Saturday, September 30, 2006

Offending Religion

international relations, law and culture, Two recent events, appearing to be completely unrelated, suggest the way in which law, culture, politics and religion have begun to interact in ways that are producing significant changes in the socio-cultural foundations of Europe and the United States. Each involves cultural objects. Both cultural objects are highly regarded by the social elites in the states in which they appear. In both cases, the objects are important representations of the production of high culture in the West. In neither case was this disputed. Each event, however, involves the intersection of religious sensibilities with these important cultural objects. And in both cases, highly important (and in one case almost venerated) cultural objects were abandoned or rejected in favor of another set of values.

The first event occurred in Germany. On September 25, 2006, the Deutsche Oper, one of the most respected opera houses in the Western world, announced that it was eliminating performances of the opera Idomeneo from its repertoire for the season and replacing it with two other operas “over concerns they could enrage Muslims and pose a security risk.”. Noah Barkin, “Politicians Slam Berlin Opera for Canceling Idomeneo,” Reuters, Tuesday, September 26, 2006, available at Scotsman News. This is no ordinary work of popular culture. The opera, written by Wolfgang Amadeus Mozart in the 1780s, is considered one of the finest examples of its kind ever to have been written. It has been performed all over the world. It is one of the foundational works of Western culture music. But what is culture today when the stakes of cultural production have changed? The reason the opera was cancelled was simple. “The decision was taken after Berlin security officials warned that putting on the opera as planned would present an ‘incalculable security risk’ for the establishment.” Id. It seems that “In the production, directed by Hans Neuenfels, King Idomeneo is shown staggering on stage next to the severed heads of Buddha, Jesus, Poseidon and the Prophet Mohammad, which sit on chairs.” Id. The basis of the determination of a sufficient threat “was prompted by an anonymous phone call in June,” (id.) though the police had “no evidence of a specific threat.” Id. Though a number of prominent politicians condemned the decision, it is unlikely that Mozart’s Idomeneo will grace the stage of the opera house in Berlin this year. “’Has it come so far that we must limit artistic expression?” [deputy Parliamentary Speaker Wolgang Thierse] told Reuters. ‘What will be next?’” Id.

Surprisingly, the answer comes from Dallas, Texas. There, a “popular art teacher with 28 years in the classroom is out of a job after leading her fifth grade classes last April [2006] through the Dallas Museum of Art.” Ralph Blumenthal, “Museum Field Trip Deemed Too Revealing: Texas Art Teacher Suspended After a Parent Complains,” New York Times, September 30, 2006, at A-9. The Dallas Museum of Art does not have a reputation for exhibiting works of low culture. Indeed, it prides itself as one of the premiere showcases of the best artistic work of Western culture. “The Dallas Museum of Art recently celebrated one hundred years of connecting art and people. Established in 1903, the Museum features an outstanding collection of more than 23,000 works of art from around the world, from ancient to modern times.” Dr. John R. Lane, Director’s Welcome, Dallas Museum of Art, . Moreover, the Dallas Museum is supported not only by private donations but is intimately tied to local government. “The Dallas Museum of Art is supported in part by the generosity of Museum members and donors and by the citizens of Dallas through the City of Dallas/Office of Cultural Affairs and the Texas Commission on the Arts.” Dallas Museum of Art, Homepage. “Over the past decade, more than half a million students. . . have toured the museum’s collection.” Blumenthal, supra. But all of this meant nothing in the face of parental outrage. And what was the source of this outrage? The suspension letter to the teacher stated that “During a study trip that you planned for fifth graders, students were exposed to nude statues and other nude art representations.” Blumenthal, supra. And, indeed, they may well have been exposed to the “marble torso of a Greek youth from a funerary relief, circa 330 B.C.” Id.

In both cases, important institutional actors took extreme action (and suspending a teacher or canceling an opera production falls into that category in the context in which those decisions were made) on the basis of a single complaint or a single threat, based on offense. In both cases, high culture falls to single expressions of offense, or threats of violence based on such offense. In both cases important institutional actors may disavow the importance of culture in the face of offense. In a sense there is an inversion here. Where once there was a socially approved offense in the face of cultural boorishness, now the reverse seems to be true—there is a move to a socially approved sense of offense in the face of the “arrogance” of high culture to reflect something other than the boorish tastes of the least educated, or of cultural strangers. Where culture becomes inverted, will law not quickly follow? We might find it galling sometimes to be led from the top, but consider the effects of being led from the bottom. We may not like where we wind up. And indeed, such an inversion portends decadence more than cultural vigor.

When a political community abandons its own culture, when it ceases to affirm its own ideals expressed through cultural symbols--pictures, speech, music and the like--it begins to express an altogether different value--a desire for self-destruction. The events I relate above do not appear connected, yet they are the product of the same set of impulses. That impulse was nicely summarized recently in a criticism of the Western response to the violence that accompanied the so-called Danish cartoon controversy.

“The real hypocrites in the debate were liberal intellectuals, too many to name, who spent years denouncing Christian fundamentalist demands for prayer and the teaching of evolution, in schools, the censorship of books and films, and limits on abortion, only to cave to fundamentalist Muslim demands for the introduction of Shari’a law, for separate swimming classes for boys and girls, and—in the Danish case—for the respect of religious rules not only by members of the religious group but by the society at large. Portraying the prophet may be prohibited for Muslims, but it is not and cannot be for anyone else. Muslims may ask that others respect their religious precepts, but they cannot demand it any more than observant Jews can demand that their fellow citizens not shop on Saturdays or Christians can demand that non-believers respect their sexual mores. That liberal intellectuals could be so absolutist in their dismissal of demands made by Christian fundamentalists but so apologist and relativist in their indulgence of those made by Muslim fundamentalists beggars belief. Randall Hassen, “The Danish Cartoon Controversy: A Defense of Liberal Freedom,’ EUSA Review Forum, EUSA (European Union Studies Association) Review 19(2):1, 5 (Spring 2006).

Clearly Professor Hassen is onto something. Though I suspect that what he characterizes as liberal hypocrisy is shared by a substantial portion of the political and media elites in the West. The point is easily extended to the decision of the Berlin opera and its unfortunate decision to cancel a performance of a venerable Mozart opera. But it applies with equal force to the self censorship and fear that is generated by domestic fundamentalists who would undo centuries of cultural development, development on which their political, social, moral, and (yes even) religious privilege rests. The same decadence that drives the director of the Berlin opera to cancel an operatic performance also drives a school administration to essentially forbid the viewing of representational art (spanning millennia) by students. In the one case, the West denies itself a continued renewal of its cultural ties to music and expression, and on the other the West forbids the education of its children in its own cultural fundamentals. A society that rejects its own cultural basis for existence, a community that forbids its children an education in its own past, is one that is an easy prey for other political and cultural communities with a greater attachment to their own identity. The West understood this well in the twentieth century, and to our benefit. We seem to be forgetting it quickly in the 21st.

Sunday, September 24, 2006

Thoughts on the 24th Cambridge International Symposium on Economic Crime: On Surveillance, Seizure and Interruption

The 24th Cambridge International Symposium on Economic Crime has just concluded. As it has, for the past 24 years, the Symposium prides itself for serving as a “a truly unique event which over the years has made an unrivalled contribution in promoting understanding of the real issues involved in successfully preventing and controlling economically motivated serious crime.” (Barry A.K. Rider, The 24th Cambridge International Symposium on Economic Crime, The Price of Crime, The Identification and Control of Risks Associated with the Enterprise of Crime and Terror, Programme Document). “The Symposium is able to draw upon a unique network of recognised experts from around the world. Well over two hundred speakers and panellists will address a wide range of issues of special relevance to those concerned with the prevention and control of serious crime and in particular the funding of criminal organisations and the laundering of the proceeds of crime.” Id.

And so it did. The conference brought together a number of leading actors involved in the detection, prevention, trial and punishment of people and organizations involved in economic crimes, and especially trans-border economic crime. Over the course of a week, these leading actors, from the public and private sector, representing states, economic enterprises, ad significant elements of civil society provided individual perspectives on a variety of aspects of trans-border financial crime and its interdiction. While there were many perspectives developed by the speakers, there were also three broad themes that seemed to emerge from virtually all presentations. These four themes—(1) conflation of economic and political criminality, (2) privileging of surveillance, (3) seizure, and (4) interruption—are worth exploring if only to highlight their importance in formulating policy, and public sector responses to the threats posed by economic crime.

1. Conflation of Economic and Political Criminality: much of the focus of the speakers was on economic and financial crimes flowing through or conducted with banks and banking facilities. For many speakers, banks have become the critical flow point in economic and financial crime. That importance has only been increased as the global system of banking has become increasingly seamless. Bank related criminality tends toward a finite set of profit maximizing methodologies. They also provide a methodology of veiling transactions. Consequently, economic and political criminality have blended. That is to say, that the methodologies of economic criminals (those interested solely in the financial rewards of crime) and that of politically motivated criminality (those who whom economic criminality is a method of financing political activity), have begun to harmonize. As a consequence, public sector officials tend to conflate approaches to the interdiction of both sets of activity. Where once economic or ordinary criminals were treated as a different species of criminality from politically motivated criminals, that seems no longer to be the case. And there might be good reason to do this. Increasingly, it appears, traditional criminal collectives have begun to engage in transactions with networks of political criminals. As a result, there has arisen a global shadow economy of sorts, which mimics and intersects with the formal global economy in key sectors. Thus, for example, global drug cartels may be engaged in business with certain terrorists groups to the mutual benefit of each. And even states may be involved; there was a suggestion, for example, that states augment their economic and social position by acting through semi-autonomous networks of economic and political collectives to advance their own interests in a way impossible if conducted directly. Thus, globalization has produced an odd sort of harmonization, leading perhaps to the integration of criminal activity, and its interdiction. The result is that while typical criminal statutes continue to apply to political criminality, political criminality (and principally terrorism related statutes) may come to be applied to ordinary economic criminality as well.

