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The New Testament cannot be normalized without engaging in sophistry and, perhaps, hypocrisy.
Recently on the Left Business Observer list-serve, someone quoted the famous biblical cliche, "Let the dead bury the dead." It is a seemingly paradoxical passage, so even though the saying has been reduced to rote as a thought-stopping thing to say to a person who dwells too much on the past, it still occasionally provokes a need for explanation by those who wish to know what the words actually mean. Thus very soon another list-mate posted a homily on the passage by Father Francis Jamieson.
I quote the passage from Luke at length.
To another he said, "Come, follow me." But he said, "Lord, let me first go and bury my father." But he said, "Leave the dead to bury their own dead; but as for you, go and proclaim the Kingdom of God". Another said, "I will follow you, Lord, but first let me first say farewell to those at home." Jesus said to him, " No one who sets his hand to the plough and then looks back is fit for the Kingdom of God." (Luke 9:59-62)
Fr. Francis' response is to turn this passage into a "hard saying", a demand by Jesus for the extra measure of total commitment incumbent upon disciples. He begins by saying,
We have seen that Jesus points his followers beyond natural family ties to more urgent and important matters. Jesus did not denigrate family ties of affection and duty, but he placed them in a far wider context.
and concludes his homily with,
From the very beginning of Christianity - as we read in the Bible - the Christian people, that is, the Church, has recognized that working for a living and raising a family are a good and proper way of living a Christian life. Many people, however - and not just monks and nuns - have heard Christ's call to renounce normal ties of family and country, and to keep before their eyes the ideal of total discipleship. All of us should know that Christ asks nothing less than whole of our heart and life. No half measures, or when we are judged we shall hear him speak in the words of Revelation 3:16. His discipleship is not something that can be undertaken lightheartedly.
I am sorry but this will not do. What the dear Father does is finesse the issue of the radicalism of the Gospel in order to provide a way out for anyone who is not a disciple. He does so by ignoring the historical context of Luke and the other Gospels, and thus forcing them apply to views necessary in our time where the division of labor between the good minister of God and the dedicated middle class householder is the norm. It is the strained normality of the homily which provoked me. The "strain" is in how the homily elides the existence of the difference between the call of "discipleship" and everybody else. The good Father does not want to be too confrontational. He wants to sound reasonable. He wants to sound almost Aristotelian in his description of the Gospels. Aristotle desired the golden mean in all things, but the Gospels are not Aristotelian, they are extremist in their views and a reaction to extreme times. The interpretations of Fr. Francis seek to fit those Gospels into our modern world from a middle class point of view.
At base, Fr. Francis' homily provoked me in the same way that any misinterpretation of a piece of literature might provoke me. Those who wish to turn the horrors and ecstasies of the human mind into banalities; those who wish to transform the radical demands of past revolutionary thought into a way of life that can accommodate comfortable living in the present, those who wish to turn the "otherness", the specialness of ancient literature into something "civilized". The story that the character Odysseus relates in the epic that bears his name is one where the traveler across the wine-dark seas either enters a land where the "civilized" notions of reciprocal relations between hosts-guests are acknowledged (xenia), or the fiercer notions of "eat or be eaten" reign and every traveler maybe turned into a sacrificial meal. But one can only discover the depth of representation of reciprocity and ritual in Homer's Odyssey, and thus discover the meaning of the narrative repetitions by understanding the historical source. The stories told in Luke and the other Gospels have that kind of ancient strangeness to them, a strangeness that can only be appreciated in historical context.
