, do not fall within the jurisdiction ratione materiae of the 4th official.

Let me illustrate the essential arbitrariness of this rule, and the concomitant denial of justice. Consider the following example, selected at random from yesterdays international matches: Scotland lead France, in Paris, 9-6 with 10 minutes to go. Suddenly, Scotland break away, and think they have scored - a try that would almost certainly win them the game. However, the touch judge calls them back, claiming that the player had put his foot out of play before grounding the ball. Video replays prove that this simply was not true; however, because the line in question was the touch line and not the try line, the decision cannot be referred to the video referee, and the faulty decision stands. Five minutes later, the French get a lucky break and score a try - the validity of which this time is, ironically, confirmed by the 4th official - which seals the victory for them. The two cases seem identical in terms of justice - how can the simple question of which line is involved be ethically significant? However, pragmatic considerations intervene in a manner that can only be described as essentially arbitrary, and Scotland lose (despite, it should be said, a heroic performance).

Bitter? Me?

Authority and school in France: from philosophy, to politics to reality TV

Charles Taylor begins the second chapter of his book The ethics of authenticity by pointing out the popular success of one of Allan Bloom’s books. He then goes on to explaining why that type of political philosophy – a refined conservative approach I would say – touched a chord. A. Bloom was reacting to moral relativism, characteristic of the state of mind of today’s educated youth, which he saw as a sort degenerated offshoot of individualism. According to Charles Taylor, if such a point of view did struck a chord it is because of the malaises of modernity (“this features of our contemporary culture and society that people experience as a loss or a decline, even as our civilization develops”).

Throughout the entire book Charles Taylor points out the reciprocal influence of philosophy, society and politic. He doesn’t go explicitly into the causal links between theses 3 spheres but he shows that today’s return to a conservative culture is a reaction to the disoriented progressivism of the past generation.

The validity of Charles Taylor’s understanding of the conservative turn in society, in politics as well as in philosophy, is confirmed by the situation in many countries. France is a good example and the topic of education and its relationship with authority is particularly telling.

Until recently, the main conceptions on education were greatly influenced by the events of 1968 and the philosophical doctrines that accompanied them. Thinkers such as Foucault, Derrida, Deleuze, Althusser, Lacan and Bourdieu are unquestionably the theorists of that period and in terms of influence on the academic sphere’s, the media, the public opinion and the political parties their ideas were quite dominant until the mid eighties. The recent death of Bourdieu and Derrida symbolizes the turnover that has been taking place since then. The new generation of influential philosophers is composed of moderate social democrats (such as P. Rosanvallon and M. Gauchet) on one side, conservative Kantians (L. Ferry and A. Renaut) and Straussians (P. Manent) on the other. None of these authors have a Marxist background and none claim the liberal heritage of 68. On the contrary: L. Ferry and A. Renaut are the authors of a book entitled La pensée 68 which is precisely a critique of the conception’s of the previous generation of philosophers[1]. They denounce a potentially fascist individualistic relativism that, according to them, has left the next generations without moral convictions, and society without order. The remedy is a return to values and to authority based on those values.

Since they wrote this book in 1988, A. Renaut and L. Ferry have gradually reached positions of political power. The former was the President of a group of experts that wrote the programs in Philosophy, taught in undergraduate schools while the latter was the previous Minister of Education. Before he was thrown out of Government, for lack of political skill, L. Ferry tried to reform the French educational system in order to bring back authority in school[2]. The professional politician that replaced him has been asked to continue in his footsteps.

The conservative ideas regarding education first reached the domain of philosophy, and then they entered the political spheres, today they are spreading through society. I am no sociologist to identify precisely the ideas on education that are now popular in French society but there are strong hints of a conservative turn there too. Not least of all the policy of the French government on the subject. The popularity of a particular TV show was however the latest indication of the reality of the phenomenon. And it was, appropriately, a reality show. Le pensionnat de Chavagnes was supposed to be a school of the fifties in which young girls and boys in uniforms learned the disciplined ways of the pre-68 schools of their grandparents. The authority of the professors in this fake establishment was based on discipline through threat, sanction and humiliation. This reality TV show was the second most popular one all year, as it regularly attracted 1/3 of the audience. A real performance for an entertainment which consisted in showing children learning to keep quiet in class while some teacher from the past was trying to force grammar rules into their modern heads. Soon, serious TV shows and newspaper articles followed in which the question of Authority in school was debated by politicians, teachers, sociologist, researchers etc. Thus the debate had reached all ramifications of society.

I am sure that this is only an example of a much wider phenomenon that can be witnessed in very many countries. In France we are so far fortunate enough that only vaguely neo-kantian philosophers have reached positions of power, in other parts of the world the philosophers in charge are the students of L. Strauss.

---

[1] Luc Ferry, Alain Renaut, La pensée 68, Essai sur l’anti humanisme contemporain, Folio, 1988.

[2] During a Press Conference given in May 2002, the newly appointed Minister of Education, Luc Ferry, listed the priorities of his policy designed to remedy the problems encountered by the French educational system. In position number three came dealing with authority, security and violence.