2. Privileging Surveillance: The conflation of economic or financial crime and political crime (financing terrorism in its most extreme aspect) has resulted in a privileging of surveillance. Surveillance became the key policy point of the conference. There was no longer a question of whether to implement systems of surveillance. Rather, the question for virtually all speakers consisted of (a) how much surveillance could be tolerated, (b) who ought to have the burden of surveillance (the private or public sector), (c) against whom would surveillance be targeted, and (d) for whose benefit should increasingly elaborate and complicated systems of surveillance be implemented.

It was clear that the public sector is pushing for a tremendous expansion in deployment of surveillance. There was much talk about the technologies of surveillance and the economics of surveillance maximizing technologies and systems. Rhetorically, at least, there was more than a passing resemblance to the discourse of the Cold War with respect to defense spending and the development of new weapons systems. It was clear to some speakers that there is a race between global criminal collectives (whether economic or political in objective) for control of the technologies of commerce. It also seemed clear that the stakes had considerably risen since the attacks of September 11, 2001 on New York and Washington, and the subsequent military actions in Afghanistan and Iraq. As a consequence, there was a sense that both the necessity and acceptability of much higher levels of surveillance, in every aspect of life, ought to be tolerated. In a sense, the idea of total war, first understood in its modern sense after 1914 in the West, has now developed to new levels. We live in the shadow of the consequences of that idea.

Much more lively is the discussion about the mechanics of surveillance. While the public sector retains the responsibility for surveillance and its products, there was a sense that the private sector was to bear an increasingly greater responsibility for actually carrying out surveillance. Thus, for example, if banks are the focal point of economic criminality, then banks ought to be the focal point of surveillance. And the responsibility for that surveillance ought to fall on the bank. Similarly, American law has increasingly imposed on a broad category of economic enterprises a greater and greater responsibility for monitoring all of the people and institutions with which it comes into contact and to report the results of that monitoring to the state. See Larry Catá Backer, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring After Sarbanes-Oxley, 2004 MICH. ST. DCL L. REV. 327 (2004).

Who should be targeted? What emerges is an increasing embrace of the idea that everyone ought to be targeted. The Conference participants confirm that the West has moved from the idea that people are presumed to be acting lawfully unless they giove an indication otherwise, to the notion that all people and institutions are potential wrongdoers who must be monitored to ensure that such wrongdoing is quickly interdicted and the perpetrators punished. This great change in fundamental policy approaches finds ramifications throughout the law enforcement and economic organization regulation fields.

For whose benefit is surveillance conducted? This seems a simple issue at one level—the state is the primary beneficiary of regimes of surveillance, and through the state, the people. But consider the effects of regimes of surveillance on the so-called front line institutions. One speaker brought out the economic effects of surveillance regimes on the profitability of banks, for example. She suggested that Section 311(a) of the USA Patriot Act, that requires designated financial institutions to act to correct deficiencies in their anti-money laundering regimes, (See USA Patriot Act), also have commercial effects. In this case, bank reputations, and profitability, can be enhanced by avoidance of designation, an avoidance that banks can exploit in their marketing. On the other hand, designation can ruin the reputation of any financial institution, in one case, we are told, resulting in the withdrawal of about 30% of the deposits of a bank in Macao, deterioration in relations with corresponding banks, all resulting in the sale of the bank. Thus there is as much advantage to be obtained from the new surveillance regimes as there are burdens imposed. Moreover, to the extent that the implementation of elaborate surveillance systems produces a reduction in exposure to liability for the institutions, such systems tend to be cost effective ways of minimizing exposure to liability, especially to third parties (and non state actors, principally depositors, borrowers, employees, etc.). Thus, privatized surveillance coupled with limitations on liability tend to encourage a broadening of surveillance as much as the necessities of state policy in combating crime.

3. The Importance of Seizure: While the burden of surveillance is increasingly privatized, the power over remedies and the form of those remedies has drifted out from the public sector and to the public. Thus for example, though banks might have the primary obligation to gather information, public authorities may have the sole power to seek remedies—from fines, to confiscations, to criminal liability. The state has increasingly taken a monopoly position over remedies, even as it has devolved the obligation to enforce. Among the form remedy often identified as valuable was seizure. Not seizure after indictment and trail, but seizure pending the outcome of judicial proceedings. The idea is a simple yet powerful one—to prevent criminals from exploiting the judicial system by using the fruits of their criminal enterprises to tilt the mechanics of judicial proceedings in their favour.

This is not a new approach. The Americans have been experimenting with this since the early days of RICO. The Americans have extended this notion to state policy within the federal Justice Department, by applying a system of guidelines for the exercise of prosecutorial discretion that essentially coerces corporate employers to breach even agreements to advance the costs of litigation and investigation defense pending trial, Larry D. Thompson, Principles of Federal Prosecution of Business Organizations, January 30, 2003, the so-called Thompson Memo ("The Thompson Memorandum sets forth nine factors that federal prosecutors must consider in determining whether to charge a corporation or other business organization."). But even this approach may have limits in the United States. See U.S. v. Stein, No. S1 05 Crim. 0888 (LAK) (S.D.N.Y.) slip opinion June 26, 2006, in which a federal district court determined that this practice violated the American Federal Constitution.

But seizure is not limited to things. It also includes the seizure of persons. The idea is that the faster and more often the players in the fields of international economic and financial crimes are removed from active participation in this field, and the more often goods in such commerce are removed from the stream of illicit commerce, the more difficult it will be for stakeholders in these enterprises to successfully maintain their operations. More likely, it suggests that the affect will not be on the viability of the operations as on their profitability. And in this light, there is an intimate connection between seizure as a methodology of fighting economic and financial c rime, and interruption as an object of such endeavors.

4. Interruption. All of this elaboration, however, has not lead conference participants to harboring false expectations. Conflation of criminal activity, expansion of surveillance, and seizure as a proactive tool may serve policies of interdiction. But few of the conference participants supposed that such strategies could actually overcome economic and financial criminal activity, and particularly politically motivated financial crime. As a consequence, the focus of law enforcement, however implemented, is not on “victory” but on interruption. The idea is that prevention is unrealistic, and recovery is only partial. Interruption is the most effective means of affecting financial and economic crime. The reason is simple—interruption is meant to target the costs of crime. To the extent that public authorities can affect the cost of producing illicit economic activity, it may reduce its incidence. If the cost of crime is significantly increased, then there may even be a significant reduction in the rate of such crime. More importantly, it seems, interruption targets political crime. Drug cartels and other economic criminal activity, like other businesses, is not overly constrained by timing issues (except for example with respect to things like harvesting crops etc., perhaps). But politically motivated crime is usually much more likely to be dependent on timing issues. The ability to engage in specific acts of terror, for example, may depend on getting funds or other goods to the right peoiple at the right time in order to affect an act in the right place for maximum effect. Windows of opportunity may open and close quickly. Thus, to the extent that interruption becomes more effective, planning for political activity becomes more difficult.

In any case, one comes away from the 24th annual Cambridge International Symposium on Economic Crime with the sense that the international elites charged with meeting the challenges of trans-border economic and financial crime have come closer to adopting a unified position—at least with respect to policy issues—touching on the foundational approach to combating such activity. That unified position will increasingly conflate economic and political crime, privilege surveillance even as the mechanics of surveillance are privatized, and rely increasingly in seizure (before trial) and interruption as means and goals of the system. . It will be interesting to see whether or to what extent this sort of policy is effective.

Friday, September 22, 2006

Cosmopolitan Ideals, the European Union and Its Judiciary

The European Union has been held up as a model of cosmopolitanism, though not unproblematically so (Derrida 2001). European cosmopolitan ideals have been focused, of late, on the creation of a draft European Constitution. That text would serve as a basis for the creation of one of the largest cosmopolitan communities in the world. This European Community, created on the foundations of a multi-state system already unique, has the potential to become quite special indeed. I want to approach the political cosmopolitanism of European constitution making from a slightly different perspective.

Since the 1950s the European Court of Justice has championed a vision of a European metropolitan cosmopolitanism that focuses on Europe as a singular jurisprudential community with a substantial pool of common legal traditions. It is institutionally cosmopolitan in the sense that Luis Cabrara uses the term: “The institutional cosmopolitan advocates some form of Martin Luther King's restructuring of the global edifice, some deep transformation to bring states under the authority of just supranational institutions, including possibly the institutions of a global government” (Cabrera 2004, 29). It is a metropolitan cosmopolitanism because it seeks to extend the cosmopolitan experience only within the territories of a territorially bounded group of substantially like states—the metropolis.