"Do not think that I came to bring peace on the earth; I did not come to bring peace, but a sword. For I came to set a man against his father, and a daughter against her mother, and a daughter-in-law against her mother-in-law; and a man’s enemies will be the members of his household. He who loves father or mother more than Me is not worthy of Me; and he who loves son or daughter more than Me is not worthy of Me. And he who does not take his cross and follow after Me is not worthy of Me. He who has found his life will lose it, and he who has lost his life for My sake will find it." (Matthew 10:34-39)
The amount of disrespect for family values found in this passage, and similar ones through out the New Testament cannot be underestimated. The Jesus, who is created by Luke and Matthew and the other Gospels will not accept the traditional family values of his time because he believes that such values are obsolete for his world. He had nothing but scorn for those who accepted the cliche of "values" on their face, and without quetions. He tried to renew moral values by subverting them. Take a few other controversial passages:
"I have come to cast fire upon the earth; and how I wish it were already kindled!" ... "Do you suppose that I came to grant peace on earth? I tell you, no, but rather division; for from now on five members in one household will be divided, three against two and two against three."... (Luke 12:49,51-53)
"If anyone comes to Me, and does not hate his own father and mother and wife and children and brothers and sisters, yes, and even his own life, he cannot be My disciple." (Luke 14:26)
The traditional kinship groups were breaking down and the moral values that shored up those kinship groups were what needed to be attacked if anything was to change in the Roman World. In one sense Christianity was a solution to the breakdown of the traditional kinship relations, which premised morality itself on kinship. What gave early Christianity its energy was the very fact that it sought to establish a morality that would transcend the local Gods of home, hearth, kin, and ethnic-kind. The Roman World itself had transcended such Gods in its universalizing and often oppressive political project. The whole of the Mediterranean and much more was one social network. Moral systems based on kinship, the small city-state, or ethnic kingdoms, simply did not make sense.
The significance of Jesus of Luke and his call to a potential disciple not to bury his father is even more significant in this context. The major ritual of ancestor piety and kinship solidarity of all peoples in the Eastern Mediterranean at this time was the burial of the father. For example, all major Greek cities had, detailed funerary laws to regulate such burials. This was because the funeral rites were a dangerous time for the society as a whole. The importance of the funeral of a dead patriarch to a kinship group is what made the funeral dangerous to society. In Greece the funerary laws stretched back to the origins of independent City-States. Such laws were mainly used to regulate kinship groups who often used the times of funerals to rally fellow kin for "revenge" in cycles of reciprocal violence with rival kinship groups. The City-States regulated funerals in order to forestall such rivalries, which were destabilizing to the state. Yet, even though these regulations repressed the danger represented by funeral rites, this did not mean that such funerals lost their importance. For a son in particular to ignore the funeral of a father, was not only great impiety, but an attack on the social structure itself.
The early Christian attack on the kinship basis of the social structure reflected a reality that the old deep-kinship systems were falling apart. They were being torn asunder under pressure of the intricate social networks created by the integrated Roman social-imperium of the Mediterranean. But the ideological-religious reasoning that justified the Christian attack filial piety was the invention of the Early Christians. (Of course their had been other mystical religions that had invented similar world-views.) The good news of Luke is that the world is going to end, boys and girls, and the Kingdom of God shall reign on earth, and those who know best should break all the normal ties of kinship, community, property in land, livestock, and slaves, leave behind their old oppressive ways of relating to wife and husband, father, son, daughter, and live the Christian way of life. Now! Soon, very soon, the Kingdom will come, and all shilly-shallying is either hypocrisy or wishful thinking. Early Christians could justify their actions as great dividers of families and kinship groups because they universalized religion and at the same time proclaimed the coming end of it all.
Our little middle class world view can never be made to conform to the very strange, usually frightening, often generous and totalistic (if not totalitarian) values that actually motivated the New Testament writers in their lived-experience of eschata and their shivers of chiliastic hopes. The world hoped for, and represented in the Gospels, did not conform to current ideals of "family values." It is not only the few who are called from the family in order to follow in the footsteps of Jesus and his apostles but everyone who wants to survive the soon to come end-times. The urgency of the Gospels is precisely what is missing from Fr. Francis' homily. You must drop everything, ignoring all kinship and community ties, to work toward the coming end of time. This is the "historical" view of Luke, and Fr. Francis' explication of the passages where the gospel writer puts into Jesus' mouth words meant to divide children from filial and familial piety, only seeks to explain away such passages for the comfort and benefit of his modern followers.
But there is no "normalizing" of Luke and the Gospels. This fact is often frightening for modern society. There will always be people - for good or ill, for help or hurt, for violence or generosity - who will try to translate the radicalism of Jesus in the Gospels into a modern context, and whether we come up with St. Francis or the Grand Inquisitor, the preferential choice for the poor or genocidal Jesuits, the Catholic Worker or Opus Dei, we can be sure that the people who make such a commitment are true to at least one side of the original extremism. Homilies such as those by Father Francis Jamieson, no matter how demanding, only serve to provoke and then properly pigeon-hole the guilt of his Christian followers. They are thus soothed for wanting "normal" lives, with family and children and a middle class home. But in the world view of the early Christians, those who were not disciples had were condemned for ignoring the urgency of the times; all those who were disciples must need to break the ties of kinship and familial piety or suffer the loss of their souls. There was no in-between. In a couple of generations people woke up and discovered that the world was not going to end.... at least not very soon. This meant that real institutions needed to be established. Thus began all of the excuses and rewriting of church history. But even at this time, there was still some radicalism left in the Christian project. It was not until Christianity became an official religion of the state that the Church fathers began to systematically purge the extremes that were the dominant current of early Christianity.