CIL in Green's opinion, V. II

JMoore of Jurispundit writes in response to my earlier customary international law post: Good point. But how fruitful would an examination of CIL been? The argument that CIL provides for habeas and other rights for non-state actors in my opinion thinly reinforced. Do you disagree?

I agree with the reader to the extent that a CIL basis for U.S. habeas rights present in the constitution and by statute would not have been fruitful. In essence, the Judge's writings on habeas issues was, and should be, an assessment of U.S. habeas law. But I also believe that there is a very plausible argument that CIL DOES provide for greater due process than was given and that Judge Green prescribed. One difficulty the judiciary is having in this circumstance is an lack of jurispudence dealing with non-state actors in a armed conflict ("war") setting. This is precisely because the U.S. does not have much experience in this realm. Other regions (think Northern Ireland among many, many others) have much more experience with non-state terror and CIL in the realm of international humanitarian law generally could definitely enhance detainee rights if examined.

Now it is also a plausible argument (a la Jack Goldsmith and Curtis Bradley) to say that CIL cannot be applied in U.S. courts. Either way you cut it, Judge Green's REASON to not examine the CIL claims was faulty.

Comments on the "Proletarian Expropriation"

A young American post-graduate philosopher made a challenging but rather predictable critique of our blog entry on the "Re-emergence of proletarian expropriation". For his humorous comment see "Proletarian Expropriation, or Rationalizing Theft". Us Serbs, Italians, or should I say like our American commentator does, "Wacky Europeans", encourage such comments of our articles. We are glad that we are in this way managing to create a Transatlantic forum on interesting legal and philosophical questions.

Individually Pursued Genocide in the Sudan

Now that the International Commission of Inquiry on Darfur (led by Antonio Cassese) has issued its report on whether the killing in the Sudan constitutes genocide, most legal commentators have shifted their attention to whether the perpetrators of war crimes in Darfur should be referred to the ICC or some other international / hybrid / national tribunal. This is a worthy debate, but I think that an interesting issue of the substantive law that would create the background of that debate still needs to be addressed. Specifically, if the government was not pursuing a policy of genocide (which the Commission believes) can individuals be prosecuted for genocide?

Para. 641 of the report reads:

The Commission does recognize that in some instances, individuals, including Government officials, may commit acts with genocidal intent. Whether this was the case in Darfur, however, is a determination that only a competent court can make on a case-by-case basis.

This implies that an individual, acting on his own accord (or at least his own "intent") could be guilty of a genocide as a war crime. It is true that the crime of genocide is essentially an intent crime, meaning that a perpetrator has to engage in (1) killing (2) by a protected group with (3) genocidal intent. There is no established requirement that the perpetrator have the means or actually accomplish a substantial number of killings of the targeted group. The absence of such a requirement (to me) lessens the impact of a genocide crime (which I believe should be one of an organization made of individuals) to the mere individual bad acts (which should be read as war crimes, but not labeled or punished as genocide). There is something inherently and extremely nefarious about an organization (however loosely knit) planning and executing an agreement to target a group of people for extermination that simply is not matched by the inherent evil present in an individual engaged in a war crime. If this were not true, the holocaust would not quite be as horrifically mind-boggling as it is, and instead would be akin to the insane acts of evil individuals.

Customary International Law in Green's Opinion

I can't restrain myself from another post on Judge Green's opinion in the Guantanamo Bay cases.

On p. 74, Green rules:

Finally, having found that all detainees possess Fifth Amendment due process rights and that some detainees possibly possess rights under the Geneva Conventions, it is unnecessary to look to customary international law to resolve the petitioner's claims. See The Paquette Habana, 175 U.S. 677, 699 (1900) ("where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations").

The dismissal of the customary international law (CIL) claims based on these grounds seems rather suspect. For one, the presence of some rights (Fifth Amendment / Geneva Convention) does not exclude the possession of others under CIL. Also, this calculation ignores the fact that Green excluded non-Afghan fighters from the GC claims, which means that there is an entire pool of non-Afghans detained in Guantanamo with (under Green's ruling) no legal structure determining their fate. This seems to be the prototypical circumstance where CIL was envisioned to "fill the cracks" of the treaty-based legal scheme.

No Prostitution = No Welfare Benefits in Germany?

"If you don't take a job as a prostitute, we can stop your benefits."

I'm fairly certain that the above story in the Telegraph does not require extensive comment to demonstrate its utter absurdity, but I think the real question is to what extent government policy can address less extreme problems of welfare reform. An unwillingness to sell sex for money is only an extreme example of a willingness to give of yourself in the service of others. (somehow that sentence sounds a bit too moderate). Anyway, what does the government do in circumstances where an individual refuses to work in a steakhouse because he/she is a vegetarian and would be required to handle meat? It's almost a certainty that many vegetarians would be strongly repulsed by a requirement to work at a slaughterhouse in order to maintain their benefits, and certainly many people who would say that such an individual is taking advantage of Europe's very lenient welfare system.