This essay suggests that the judicial mechanics of cosmopolitanism and its importance to the construction of a single political community under a European Constitution. It focuses on two key aspects of constitutional methodology: first, production by political bodies of deliberately open-ended and ambiguous text, and second, acquiescence by political bodies in judicial resolution of ambiguity or political/policy choices left unresolved in the text. This long-term dynamic of European constitutionalism is accelerated in its current stage – the proposed constitution for Europe. I suggest that this draft Constitution will augment the ECJ’s ability to authoritatively articulate its vision of a cosmopolitan Europe because it may be read to permit an expansion of judicial resort to general principles of law, the development of a jurisprudence of which has been one of the most remarkable feats of the ECJ. This runs counter to the supposition that since the draft constitution is intended to be more concrete than its predecessors, and specifically so by means of the cataloguing of the powers of E.U. institutions, including principles to be applied by the ECJ in resolving constitutional issues, the ECJ’s flexibility will be constrained. But this cataloguing actually will provide a means to avoid rather than resolve a number of difficult issues, and the ECJ’s ultimate authority to interpret constitutional text remains substantially undisturbed. Moreover, because the ECJ will now interpret a constitution, and not merely a set of international arrangements with constitutional effect, it may draw more aggressively on the established traditions of the Member States to fill gaps or resolve ambiguity. The potentially significant extent of this result is illustrated toward the end of the paper, by considering the effect on the ECJ’s interpretive powers were it to adopt the German constitutional tradition of legal hierarchy that can be used to void specific textual provisions of the constitution, and the French principle of giving constitutional value to extra-constitutional texts.

For some cosmopolitans, a European Union grounded in a ‘proper’ constitution could serve as another important step in the transformation of global political culture from one based on inward looking nation-states, to one getting closer to global federation. As Thomas Pogge suggested, an amalgamation of states would serve to disperse political allegiances over a number of political units and thus promote peace, and prosperity (Pogge 1992). The cosmopolitanism of the European Union remains, for the moment, remain necessarily tentative and metropolitan – that is, a cosmopolitanism operating only within the confines of a fixed group of political communities that share certain histories, politics, and perhaps even race, religion, ideology – and distrust -- in common, and whose territories are contiguous. But that makes it no less important. It has proven the effectiveness of the cosmopolitan ideal by creating a framework within nation-states cede a certain amount of sovereignty but remain sufficiently constituted to protect against an endless fragmentation of cosmopolitanism at its limit. “The "strong state" used to mean a nation well-prepared for war: today it must mean a nation sure enough of itself to accept the new limits to sovereignty” (Giddens 1998).

But if this experiment in European federation works, even if only within the confines of Europe, however defined for the moment, it could serve as a basis for both deepening and broadening the cosmopolitan foundations of a politically more united Europe. The deepening might be centered on cultural rather than political cosmopolitanism, and reach the private rather than the public sphere. The broadening would encompass both territorial expansion and a greater influence in shaping the character of other political communities. Among the most likely places for immediate effect would be in Africa and Latin America. These are two regions that are also working towards amalgamations of states to better compete, and perhaps, survive in the world. The African Union and the regional trading associations within Latin America are likely to watch the European experiment closely.

Understand that this European cosmopolitanism, articulated and institutionalized through the European Union, remains a deeply problematic enterprise. There are a number of uncomfortable questions facing even a cosmopolitan Europe. Among the touchiest issues of European self-identity, perhaps, is the question over the status of Turkey. Turkey’s admission into the EU remains a real issue, as well as a test, for the nature and character of European cosmopolitanism. European expansion also poses problems. The two most controversial and likely candidates in this regard would be Turkey and Russia. Each is controversial for very different reasons, but each in it own way would prove a test of the broadening powers of European cosmopolitan ideals. Yet even smaller state admissions have become increasingly troublesome. The recent reaction against waves of immigrants from Bulgaria into England, or that of the Poles into Ireland (and before that the Roma) provides examples. Though these reactions ought to be taken with a grain of salt. There was a time in the 1950s and 1960s when the same reactions accompanied Italian workers streaming into Germany.

The vehicle for this great cosmopolitan crusade, at least since the end of the 20th century, has been a European constitution. That is, European elites have sought to constitute Europe, at least as they see it, though a constitutive document that will create an institutional basis for cultural, social and ultimately political union beyond that envisioned under the present EU Treaty system. Better-said, European elites have sought to acquire a veil of legitimacy for their project to cobble together a political union by covering that project over with the thin mantle of popular approval achieved through plebiscite. I am a great friend of plebiscites myself, though I note that the European version has been used traditionally to cover a great many political sins that history has tended to condemn. This conflation of expansion, constructing a European demos and a political constitution are well known. In 2006 The European Commission's President José Manuel Barroso "called for a halt to further expansion of the bloc after Romania and Bulgaria join, saying the EU had to resolve the stalemate over its proposed constitution before it could accept new members." Constant Brand, EU Chief: Bulgaria, Romania, No More, Yahoo News, September 25, 2006. The report also noted the effect of this conflation on that other great EU issue, the accession of Turkey ("'Of course I would like Croatia to join as quickly as possible, if it fulfills all the criteria," Barroso said. However, Croatia, Turkey and other Balkan nations that want to join fear the EU is imposing new obstacles. Villepin agreed that the ability of the EU to take in new members had reached its limit. "We have to make progress with our common rules before we can contemplate any further stages," Villepin said."). Id.

But no matter.

Much discussion of the new European constitution, and of a need for a replacement for the present treaty system, tends to focus almost exclusively on text. The text of the proposed constitution will provide the answers to ameliorate a multitude of deficiencies in the current international constitutional order on which the E.U. is said to be grounded. These include the democratic deficit, to the allocation of powers both within the E.U. and between the E.U. and the Member States. This focus is in keeping both with civil law traditions of the primacy of text and global traditions of crafting constitutional text as working document and symbol of the highest aspirations of a political community. This is not to say that a concentration on text, and the implications of socio-political choices reflected in the text, ought not to be taken seriously. To the contrary, a close analysis of text is a necessary and important task for any community intent on adopting a new basic law binding its citizens.

I, like many of my colleagues in law, start with text. Text provides the usual basis for building and implementing political systems. Since the reduction of Roman law to the Twelve Tables, it has been a mainstay of Western thought that text protects against arbitrary conduct and tyranny. Text is central to Western notions of rule of law. I will even agree that text is central to constitutional discourse. The legislator, the administrator, and indeed even the citizen, must be able to rely on constitutional text for the development of a firm and stable grounding of the socio-political order.

However, a discourse of constitutionalism centering on text ignores the revolutionary and transformative potential of text in the hands of one of the greatest institutions of constitutional innovation to emerge in Western Europe and the United States – the constitutional court. In most democratic states, the principle is firmly established that supreme authority to interpret constitutional text is allocated to a judicial or quasi-judicial institution of government – the constitutional court. Whether the actions of a constitutional court are considered inherently judicial (Marbury v. Madison) or political (Kelson 1961), does not change the result, though it may change the character of the work of this institution.

So allocated, constitutional courts have demonstrated a propensity for going outside of constitutional text in the service of that interpretive task. In the hands of constitutional courts, constitutional text has proven to be quite fluid. Even the most self-evident provision of text has, in its time, been susceptible to interpretation, and re-interpretation. As important, perhaps, text, and legal text in particular, has been read as a permission to go beyond its literal terms or to incorporate within them, or read them on the basis of, great political, moral and other principles of human organization and behavior dominant in human organization from time to time. That has been the case with the American 11th Amendment, transmogrified in the 20th century into a general principle of state sovereign immunity binding on the American federal government. So also the European development of principles of equal treatment and proportionality that have been read as limiting principles of institutional action at the Member State and European institutional level.

Almost from its inception, the European Union’s constitutionalism has resisted dependence on a blind adherence to a textual object uniformly interpreted by a political community built on a singular vision of the institutions, powers or purposes of the E.U. The ECJ has been able to authoritatively articulate its vision of the European Community by application of a number of jurisprudential devices, not the least of which has been the development of a catalog of general principles of law that, read into the treaties, have been critical elements in the ECJ’s successful efforts to broadly interpret the treaties.

In so doing, the ECJ has played a key role in the development of a cosmopolitan European legal culture. The hallmark of this culture is its internalization of constitutional traditions of the Member States as well as of evolving international behavioral norms. This would include both customary international law provisions to some extent, and more often, the standards set forth in international legal instruments. The great principles of ‘direct effect’ of the treaties, of equal treatment, of proportionality, of human rights incorporation, among others, have shown the ECJ at its cosmopolitan best. The real potential for cosmopolitanism within European constitutionalism, then, finds its greatest expression in the courts, and principally with the European Court of Justice. Consequently, it is naïve to focus discussion on the text of a constitution and in so doing ignore the possibilities that the text itself provides a mechanics for its own reconstruction in the hands of the constitutional courts.