Perhaps we should be grateful to the likes of Fr. Francis for normalizing Luke. After all the spirit of those early Christian writings are simply too extreme and at times extremely radical, too fundamentalist and at times deeply fundamental, and certainly little of it has anything to do with our current life-ways, the constant inflation of desires of consumer capitalism or the countervailing desire for retreat into the safety of normality through the nuclear family. All of my Jesuit teachers were good "Death of God" theologians and they taught me well that there is very little in the New Testament that can actually conform to our hopes for a "normal" life or even capitalist self-interest. So excuse this little bit of a religious tirade from this Jesuitical atheist. But I don't write my little pieces to bring comfort, yet to disturb my own complacency.
Jerry Monaco
New York City
10 November 2006
This work is licensed under a Creative Commons License.
music: Paint it Black - The Rolling Stones |
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Today I was supposed to do other work. I was supposed to run and clean house and buy decent running shoes, so I could run some more. I was supposed to write. But instead I read Sartre and Shakespeare. I read Sartre on the Algerian War and something in it reminded me of one of those least studied plays, Troilus and Cressida reputedly by the author we know as William Shakespeare, who if he existed should fall into anonymous legend and deep dream in the way of Homer and the unknown creator of all of those Humphrey Bogart movies.
It is not widely known that Homer wrote about the Vietnam War and that Aeschylus wrote about our imperial adventures in Latin America, but just reading "The Iliad" and "The Persians" should convince you that Shelley was correct and that poets live in a stream of history that flows from future to past as it reshapes our thoughts in each year of renewal.
So why should it surprise you that Shakespeare, the only true author of a book of "Revelations", wrote on the war in Iraq?
Why do we fight, for a cause that is no longer believed in?
Since the first sword was drawn about this question,
Every tithe soul, 'mongst many thousand dismes,
Hath been as dear as Helen [oil, Iraq]; I mean, of ours:
If we have lost so many tenths of ours,
To guard a thing not ours nor worth to us,
Had it our name, the value of one ten,
What merit's in that reason which denies
The yielding of her up?
Spoken by Hector in Act II, Scene 2...
**
The Commander is Discredited who ignores the conference of his followers:
The specialty of rule hath been neglected;
And look how many Grecian tents do stand
Hollow upon this plain, so many hollow factions
Spoken by Ulysses, Act I, Scene 3
**
And when the degree of justice is taken away and the leader acts arbitrarily, as if there were no rule of law except for the will of the great leader himself, what then will happen?
Take but degree away, untune that string,
And, hark, what discord follows! each thing meets
In mere oppugnancy: the bounded waters
Should lift their bosoms higher than the shores
And make a sop of all this solid globe:
Strength should be lord of imbecility,
And the rude son should strike his father dead:
Force should be right; or rather, right and wrong,
Between whose endless jar justice resides,
Should lose their names, and so should justice too.
Then every thing includes itself in power,
Power into will, will into appetite;
And appetite, an universal wolf,
So doubly seconded with will and power,
Must make perforce an universal prey,
And last eat up himself.
Spoken by Ulysses, Act I, Scene 3
There is more... but why should we resist learning about love and power, war and hubris from Shakespeare or Shelley or Sophocles or Tolstoy. It is all there. We have seen folly before, and we will see it again.... At least I am hopeful that folly will not disappear. But perhaps we should at least have leaders who will not lead us to disaster, the destruction of earth and culture, the heat and flood, and atomic thunder.
I am not asking for Utopia. I am only asking that the relative self-interest of long-term survival should outweigh the short term gain of power, profit and war.
Jerry Monaco
New York City
9 November 2006music: Sittin' On The Top Of The World - Bob Dylan |
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Is it possible to imagine an intellectual influenced by Foucault writing a parody of a United States Supreme Court opinion? Yes, but fortunately for us there is no need to write such a parody because Justice William O. Douglas got there first. This came home to me when I reread Douglas's (in)famous opinion in Griswold v. Connecticut. (GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).)