Indeed, the cover of a constitution may provide the judicial department of the emerging supra-state with a greater, rather than with a more constrained array of interpretive tools with which to continue to impose its vision of Europe from its reading of text, and not necessarily merely the text of the European constitution itself (Backer 2004). More particularly, the traditional cosmopolitanism of ECJ jurisprudence, combined with the ECJ’s closer ties with the constitutional traditions of the Member States, may make available to the ECJ additional principles of constitutional interpretation tools with which to shape the emerging European state. In particular, the constitutionalism of the EU may permit the ECJ to add two additional arrows to its constitutional (interpretative) quiver, drawn from the judicial constitutional traditions of major European states. One is drawn from the relatively recent constitutional tradition of France, and a second from the constitutional tradition of Germany. The first refers to the French extension of constitutional valeur to the preamble of the constitution. The second refers to the German tradition of a hierarchy of constitutional values, starting with general constitutional principles, pursuant to which it is possible to view particular (and inferior) provisions of the constitutional text unconstitutional.

In the Southwest Case (I BverfGE 14 (1951) (Federal Constitutional Court of Germany)), the German Federal Constitutional Court found a law enacted by the federal legislature to violate the Basic Law, asserted that its decision and reasons for invalidating the law were binding on all other branches and levels of government, and raised the possibility that an amendment to the Basic Law would itself be unconstitutional. The Court determined that certain constitutional principles – democracy, federalism, and equality – are superior to any individual provision of the Basic Law. Individual constitutional provisions must be interpreted in conformity with those principles, and, if that is impossible, may be voided as incompatible with the Basic Law as a whole. Quoting with approval language from an opinion of the Bavarian Constitutional Court, the court stated:

“That a constitutional provision itself may be null and void, is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high my be null and void because they contravene these principles . . .”

In a significantly more opaque opinion, the French Conseil constitutionnel struck down a loi as contravening French principles of fundamental rights (CC decision no. 71-44 DC of 16 July 1971, Loi des Associations). The Loi in question provided before an association may be recognized as having legal status, it must file certain particulars with the prefect, who must then issue a certificate of registration. This decision affirmed the valuer constitutionnel of the texts contained in the 1946 preamble—the 1789 declaration, the Fundamental principles recognized by the laws of the Republic (FPRLR), and the list of “political, economic, and social principles necessary for our times”. The critical language in the decision was fairly straightforward: “In light of the Constitution and notably its Preamble.” (Stone 1992). The principle that was derived from the preamble is that associations can be formed freely.

Consider the possibilities for the future of European constitutionalism, even a constitutionalism constrained by the general principles memorialized in the first part of the constitution, in which the ECJ could give constitutional value to the constitution’s preamble, and on that basis, derive principles for use in interpreting the constitution. Consider as well the possibilities for a European constitution in which, on the basis of the developed and emerging principles of European law, the ECJ reserves for itself the power, inherent in the constitutional scheme, to void specific provisions of the constitution. No discussion of the new constitution for Europe can be complete without serious and sustained discussion of these possibilities.

Cosmopolitanism, or at least a form of European centered metropolitan cosmopolitanism, has been one of the most dynamic forces shaping the institutional development of the European Union. Since the 1960s, the European Court of Justice has served as the one of the principal vehicles for articulation and implementation of that vision. As Europe debates a new constitutional framework, attention tends to focus on the text of the constitution, and the political processes through which this text is developed. Because the courts do not participate directly in the development of text, the temptation is to relegate the ECJ to mere object of constitutionalism. Yet, even acknowledging the importance and exceptional nature of constitution writing, it would be naïve to conclude that the development of a constitutional text will somehow reduce or even exclude the judiciary from a continuing participation in the development of Europe as a political community. I suggest that however written, constitutional text carries within it the potential for robbing, and perhaps necessarily so, the emerging text of a measure of finality, certainty, and political accountability. As a consequence, post-constitutional European cosmopolitanism may continue to be shaped as much by the judiciary as by political elites.

Reference List

Larry Catá Backer, “Restraining Power from Below: The European Constitution’s Text and the Effectiveness of Protection of Member State Power Within the EU Framework,” The Federal Trust for Education and Research Online Paper No. 15/04 (July, 2004) available at

Luis Cabrera, Political Theory of Global Justice: A Cosmopolitan Case for the World State (New York, Routledge, 2004).

Jacques Derrida, On Cosmopolitanism and Forgiveness (London: Rutledge 2001).

Anthony Giddens, “After the Left's Paralysis: The Third Way Can Provide a Framework for Political and Economic Thought That Cuts across the Old Divides of Social Democracy and Neoliberalism,” New Statesman, 127:18, May 1, 1998.

Hans Kelson, General Theory of Law and State (Trans. Anders Wedberg. Russell & Russell, New York., 1961).

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803).

Thomas W. Pogge, “Cosmopolitanism and Sovereignty,” 103 Ethics 48-75 (1992).

Alex Stone, The Birth of Judicial Politics in France 257-260 (1992).

Saturday, September 16, 2006

On Benedict XVI, Islam and the Politics of Abusive Discourse

The essence of an abusive relationship is inversion. In a domestic context it goes something like this: the victim must do everything in her power to please the aggressor. If she fails in even one task, say setting dinner our immediately before the aggressor’s return from work, she will be beaten. She is reminded that the beating is her fault, she enraged the aggressor by failing in her duties and thus forced him to beat her. How much worse, then, and how much more deserved a beating she merits, were she ever to tell the aggressor that he is a violent man prone to get his way only by threats of violence and resort to actual violence. Indeed, such a statement from her would be provocative at best and surely will make matters worse by inflaming the passions of the aggressor so that the cycle of violence will only intensify as a result of her actions.

In the West today, this sort of relationship is condemned for what the evil it perpetrates—the attempt to evade responsibility for bad acts through the use of violence. This sort of controlling behavior is in its extreme forms viewed as pathological, and certainly anti-social. Society would tend to come together to protect itself from this sort of evil, and to protect the victim from further abuse. There was, of course, another time, when in the West, such behavior would have been viewed as perfectly acceptable. Indeed, interaction, viewed simply in terms of power relationships, would be assessed on the ability of the powerful to maintain control and on the utility of methods for keeping the powerless in their place. In our scenario, the victim would be condemned for her provocation, her aggressor viewed as well within his rights to administer a violent tonic to this bad behavior, and indeed, to the extent that condemnation is made, it might be directed at the aggressor for failing to run his household in away that maintained the power relationships in more appropriate balance (Herrup, 1999).

It should come, then, as no surprise, that a portion of a lecture to academics given in Germany on September 12, 2006 by Benedict XVI should have produced the reactions it did, both in the dar al Islam and the dar al harb. The speech, delivered as an academic lecture at Regensburg University, was entitled Faith, Reason and the University. The offending portion of the lecture read in full as follows:

This profound sense of coherence within the universe of reason was not troubled, even when it was once reported that a colleague had said there was something odd about our university: it had two faculties devoted to something that did not exist: God. That even in the face of such radical skepticism it is still necessary and reasonable to raise the question of God through the use of reason, and to do so in the context of the tradition of the Christian faith: this, within the university as a whole, was accepted without question.

I was reminded of all this recently, when I read the edition by Professor Theodore Khoury (Münster) of part of the dialogue carried on - perhaps in 1391 in the winter barracks near Ankara - by the erudite Byzantine emperor Manuel II Paleologus and an educated Persian on the subject of Christianity and Islam, and the truth of both. It was presumably the emperor himself who set down this dialogue, during the siege of Constantinople between 1394 and 1402; and this would explain why his arguments are given in greater detail than those of his Persian interlocutor. The dialogue ranges widely over the structures of faith contained in the Bible and in the Qur'an, and deals especially with the image of God and of man, while necessarily returning repeatedly to the relationship between - as they were called - three "Laws" or "rules of life": the Old Testament, the New Testament and the Qur'an. It is not my intention to discuss this question in the present lecture; here I would like to discuss only one point - itself rather marginal to the dialogue as a whole - which, in the context of the issue of "faith and reason", I found interesting and which can serve as the starting-point for my reflections on this issue.

In the seventh conversation (diálesis - controversy) edited by Professor Khoury, the emperor touches on the theme of the holy war. The emperor must have known that surah 2, 256 reads: "There is no compulsion in religion". According to the experts, this is one of the suras of the early period, when Mohammed was still powerless and under threat. But naturally the emperor also knew the instructions, developed later and recorded in the Qur'an, concerning holy war. Without descending to details, such as the difference in treatment accorded to those who have the "Book" and the "infidels", he addresses his interlocutor with a startling brusqueness on the central question about the relationship between religion and violence in general, saying: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached". The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood - and not acting reasonably (syn logo) is contrary to God's nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats... To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death...".

The decisive statement in this argument against violent conversion is this: not to act in accordance with reason is contrary to God's nature. The editor, Theodore Khoury, observes: For the emperor, as a Byzantine shaped by Greek philosophy, this statement is self-evident. But for Muslim teaching, God is absolutely transcendent. His will is not bound up with any of our categories, even that of rationality. Here Khoury quotes a work of the noted French Islamist R. Arnaldez, who points out that Ibn Hazn went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practise idolatry.

At this point, as far as understanding of God and thus the concrete practice of religion is concerned, we are faced with an unavoidable dilemma. Is the conviction that acting unreasonably contradicts God's nature merely a Greek idea, or is it always and intrinsically true? Id.

Consider carefully the nature of the reference in the context in which the reference is made: He starts with the proposition that there appears to be coherence between faith and reason, a coherence evidenced by the practices of the university. This proposition sets up a series of binaries with which he will be concerned for the rest of the paper. And, indeed, it is to the possible reconciliation of one particular set of binaries—faith and science, the Greek and the Christian, God and Humanity, within a single ontology that drives his analysis. So, the set up in clear—suppose an oppositional set of binaries and propose the falsity of the opposition and the unity of binaries within a greater singularity. Within Western thought, Christian, Jewish, Enlightenment, Marxist, and post-modern—this pattern of thinking is well worn, and indeed, to some extent, foundational. It is the essence of Western thinking irrespective of the normative structures in the defense of which it is interposed.

Having announced his goal—an examination of the verities of a set of supposedly oppositional binaries (the oppositions of which he intends to harmonize within a superior and more comprehensive framework), Benedict starts fleshing out the foundational binary to be examined. For that purpose he uses an ancient text, relating a dialogue between a late Byzantine Emperor and a Persian scholar, touching generally on the relationship between God and humanity and specifically on the subject of Christianity and Islam.

The choice of this particular text is astute for his primary purpose—to add complexity to the binary he interrogates. The text he chooses to introduce the oppositions is itself an example of a common form of oppositional writing. This form of oppositional writing was quite popular in medieval Christendom, as theatre for the edification of the laity and the reassurance of the clergy; Jews were forced to endure its usually well orchestrated pattern for the purpose of proving the evils or irrelevance of the original covenant versus the truth, value, relevance, completeness or finality of the next. Pictures of these so-called disputations were common all over Europe. Beyond the form, the text itself reveals a host of oppositions that are then reflected in the rest of the discourse: that between Greek and Persian, Emperor and scholar, faith and reason. The text itself, thus, was chosen as an example of the deeply embedded drive to oppositional thinking within all culture.

Benedict then focuses on a particular dialogue within that text, on the notion of compulsion in religion—another foundational binary. In the dialogue, the Emperor, aware of yet another set of oppositions (that between sura 2, 256 and the later instructions on holy war), is said to brusquely dismiss the possibility of a conflation of religion and violence (and of course there is tremendous irony in this statement considering Greek Christianity’s own early and long brush with compulsion and violence) by suggesting yet another binary—between reason and God’s nature. To bring out this supposed binary, he quotes the relevant language (which will be crucial to the development of his harmonization of supposed opposites later in the lecture): "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." The point is then elaborated in the paragraph and a half that follows. Benedict quotes an elaboration of that remark, grounded in the body-soul binary, and then generalizes the binary by quoting as against a Christian Hellenistic rationalism an approach to Islam, “Ibn Hazn went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practise idolatry.”

This last opposition now clearly draws out the fundamental question that Benedict sought to describe at the beginning of the lecture, but in a form that could more usefully frame the discussion he was principally concerned with—the relationship between Hellenism and Christian faith, between God and Humanity, between science and faith, etc. He posits a form of Islam (and later suggests an analog in some strains of Christian thinking) in which God is embraced as irrational against a sort of rule-of-law rationally framed God. Benedict clearly has a preference for the later. He rejects the notion of an incomprehensible, arbitrary or irrational God in favor of a God that undoes contradiction, and suggests that God and order are synonymous, and from this bridges the now harmonized relationship between faith and reason, science and theology within a Christian cosmology. And why not? He is the elected head of a large Christian sect, whose values and faith he has sent a lifetime defending. One would hardly have expected him to rise in defense of something else. And his lecture was well done and not inconsistent with a long and venerable line of discourse on this subject along those lines.

In that context, Islam played an incidental role, and the relationship between the Prophet, Islam, and coercion, and even smaller direct role. The lecture focused on oppositions and synthesis. It did not focus on the theology of Islamic notions of jihad. It did not even suggest that Islamic notions of jihad invariably compelled forced conversion. Nor was it concerned with the nature of the relationship of the Prophet to his God. It was concerned with the way a 14th century text drew out a set of oppositions. And he did not shy from quoting the relevant 14th century language, though he was careful to contextualize the statement. And indeed, that sense of oppositional thinking, Benedict reminds us, seeps into Islam itself. Benedict remarks on the oppositions between sura 2, 256 and later Qu’ranic writing suggesting a more violent engagement between faith and membership in a religious community. Ironically, the text in question was prepared in translation by a Maronite Archbishop of Lebanon (and professor at Muenster) Theodore Khoury. Khoury is also a religion scholar who has produced work advancing interfaith dialog (Abraham: A Blessing for All Nations; Khoury n.d.).

Stylistically, that particular text and that particular quote was meant to add power to the analysis by deepening its overtones. It is not for nothing that Benedict would use the words of Greek Emperor to articulate the Greek notion of rationality. That was a clever stylistic twist and helped to drive home the point he was attempting to articulate. Against this, Islam supplied its own parallel set of normative contradiction—between sura 2, 256 and later incarnations of obligations under conditions of holy war (in the original traditional sense). Again, another clever stylistic turn, with complex overtones. Clearly a jab at a conception of religious duty within Islam that has not been entirely repudiated. But more importantly a reminder of Islam’s own rational turn. Yet all of this subordinated to the service of the great object of the address, the harmonization of apparent antimonies within the framework of the Christian theology he has sworn to advance. Benedict thus comes to the heart of the address to the university—a showing that theology belongs, alongside science, in the academy.

“The intention here is not one of retrenchment or negative criticism, but of broadening our concept of reason and its application. While we rejoice in the new possibilities open to humanity, we also see the dangers arising from these possibilities and we must ask ourselves how we can overcome them. We will succeed in doing so only if reason and faith come together in a new way, if we overcome the self-imposed limitation of reason to the empirically verifiable, and if we once more disclose its vast horizons. In this sense theology rightly belongs in the university and within the wide-ranging dialogue of sciences, not merely as a historical discipline and one of the human sciences, but precisely as theology, as inquiry into the rationality of faith. ” Id.

This is hardly the stuff of provocation to sectarian strife. The address was a deeply intellectual exercise, touching on matters that have been at the heart of religious-secular dialogue since the European Enlightenment. It sought to support a conclusion that does not necessarily or invariably follow from the logic of his presentation. Its conclusion is not necessarily or invariably supported by his logic (accepting all of his premises, for example, one could have taken his argument, as well crafted as it was, in quite another direction). But, but that is the nature of discourse. And Benedict-s contribution was elegant and surprizingly conciliatory. And that was Benedict’s point, in part. In form at least, the address represents another part of a long, internal conversation within the European family in one sense, and an attempt to seek universal normative frameworks on another. Except in passing, it was not about Islam at all. 14th century conceptions of Islam played, at most, a supporting role in the development of the thesis, supplying part of a useful antimony. Or was there something more to the passing reference?

The reactions to this address suggest otherwise. Indeed, the reactions suggest that, for some people at least, the debates of the 14th century between Greek Christians and Muslim Persians provide an accurate mirror of modern debates within Islam and between Muslims and the West (secular and otherwise). That realization, is a lamentable part of this episode, but one hardly noticed by a press eager to score points at the Vatican's expense. More lamentable still is the way in which a lazy and craven Western press has participated in the demonization of the lecture and the distortion of the reference actually made (reporting on United States television, for example, that Benedict had refered to the Prophet himself as "evil and inhuman" when in fact the reference was to any purported command in Islam to compel conversion.

The BBC was kind enough to quickly (and with more than a hint of approval) report the reaction to the speech among people and organizations purporting to speak for Islam (or perhaps just for themselves but vested in the West with some sort of religious representative authority) (BBC 2006). As reported by the BBC, the reactions tended to fall into a few well worn categories.

The first category included justificatory statements on related themes. Terrorism was high on the reactive agenda. Thus for example, the reaction of the Pakistani President Pervez Musharraf: “Our strategy must clearly oppose the sinister tendencies to associate terrorism with Islam and discrimination against Muslims, which are giving rise to an ominous alienation between the west and the world of Islam” (BBC 2006). It is hard to reconcile anything in Benedict’s remarks to anything contained in this statement. Like other statements from the West that may brush up against Islam, Benedict’s lecture appears to be little more than a gateway for the expression of unrelated views of the right thinking required of the West in its dealings with Muslims. The Saudi Grand Mufti spoke on similar themes: “This is all a lie ... Islam is far from terrorism and was spread only through the conviction of peoples who saw the good and justice of Islam¨ (BBC 2006).

The second category is more robustly dysfunctional, though at least refreshingly honest. Thus Malaysian Prime Minister Abdullah Ahmad Badawi was quoted as suggesting that “The Pope must not take lightly the spread of outrage that has been created. The Vatican must now take full responsibility over the matter and carry out the necessary steps to rectify the mistake” (BBC 2006). The statement from the Pakistani Parliament could be taken in the same light: “The derogatory remarks of the Pope about the philosophy of jihad and Prophet Muhammad have injured sentiments across the Muslim world and pose the danger of spreading acrimony among the religions” (BBC 2006).