Peter Irons in his A People's History of the Supreme Court, puts it aptly, "Douglas was a former Yale law professor, and his Griswold opinion read almost like a parody of academic jargon." (p. 429). In other words, Douglas did not only want to find a "right to privacy" in the Constitution he also wanted to send up all of those who wrote opinions as if 'the rule of law' could be derived from a set of propositions with something like deductive accuracy.
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman… (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' (Griswold v. Connecticut 85 S.Ct. 1678, 1682.)
(Is it any wonder that Scalia despises Douglas?)
There is no doubt that Douglas was having fun with the idea that he could find a right to use birth control in the zones, penumbras, emanations of the constitution. The dissenting opinion that he cites as authority is of course his own. If Nabokov could have written a few opinions for the U.S. Supreme Court (and why not?) they would probably exhibit some of the self-referential humor that Douglas allowed himself.
Before I went to law school William O. Douglas was one of the few justices who was able to inspire within me some bit of hope for the legal system. It was precisely because he was able to write legal decisions that were self-critical of the exalted majesty of legal reasoning that I looked upon him with some kindness. All judges, all writers, wear a mask and the mask is as much a part of reality as the face... in fact the face is just another mask as the 'voice' of a writer is never the voice you will hear when he talks to the butcher. So I understood that Douglas when he wrote his decisions and acted on the national stage as Justice Douglas, by necessity was talking in a legally mediated voice, a voice that was never completely his. And yet, when he put on the mask of Justice Douglas, and when he decided to write opinions in the voice of William O. Douglas, I knew that we no longer simply 'receive' the 'law of masks', but rather something that felt true to the artifact of the law as well as to everyday life.
So it was a small surprise when I arrived at law school that I discovered that not only conservatives despised Douglas, but even most of my liberal professors. They despised him for the same reason that I admired him.
Peter Goodrich in his wonderful tour de force (if a little too intensely pomo) The Languages of Law: From Logics of Memory to Nomadic Masks speaks wonderfully of the masks of law. It is my contention that in many of his opinions Douglas quite self-consciously tried to show those masks as masks, tried to reveal the voice of law as a legitimation of violence and rapaciousness, while at the same time assuming that there was somewhere another mask he could wear that looked to a more realistically hopeful future and another voice that he could sound, a voice emerging from Shelley and Wordsworth, two of his favorite poets. By the time the Warren Court had ended he knew that the mask he would wish to wear on the national stage and the voice he would wish to hear in his opinions could never actually be worn or heard, yet in many of his opinions he would reflect self-consciously on what could be seen and heard by the law and what the principalities and powers have always already pre-ordained what must be seen and heard of the law.
Listen to Douglas's voice in his dissent in Sierra Club v. Morton, where he claims that inanimate objects should have standing to sue the United States Government for possible environmental damage.
Mr. Justice DOUGLAS, dissenting.
****
The critical question of 'standing' would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature's ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. (My emphasis).
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The corporation sole--a creature of ecclesiastical law--is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a 'person' for purposes of the adjudicatory processes, whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes--fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water--whether it be a fisherman, a canoeist, a zoologist, or a logger--must be able to speak for the values which the river represents and which are threatened with destruction. (Sierra Club v. Morton 92 S.Ct. 1361, 1370 (Douglas, dissenting.)
The stones will stand up and speak! This is the ancient wisdom of the New Testament and ur-Myths of the matricentric return to the Dike of Love and a further return to the older goddess Themis and her Furies, the old justice of primitive communism that was mother earth herself. (Or at least this was the leftist myth promoted by way of Bachoffen, Engels, Erich Fromm, radical Feminists, and New Age occultists.) Douglas was good enough to take a cue from his own experience and "discover" this return to earth. He found in the legal fictions of Maritime Law and Corporate Law, a legal reason for an "ecological unit" to find advocates against a Federal Agency which wanted to allow the Disney corporation to build a resort in a national wilderness area.
The legal issue here is the wonderfully absurd notion of standing. It is a piece of transcendental nonsense and non-lawyers will need some brief explanation of the concept. The doctrine of standing derives from Article Three of the United States Constitution and the "case or controversy" limitation that the early Supreme Court placed upon itself. If there is no case or no controversy to be judged then there is no reason to deliver a judgment. One of the ways to decide whether there is a case or controversy involved when a plaintiff comes before the court is to ask if the plaintiff has been 'injured in fact.' The plaintiff herself must be somehow injured for that plaintiff to have standing to bring the case. Standing is a jurisdictional issue and since subject matter jurisdiction cannot be waived courts will often examine whether standing in fact exists even if the parties to the case do not raise the issue. Before the Warren Court the Supreme Court had a narrower view of standing but during the 1960's the doctrine of standing almost looked as if it would become obsolete, especially in the area of administrative law. Beginning with Sierra Club v. Morton the court began to once again tighten the standards. Thus there are many administrative rules which the administrative agency can simply ignore and no one has standing to make sure they are enforced.
For an example I refer the reader to ALLEN v. WRIGHT, 468 U.S. 737 (1984). The situation in Allen was the following. According to the IRS Code the Internal Revenue Service is not supposed to grant tax exempt status to racially discriminatory private schools. The plaintiffs, who were black, claimed that the IRS was granting tax exempt status to many such schools. They claimed that as attendees of public schools in school districts that were in fact segregated, granting tax exempt status to these white flight public schools caused them harm. This sounds like a reasonable argument to me. In the real world if you believe that integrated schools are a good and granting tax exempt status to racist private schools is harmful and the agency that is supposed to monitor tax exempt status is ignoring its duty then one would think that somebody somewhere must have received a harm. But Justice O'Connor, writing for the court did not grant the parents standing, essentially saying that no harm was done to the plaintiffs. The problem here is that if the parents don't have standing then no one has standing. Thus we must conclude, and this is never stated in O'Connor's opinion, that when the IRS grants tax exempt status to racist private schools, an action which is prohibited by 'the rule of law' there is no injury done to anyone in the world.
Professor Douglas O. Linder on his website Exploring Constitutional Law has some rye comments about this aspect of the doctrine of standing.
Standing doctrine confuses both lower courts and litigants, because the Court manipulates the doctrine to serve other objectives. When the Court wants to reach the merits of a case, the standing doctrine is often relaxed. Conversely, when the Court wishes to avoid deciding the merits of a case--or perhaps, when it wants to shut a whole category of cases out of court--, the requirements for standing are tightened.
Those who believe that the rule of law is somehow derivative from principles or texts could never make such a statement. To believe the above essentially draws the curtain back and reveals the man (sometimes, but rarely, the woman - see above Justice O'Connor) who pulls the levers.
Douglas wanted to pull back the curtain. Towards the end of his career he wanted to show the hand that manipulates the judicial "opinion", as if saying that there are many occasions where the rule of law is no more than the judges opinion. In his dissent in Sierra Club v. Morton Douglas wants to show how "standing," is mostly used as an excuse for the Court to blind itself. Thus by limiting who the court can see as a party the court can also limit whole classes of cases it can hear as a court. If the court does not want to see you standing in front of it then by definition the law is unable to see you or your injury. Like magic, from a magician who is believed, a charlatan who wears the mask of the law, the case disappears from the box and there is no controversy. In Sierra Club v. Morton the Sierra Club has no standing to sue because it didn't allege in its complaint that any of its members had a relation to Mineral King, the mountain and valley where the Disney Corporation wanted to build a resort The court's own inability to see the party is displaced, through legal reasoning, onto the party who is suddenly unable to be seen, something like Ralph Ellison's invisible man. In relation to this particular suit the party is legally invisible. It then becomes the party's inability to stand for the issue in the conflict at hand that is made the excuse for the Court's inability to see the party's relation to the conflict. It was Sierra Club v. Morton that began the roll back that resulted in Allen v. Wright and thus the parents of black children do not have standing to challenge the Internal Revenue Services' refusal to enforce a law that would refuse tax breaks to segregated white flight private schools. If an administration or the IRS wants to violate the law by giving tax breaks to racist non-profits then nobody has "standing" to challenge the law.
But Douglas wanted to do something different, probably more radical than he realized. For him the earth itself could provide standing, thus the legal fiction of the corporate person that is the Disney Corporation, could be countered by the legal fiction that a forest could also be a recognizable 'entity' thereby providing a place for the stand of trees to be represented in the legal fiction that is called 'standing'. Fiction upon fiction allowed Douglas to stand trees on the earth itself thus finding some reality in all of the legal metaphors and narratives.