A more benign version of the theme struck by the Malaysian Prime Minister was offered by the Egyptian Foreign Minister, Ahmed Aboul Gheit: “This was a very unfortunate statement and it is a statement that shows that there is a lack of understanding of real Islam. And because of this we are hopeful that such statements and such positions would not be stated in order to not allow tension and distrust and recriminations to brew between the Muslim as well as the west¨(BBC 2006).

Another set of reactions suggested that the Catholic Pontiff had authority to speak of or for Islam far greater than Benedict himself might have thought possible. Thus, for example, the Palestinian Prime Minster, Ismail Haniya, spoke “In the name of our Palestinian people... we express our condemnation of the statements of his Excellency the Pope, against Islam as a belief, Sharia, history, and a lifestyle” (BBC 2006). Most of the comments took it upon themselves to interpret Benedict’s lecture as having been necessarily about the meaning and character of Islam’s approach to conversion and took offense at what they took to be bad theology. On a related theme, Sheikh Youssef Al-Qardawi, Qatari Muslim cleric and Head of the Islamic Scholars’ Association said: “Our hands are outstretched and our religion calls for peace, not for war, for love not for hatred, for tolerance, not for fanaticism, for knowing each other and not for disavowing each other. We condemn this and we want to know the explanation of this and what is intended by this. We call on the pope, the pontiff, to apologise to the Islamic nation because he has insulted its religion and Prophet, its faith and Sharia without any justification" (BBC 2006).

The irony, of course is obvious, as is the irrelevance of the reactions for the object of criticism. Benedict is taken to task for an incorrect analysis of the conversion rule of Islam from a lecture that had nothing to do with that subject and used a quote from a Greek Emperor to make a point about Western ontology within universities. But the object was not to engage Benedict in the niceties of the lecture but to use the reference by a non-Muslim to issues of Muslim theology or practice as a basis for articulating a rule about the suppression of discourse, or at least a rule about the control of discourse between religious communities involving Islam on Muslims. Thus, for example, Salih Kapusuz, Deputy leader of Turkey’s ruling AK Party declared that “The owner of those unfortunate and arrogant comments, Benedict XVI, has gone down in history, but in the same category as Hitler and Mussolini. He seems to have a mindset that comes from the darkness of the Middle Ages. He is a poor thing that has not benefited from the spirit of reform in the Christian world. It looks like an effort to revive the mentality of the Crusades” (BBC 2006).

Perhaps most interesting of all were the comments suggesting that Benedict had an obligation to correct Byzantine foreign policy by repudiating the comments of one of the last Greek Orthodox rulers of Constantinople. This suggestion was made by Dr. Muhammad Abdul Bari of the Muslim Council of Britain, who was quoted as saying “One would expect a religious leader such as the Pope to act and speak with responsibility and repudiate the Byzantine emperor's views in the interests of truth and harmonious relations. Regrettably, the Pope did not do so and this has understandably caused a lot of dismay and hurt” (BBC 2006).

Perhaps the West has grown to expect reactions like this to any mention of Islam outside of the faith. These reactions, both passive and aggressive, suggest a range of interests that are engaged whenever someone not of the faith seeks any engagement, even incidental engagement, with Islam. They conflate another set of antimonies that perhaps ought to be the subject of Benedict’s next university lecture—the West’s protective sensitivity to religion and the West’s commitment to full free and open political debate. When religion seeks both the right to fully participate, as religion, in political and policy debate, but at the same time seeks to hide behind the protections afforded religious belief and practice, the political order in the West can be subverted by the resulting paradox.

It is in this context that it is easiest to understand the pathos in the New York Times reaction to the lecture (and the ensuing criticism. In an editorial (New York Times 2006), the New York Times showed an amazing ability to misread, distort, demonize and contort Benedict’s words, and then use them as another excuse to demand that yet another Western authority figure apologize to yet another undifferentiated mass of potentially violent people in an effort to avoid violence. This editorial was written by the frightened, desperate to avoid another beating. The editorial starts by declaring its belief that the level of religious anger is at an unacceptably high level. And then it immediately does something extraordinary—on the basis of some unknown process and through some unknown mandate and authority, it declares )as fact) that Benedict’s reference to the 14th Century Greek text quoted in his address constituted an insult to Islam. The quote was described as provocative because Benedict chose to quote Manuel’s statement. Unstated, but clearly emerging from the way this second paragraph of the editorial was written, was an intimation that the Pontiff cravenly sought to disguise a personal view of Islam as “evil and inhuman” by putting those words in the mouth of a late Byzantine Emperor and then burying that quote in a speech about something else. “In 2004 when he was still the Vatican’s top theologian, he spoke out against Turkey’s joining the European Union, because Turkey, as a Muslim country was ‘in permanent contrast to Europe.’ A doctrinal conservative, his greatest fear appears to be the loss of a uniform Catholic identity, not exactly the best jumping off point for tolerance or interfaith dialogue” (New York Times 2006) Amazing.

This reading by the editorial staff of the New York Times was apparently confirmed by the protest that followed in the wake of the speech. It was reconfirmed by the editorial staff’s own apparently authoritative interpretation of Islam: “For many Muslims, holy war—jihad—is a spiritual struggle, and not a call to violence. And they denounce its perversion by extremists, who use jihad to justify murder and terrorism” (Id.). The statement is presumptuous and arrogant—after all, who are these people to decide for Muslims or any one else, the true nature of Islam, or its requirements when even they clearly suggest that there is on on-going intra faith struggle over the meaning of jihad, one more and one less to the (Western secular) tastes of the editors at the New York Times. But it is also perversely ironic, the editorial staff of the New York Times commits the very sin for which it and certain Muslim leaders condemn Benedict.

But Benedict was a bad boy. His words, to which the world “carefully listens” (id.) (but as I have tried to make clear, they hardly bother to understand), when they sow “pain, either deliberately or carelessly” (id.) can have “tragic and dangerous” (id.) consequences. Those consequences, the New York Times suggests, can be avoided by “a deep and persuasive apology, demonstrating that words can also heal” (id.). Most Western leaders were quite slow to react. Not so the German Chancellor. “German Chancellor Angela Merkel has come to the pontiff's defence, saying the aim of the speech had been misunderstood” (BBC 2006a).

To its credit as a superb player in the diplomatic sphere, the Vatican was quick to offer a response. But the tenor of the reaction does not bode well for interfaith relations in the future. “In a statement read out by a senior Vatican official, the Pope said he respected Islam and hoped Muslims would understand the true sense of his words” (BBC 2006a). On the other hand, it wasn’t much of an apology. "The Holy Father is very sorry that some passages of his speech may have sounded offensive to the sensibilities of Muslim believers," the statement said” (BBC 2006a). Read in a particular way, it could be said to suggest that the Pope was saddened by the inability of people to understand what he was trying to say. That, certainly, is more in the still of Benedict. And this was not lost on his listeners in the dar al Islam. “The Vatican Secretary of State says that the Pope is sorry because his statements had been badly interpreted, but there is no bad interpretation," Abdel Moneim Abul Futuh, a senior official from the opposition party told AFP” (BBC 2006a).

But they suggest something far more sinister—and sad. On one level, it suggests that dialogue with Islam is not possible. And that is ironic indeed, because it suggests a certain continuing validity in the 21st century to the 14th century indictment of irrationalism suggested by the Emperor Manuel II Paleologu’ response to the idea of forced conversion in Islam (whatever the verities of that conception). The irony grows in the context in which this appears—a defense of Christianity against a much more sustained and threatening attack on its normative values by Enlightenment secularism. Where the response to even oblique dialog is a conversation ending “offense to Islam” then power replaces discourse and coercion displaces persuasion. On the other hand, the response may well prove the limits of Benedict’s conception of the universality of the harmonization of reason and faith; perhaps it is limited to Hellenized Christianity after all. But the consequence of that notion may be frightening indeed.

On another level, this episode confirms the difficulty of academic engagement with Islam, at least at an institutional level. All discourse always runs up against a risk of “offense” and “insult.” Query and disagreement becomes heresy or apostasy or a defamation of the faith. But this is to be expected in a culture that conflates religion, politics, culture and science. It serves as warning to Benedict himself of the project he is pursuing, as unveiled in his speech at Regensburg. There is a bit of irony of that as well. Ex Corde Ecclesiae can be perverted and used to stifle discourse as readily as a chorus of “insult to Islam.” For Benedict, that ought to be the great lesson of this episode, though I doubt it will be. And that is a shame.

On yet another level, it confirms that religious discourse with Islam, at least in its political guise, now is about power. Sadly, this power dialogic is little more than an exercise of a pathologically (or opportunistic) abusive power at that. Thus we come full circle to the beginning of this essay. Reduced to its basic level, the pattern of interaction between Islam and the West is becoming clear, at least at the level of institutional relations. Those relations now mimic more that of the relationship between the aggressive abuser in a dysfunctional family—the person always threatening violence as a means to control, or to stifle conversation—and his victim who becomes the willing partner in the pattern of abuse. The reaction in its many forms can all be reduced to variations on a theme—you have no part in any dialog about Islam. Control of that conversation is strictly limited. Any deviation will result in an immediate emotive reaction. Engagement is out of the question. Violence is a necessary substitute. There can be no talking to those who do not first submit. In this context, a portion of Benedict’s speech becomes even more eerily relevant: “It was clear that, by inquiring about the reasonableness of faith, they too carried out a work which is necessarily part of the "whole" of the universitas scientiarum, even if not everyone could share the faith which theologians seek to correlate with reason as a whole” (Benedict XVI 2006).