Douglas shows us how flexible any notion of the "rule of law" actually is and does not hide the fact that he does so… If the judge wants to make a "rule of law" then all that he has to worry about is whether someone is interested in the particular fiction he wants to tell. The fiction of giving standing to rocks and tress and rivers only has to be accepted by a critical mass of people who believe in it as a legal 'reality' and then it will become true. A little known fact is that Douglas and his good friend Justice Hugo Black were the only two modern justices to dissent from the most destructive legal fiction ever invented: i.e. that corporate business institutions should be granted constitutional rights as legal persons. (See Wheeling Steel Corp. v. Glander 337 U.S. 562, 579 (1949), (Douglas Dissenting.)) Douglas could never win that battle. (At this point, a substantial revolution would be required to take constitutional rights away from these immortal fictional persons that we call Corporations.) But as long as we are able to see corporations as legal persons why not allow rivers and forests the same fictional status to defend "themselves" against corporate exploitation. Douglas's attitude could be stated in something like the terms of Georg Lukacs' in this way: As long as we are on this path of reification let me show you how it can be done without a slight of hand. I have no need for mystification. I can create legal fictions from whatever story I choose. As long as we as a court have the power we might as well use it to tell a good story. The only thing the court has to worry about is whether anybody will be engaged enough by this fiction to accept it as a metaphor we can live by.
In some of his best opinions Justice William O. Douglas was performing what Ernst Bloch called in his book The Utopian Function of Art and Literature 'anticipatory illumination.' Anticipatory illumination is a kind of vanishing mediator between a vision of a possible "reality" and the realization of the subject within "reality." It appears through working; the way we imagine how working might be and the working we do when we create symbols and recreate them for ourselves. Anticipatory illumination is both a critical stance toward a work and a way of working through. It's original meaning for Bloch was to explain why a work of art was strong - revelatory of the past and open to anticipation of possible futures - and also a way for a critic or reader to see into the work of art, see how it provides possibilities of hope we are missing in our unimaginative drudgery of everyday life. Douglas, on occasion, showed how the law was a fiction that could be used for anticipatory illumination and showed how a 'judge-critic' of the law could create an imaginative space open to the hopeful choices of our future.
This post has been Carnivalized at Blawg Review #38 @ Legal Underground. Also take a look at previous Blawg Reviews @ http://www.blawgreview.com/
Jerry Monaco
New York City
31 December 2005
This work is licensed under a Creative Commons License.
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Jerry Monaco's Philosophy, Politics, Culture Weblog is
Shandean Postscripts to Politics, Philosophy, and Culture
http://www.livejournal.com/users/monacojerry/
His fiction, poetry, weblog is
Hopeful Monsters: Fiction, Poetry, Memories
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Utopiamusic: Pavlov's Ball - Aimee Mann |
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Very strange!
I was walking in my neighborhood in Astoria, Queens. I walked past the Catholic Church around the block and it suddenly occurred to me, as if the demons were whispering in my ear, that if Alito is confirmed as Supreme Court justice the RC church will have established U.S. Supreme Court hegemony. Count them - Scalia, Thomas, Kennedy, Roberts, and, now Alito makes five.
As a radical atheist, but ironically Jesuitical, ex-Roman Catholic I find it quite amusing that the predominance of fundamentalist Protestantism in U.S. politics, spearheaded by anti-abortion crusaders, has led to a Papist Supreme Court. What would have all of those quasi-New Left Franciscan nuns and priests who taught me history and religion thought of this situation? What would have all of those rabid anti-Catholic Protestant Know Nothings have thought?
I was going to write a long post on this but after I wrote the above two paragraphs I came across the following at Alex Cockburn's Counterpunch:
Let's hear it for Protestant fundamentalists (American variety) yet again. Was there ever a more pragmatic bunch? After centuries of howling No Popery and denouncing the Whore of Rome, they're now trying to give us a US Supreme Court that will, in the probable event of Alito's confirmation, boast no fewer than five Roman Catholics, a clear majority: in order of arrival on the bench: Scalia, Kennedy, Thomas, Roberts and, most likely, Alito.
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The Washington Post has an interesting article on CIA secret prisons, which proves that for the ruling class of the U.S. "the rule of law" and "due process" is applied selectively. I quote the beginning of the article and recommend that all who are interested read the complete report.
The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.
The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.
The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions.
The existence and locations of the facilities -- referred to as "black sites" in classified White House, CIA, Justice Department and congressional documents -- are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.
The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long.
While the Defense Department has produced volumes of public reports and testimony about its detention practices and rules after the abuse scandals at Iraq's Abu Ghraib prison and at Guantanamo Bay, the CIA has not even acknowledged the existence of its black sites. To do so, say officials familiar with the program, could open the U.S. government to legal challenges, particularly in foreign courts, and increase the risk of political condemnation at home and abroad.