It also suggests that power discourses of this type are also characterized by fear. How else can one explain the tone and content of the reaction of the New York Times editorial staff to the speech. Like the abused party to a dysfunctional relationship, the editors of the New York Times worked hard to demonize the address for the purpose of reducing the possibility that the West would be violently assaulted for the Pope’s address. That violence would occur, the New York Times had no doubt. That it was the fault of Benedict, the New York Times. Was also quite sure. But where relationships between religions become grounded in violence and fear of violent reaction, where violence is always the fault of the victim, then all semblance of dialog and good will evaporate. The New York Times does more to contribute to a culture of violence by its playing the role of victim of an abusive relationship than does Benedict by his rather mild incidental reference to Islam. I am afraid that the New York Times, and the elites it represents may continue to get its wish—an increased proclivity to violence and a rejection of dialog—as long it embraces the pleasures of victimization. I am saddened that even the Vatican, and a mind as sharp as that of Benedict XVI, will be censored or silenced in the future, rather than challenged on his own terms and engaged.


Bendict XVI, Faith, Reason And The University, Apostolic Journey Of His Holiness Benedict XVI, To München, Altötting And Regensburg (September 9-14, 2006), Meeting With The Representatives Of Science, Lecture Of The Holy Father, Aula Magna Of The University Of Regensburg, Tuesday, 12 September 2006, available at (provisional text, September 16, 2006).

British Broadcasting Company (BBC). 2006. In quotes: Muslim Reactions to Pope (September 16, 2006).

-----------. 2006a. Pope Sorry for Offense to Islam (September 16, 2006). Available

Cynthia B. Herrup. 1999. A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven. Oxford: Oxford University Press.

Ex Corde Ecclesiae. 1990. Apostolic Constitution Of The Supreme Pontiff John Paul II On Catholic Universities. Promulgated 15 August, 1990.

Khoury, Theodore. n.d. A Blessing for All Nations According to the Jewish, Christian and Islamic Traditions.

New York Times. 2006. Editorial: The Pope’s Words. The New York Times (September 16, 2006).

Friday, September 15, 2006

Soft Extra Territorialism and Anti-Corruption Campaigns: On the Perverse Folly of Corrupt States

I have written about the risks to states, principally the United States, and to international organizations, like the World Bank, of engaging in anti-corruption campaigns based on their power to limit aid, based on their unilateral assessment of corruption, and with little attention to the legal prosecution of corrupt officials as a predicate for action against states. Larry Catá Backer, Soft Extra Territorialism and American Anti-Corruption Campaigns, Law at the End of the Day, September 12, 2006. I suggested that the greatest risk of this form of anti-corruption campaign was its power to corrupt the actors seeking to fight corruption.

But my criticism of the American and World Bank efforts should not be read as an endorsement or defense of the states and other actors who are the objects of these anti-corruption campaigns. The Americans and the World Bank are attempting to do right. My hope is that this well motivated effort to “do right” not go wrong. But the states and other actors that are the object of these campaigns do themselves no favor by intensifying their resistance to anti-corruption . Indeed, as I suggest below, these states only deepen and institutionalize their own corruption by their attempts to deflect attention away from their moral and ethical delits to the difficulties inherent in any global policing of their bad conduct by the Americans and the World Bank. States that tolerate corruption, by whatever standard measured, and who prefer to resist efforts to reduce corruption are themselves furthering the corruption of the political community, deepening cultures of corruption as a fixture of state policy, and making it likely that such states will lose all power to regulate relationships that may be corrupt either at the hands of an increasingly intrusive international establishment or by action of global networks of private actors.

For this purpose one need go no farther than the reporting in Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-1. The representatives of the states that tend to be the objects of anti-corruption efforts (as well as other states that tend to profit from the corruption of others, notable among them, France, which for years permitted its firms to deduct the costs of foreign bribery as a business expense), have refined their objections to anti-corruption campaigns to a well oiled cant that I have reduced to its four integrated but essential parts. No one ought to be impressed but that is the nature of mantra—the greatest effect of which is to dull the mind and reinvent thief as victim. I have taken that invitation and discuss each in turn.

1. Anti-corruption campaigns result in a loss of national reputation that unfairly produce substantial negative financial effects (“a widespread fear that countries will be categorized in the future as corrupt, and that lending will be shut off in a selective way.¨ Id.):

This is probably the most complex and important of the critiques. Yet at its foundation it is a critique steeped in irony. It effectively admits that strategies that target countries are effective. That repeated targeting can have systemic effects (by affecting reputation) and that reputation effects can translate into higher costs of capital—that is borrowing becomes more expensive (the risks are greater or the lender internalizes the costs and inefficiencies of corruption), or unavailable. Reduced to its simplest level the critique suggests that anti-corruption campaigns are bad because they work. In this guise the argument is both pathetic and manipulative. The feebleness of the argument is obvious. Its manipulative potential perhaps less so—it seeks to suggest that the thievery of state or state supported middlemen in the delivery of services to individuals ought to be invisible and excusable to avoid even greater suffering among the individuals affected (both by the conduct of the thieves and those who withhold aid or make aid more expensive). It intimates a “two wrongs don’t make a right” argument, the sort of argument that terrorists groups make when munitions deliberately placed in family homes or hospitals are threatened with destruction. And these arguments have been effective—quite effective—in the West. They seek to manipulate Western cultural norms—especially its recent tendency towards an almost irrational concern with “the innocent”—to retain a power to steal, seen as a lower order delit in the hierarchy of Western values.

This pathetic manipulation also goes to the principled part of this critique—that this labeling is unfair. Unfairness might arise under one of two circumstances—(1) that the reputation is undeserved, or (2) that the reputation, while deserved, is arbitrarily applied to some but not all states deserving the reputation (and thus these labeled states bear an unfair and disproportionate cost of corruption).

Undeserved reputation for corruption, especially when the labeling originates within the policy setting of another state (the United States primarily) or from international organizations (the World Bank in this case), can result from action taken on the basis of bad or untrue information or from a cynical application of the corruption campaign to advance the interests of the labeling state or organization. With respect to the former, of course, every state or other affected organization has the power to correct bad information. Indeed, the success of the opponents of American and World Bank anti-corruption campaigns attests to their powers of persuasion (as well as to their resources and connections to the international media). Surely resources devoted to convincing the world of the general failings of anti-corruption campaigns can also be used to vindicate reputations unfairly sullied.

But what about the problem of anti-corruption campaigns as a screen used to hide the real intent of the campaigners—that is the cynical advancement foreign policy goals of the United States (and in this case, it would be argued, that of its running dog, the World Bank)? There is a kernel of truth in this suggestion. See Larry Catá Backer, Soft Extra Territorialism and American Anti-Corruption Campaigns, Law at the End of the Day, September 12, 2006, available at . Yet the argument proves too much by far. If corruption is a problem, and if interference from outside sovereigns, like the United States, poses a danger of a different sort of corruption, then it might be possible to avoid the latter by fixing the former—or at least by attempting its repair. Yet what emerges from a review of the activities of complaining nations is s deployment of capital not to fight corruption but to fight interference with their internal affairs by other states (also affected by this corruption) that seek to take matters into their own hands. This argument thus actually strengthens the position of American and World Bank anti-corruption interventionists. It suggests that the only reason for outside interest in fighting corruption are interests other than the reduction of corruption. It shifts attention away from internal corruption to international power politics—leaving the field clear for the maintenance of a status quo for corruption. It suggests, at its limits, that corruption ought to be permitted to flourish as a means of combating foreign interventionism. But this is perversion. It suggests that criminality is a foreign policy positive in the hands of corrupt states and an excuse to avoid taking politically difficult action internally to curb corruption within the private and the state sectors.

The deserved-reputation-for-corruption-imperfectly-imposed critique suggests a different set of arguments. Again there is a kernel of truth in the suggestion. The risks of prosecutorial discretion are real. See Larry Catá Backer, A Caution From Lord Mummery: On the Uselessness of Law, LAW AT THE END OF THE DAY. Yet it also implies perversity. It suggests that because anti-corruption campaign implementation is inefficient, no state ought to have an obligation to solve its corruption problem. Unless all states are lifted form corruption at once and in equal measure, the campaign against corruption will itself be corrupt (at worst) and unfair (at best). Again, the argument seeks to externalize and deepen a set of excuses to avoid an internal confrontation with corruption. The difficulty wit corruption is thus not the inability of the state to confront the issue, but the problem of unfairly imposed systems of foreign efforts to eradicate the problem. It suggests, again, a certain passivity on the parts of states with corruption problems (or perhaps a certain paralysis). It then inverts the implementation problem into a reason not only for doing nothing, but also for resisting outside efforts to bring pressure to bear. Yet, consider the result—states subject to outside anti-corruption campaigns now bend their policy to effectively defend corruption within their borders (and as exported through the cross border dealings of the corrupt in those states).

And that, ultimately, is the tragedy of these arguments. It externalizes and inverts blame. It seeks to demonize external efforts to reduce official or systemic theft. It makes states subject to corruption into the great international champions of corruption. Now THAT is corruption indeed!

2. While anti-corruption efforts are important, they ought not to get in the way of development strategies (“But getting rid of corruption is not a silver bullet. The bank should not overemphasize its anti corruption agenda at the expense of other policies required for development.” Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-1 (quoting Robert Dañino, a former senior vice president of the World Bank)):

Here, an argument intimated in the “unfairness” critique takes center stage. It plays on as astute assessment of Western norm structures, implies a hierarchy of wrongs, suggests that the wrongs against which the United States and the World Bank proceeds is “less wrong” than the wrongs perpetrated against deserving individuals (the objects of the aid programs) and thus anti-corruption campaigns do more harm than good when they effect (as they will inevitably tend to effect) the ability to deliver goods to the deserving poor. Thus, recent reports described that the board members of the World Bank (heroically?) “forced the deletion of language suggesting that the United Nations’ goal of reducing world poverty by 50 percent by 2015 would have to take second place to the bank’s drive against corruption.” Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-4.

But this argument contains within it a bit of bathos as well. As John Githongo, living in exile from his native Kenya for his anti-corruption activities, has suggested: “Let’s face it, promotion at the World Bank comes form spending money. . . If you’re in the field, and too many complaints about corruption interrupt your spending, it has an impact on your career trajectory.” Id.

The argument ultimately goes to the issue of conflation—what does one put together and what does one keep separate. On the one hand opponents of anti-corruption campaigns suggest that it is important to separate anti-corruption efforts from programs in aid of the most deserving of state to state aid. Alternatively they suggest that using outside pressure of any kind ultimately hurts the most innocent citizens of the corrupt state targeted. The greatest victim of anti-corruption campaigns are the most innocent and vulnerable portions of a targeted political community. On the other hand, there is a bit of the inversion of victimhood to this argument. Much like the bandits who hold police responsible for the deaths of the hostages that the bandits killed (the usual explanation is something like: “we told them that any intervention will force us to kill the hostages”), states targeted for anti-corruption campaigns argue that the intervening states will be completely responsible for the misery suffered by the vulnerable “innocents” who are the real victims of anti-corruption campaigns.

The ethical inversion in this repositioning should be extraordinary. The conflation it suggests is false. Yet it works, as both conflation and inversion! It ought not. States who hold their own vulnerable populations hostage to their refusals to confront great systemic issues of theft (itself increasing the misery of these vulnerable populations) commit two wrongs—a failure to confront theft and a deliberate campaign against the welfare of their citizens. It ought not to be able to beg for foreign funds (to make old wrongs right, to alleviate the misery of the suffering, to aid in development, etc.), then use those funds for the pleasure of the corrupt, deepening or at least extending the misery of the ignored target populations, and then suggest that anti-corruption campaigns are both unrelated to the aid demanded and any effort to reify this relationship will only work to the detriment of the target populations (and the receiving states would see to that!). Such states ought to be made to answer for both its diversion of funds (whether internally or externally generated) and the effects of those diversions on the rights of the poor and the state’s obligations to its political community.

3. Corruption is an internal matter for a state and neither other states nor international organizations ought to divert assets to anti-corruption efforts (“’The bank,’ a board member said, ‘should not become a world policeman pointing its moral finger and conditioning everything on whether or not a country is believed to be corrupt. The more the bank goes beyond its old mandate of reducing poverty, the more problems will come up.’” Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-4):

The anti-corruption argument assumes a bizarre form when it is put up against the argument I consider here—that anti-corruption campaigns are a matter of internal governance and that outside attempts to impose such governance rules serve as a cover for forced harmonization of rules to the benefit of the outside powers. Again, there is a kernel of truth in this suggestion. See Larry Catá Backer, Soft Extra Territorialism and American Anti-Corruption Campaigns, Law at the End of the Day, September 12, 2006. Extraterritorially applied campaigns against perceived criminal conduct can serve as a means of forcing a harmonization of understanding of both criminality and the particular behaviors that constitutes such criminality without regard to the desires, practices, understanding or wishes of the target state. But this argument, to be effective, requires some expression of a counter vision of anti-corruption, or even a clear statement of the rejection of the idea of corruption as a crime as understood in the West.

It would be courageous for a corrupt state to declare that it is quite content with the behaviors of its officials, that such conduct is culturally sanctioned, that it reflects the will of the people, that it maximizes efficiency and cultural or social objectives in that political community, that it rejects Western notions of corruption (its definition meaning and application) and that it would continue to give expression to its national cultural norms even against the desires of other foreign and even powerful states. It would be harder to argue with this position. But no state has taken this position. All are eager to climb on some sort of internationalizes anti-corruption bandwagon, at least as formally expressed in global instruments. But none seeks to actually engage these norms internally. It is as if states found it convenient to agree with international standards (perhaps as a means of acquiring something valuable in exchange—in which case they could be said to have sold their cultural and social mores for the equivalent of 30 pieces of silver, and perhaps that ought to be actionable as well!) with no intention of actually conforming their behavior to those standards. After all, those standards would not be well known internally. States could keep two sets of laws—one to show the international community and the other for internal consumption. Many states seeking to modernize, from 19th century Japan and China, to modern Lain America, have at times been tempted by this two books formula. The People’s Republic of China confronts this issue as it seeks to enter the global marketplace. For Muslim majority states, this issue goes to the core of their relationship with non-Muslim majority states.

Sadly, the reality is somewhat different. States that seek to internalize the prosecution of corruption don’t. There are no trials. There are no sweeping efforts to round up those responsible. States do not focus their prosecutorial and judicial systems to the task. They leave it to others and then complain when the others act effectively. The argument actually, thus suggests its opposite—do not interfere with our internal affairs, expect little from us, but continue to provide us with aid to relieve the sufferings of our poor, make up for centuries of abusive relationships, aid our development, and ask no questions. For all its faults in implementation, even the Chinese anti-corruption efforts appear as a welcome principled contrast to this stance.

4. Anti-Corruption campaigns are the subterfuge through which the United States and its running dogs, like the World Bank, will seek global domination (“Some bank officials say that the widespread concern about Mr., Wolfowitz’s approach reflects lingering doubts among many international aid specialists about his selection for the bank post by President Bush.” Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-4):

This last argument actually gets to the heart of the matter. In a sense, the first three arguments present principled objections to foreign anti-corruption campaigns with extra territorial direct or indirect effect. They have as their basis, law (sovereignty and process rights within a nation state), politics and culture. But this last argument, an argument that goes to power, is probably the one that provides the greatest motivation among many of the states resisting anti-corruption campaigns. More than anything else, the opposition to American led anti corruption campaigns, whether originating in the White House or through the World Bank, can be best understood as a sort of knee jerk opposition to anything that might be understood as a marker of American hegemony. Thus, it is not objection to foreign standards that vexes, it is objection to foreign standards formulated by Americans that causes concern. Likewise, it is not foreign determinations of corruption that annoys, but determinations made by Americans or people or institutions seen to be instrumentalities of the American state that enrages.

In this anti-American crusade, targeted states find an interesting ally—the Europeans who continue to seek to undo the political settlement of the Second World War by undermining American power when they can. Direct challenge is usually difficult, but challenges in global bodies, and masked in theoretical constructs, work just as well. So let us stand on principle, our British and French friends will suggest—the principle that American projects are always suspect as grounded in imperial objects and hegemonic intent.

At the World Bank, of course, all of this is bound up in the politics-of-the-seraglio backstabbing of its American backed President, Mr. Wolfowitz. Thus, World Bank mandarins anonymously spread doubt about the qualifications of the World Bank President. “The doubts center on Mr. Wolfowitz’s role as a leading advocate of the American invasion of Iraq, with many critics contending that his zeal on corruption reminds them of what they say was his messianic but unrealistic faith that installing democracy by force in Iraq, and by other means through the Middle East, would bring stability to the region.” Steven Weisman, Drive on Corruption Angers Some at World Bank, THE NEW YORK TIMES, Sept. 14, 2006, at C-1. But the attacks are not merely on character. Thus, there is a suggestion of internal distrust “in part, because according to some, he has not given enough credit to his predecessor, James D. Wolfensohn, who spoke out against corruption and set up the Bank’s first investigation unit in the late 1990’s.” Id.

The anti-corruption debate, thus, serves as a proxy for higher stakes politics, on the one hand, and for the lowest order internal power playing, on the other. It serves the interests of states seeing to hobble American power, in general, and to punish the Americans for their adventurism in Iraq, on the other, by getting at the perceived architect of that policy, now at the World Bank. The critique against anti-corruption campaigns, then, is not about corruption, but about power, American power in particular. Its consequence, of course, is that corruption itself becomes an object to protect as a means to “getting back” at the Americans, their war in Iraq, their attempt to aid in the assertion of internationally recognized behavior norms, and the architect of American foreign wars.

States act in the service of corruption when they use corruption as a proxy for other battles. Their critiques thus ought to lose a substantial amount of legitimacy. There are no ethics to these critiques. Their inversion of principle constitutes ethical perversion. And that is a shame. While states quarrel over the power to fight corruption, corruption will continue to thrive. As states protect their rights to act against corruption, cultures of corruption will become more deeply embedded. Again, and perhaps as always, individuals lose in the service of other causes.