CIA Holds Terror Suspects in Secret Prisons Debate Is Growing Within Agency About Legality and Morality of Overseas System Set Up After 9/11 - By Dana Priest
Washington Post Staff Writer
Wednesday, November 2, 2005; A01
The demand for the rule of law is a conservative demand in normal times but quickly turns into a radical call in times of 'emergency.' It is because of the fact that in the U.S. there are no conservatives left in politics that radicals must fill the vacuum. (A non-trivial question for radicals interested in the history of the U.S. ruling class is: Who was the last conservative? Perhaps Robert Taft.) It is the weakness of the left that we must be the conservatives demanding that these rulers of our lives keep to some minimum of the rule of law and provide basic due process.
I propose to use the occasion of the elite media's acknowledgment of secret prisons, and the exposure of an international CIA gulag, to make a small comment on the affair of Valerie Plame. The connection between the Plame Affair and CIA secret prisons, may seem a bit odd but it I think they are thematically the same story. It is an indication of the ideological weakness of the U.S. left that the responses to the Plame affair has been limited to schadenfreude. We are happy that the likes of Karl Rove and Scooter Libby have been caught out in the cold of their own hypocrisy and lies. We would be happier still if they were sent to jail, but that seems to me unlikely. But is this the limit of our contribution to the Plame affair? Is it possible that Rove and Libby were engaged in an unwitting service to democracy by their exposure of a covert operative?
It seems to me completely unnecessary to further expose the pro-war propaganda campaign that the United States Government and the Bush regime engaged in during the lead up to the invasion of Iraq. It was obvious at the time. Those who believed the Bush-Blair propaganda campaign need to look into themselves and ask what made themselves so susceptible to nationalist fantasy. They should make amends by becoming anti-war activists. The lesson that the left should be teaching is simple skepticism of those in power. We should be pointing out that there has rarely been a war advocated by a powerful state that has been justified in retrospect. Yet, all wars are justified at the time by the propaganda of the state and the rulers and war propaganda more often than not turns out to be cooked. The role of a well functioning intelligence agency is to prop calls of war made by the rulers with the necessary scenery of enemy atrocities and threats. At times, the intelligence agency will also engage in covert operations that are elaborate stage productions aimed to convince the true enemies of the rulers of the U.S., in this case the U.S. people, that war is necessary and inevitable. For those of us who oppose the war drums of the latest imperialist adventures the ideological enemy is patriotism, nationalism, jingoism and racism. One purpose of intelligence agencies and the state in general in the lead up to a war is to lie to the domestic population, producing enough fear and hatred of the target country among the people that the frenzy of jingoism overwhelms reason. When the state and its intelligence agencies fulfill its purpose we on the left should not be surprised. Our duty is to educate people in the historical fact that this is always the way powerful states act in the lead up to the war. Powerful rulers lie and fix the facts in order to get the domestic population to tolerate what the rulers want.
Given this general historical viewpoint we should view the framing of the facts and the propaganda campaign as revealed in the Plame affair as politics as usual except for one fact that the affair highlights: A section of the U.S. ruling class and its elite bureaucrats in the intelligence agencies were not cooperating with the Bush regime, led by Chaney and Rove. I think that we can conclude from this that the Bush regime is a relatively narrow clique of the ruling class. One of the reason for the rampant irrationalism of its rhetoric is that a narrow regime has to constantly whip up the various groups of its base. Most of the rhetoric of the Bush regime and many of its actions, political appointments, etc. should be interpreted from the point of view of the narrowness of the Bush regime within the ruling class as a whole. The reason the exposure of Plame is significant, and the only reason it has become an "affair", is that with Plame the Bush regime proclaimed that it has contempt for a portion of the ruling elite that is important to imperial domination. As Nicholas Lemann put it in a recent New Yorker article:
[Tthe conservative foreign-policy position generated a vigorous subculture. Life inside it had many charms, one of which was the unassailability of the conservatives’ ideas .... Conservatives were smarter, bolder, more strategic-minded, and more historically aware than moderate Republicans, being less vitiated by the need to appease interest groups and by the grind of running bureaucracies. When the Central Intelligence Agency or the State Department ... was mentioned in conversation with a foreign-policy conservative, the reference would usually draw a derisive chuckle or a rolling of the eyes: those organizations had been captured by the appeasers, and could be counted on to respond insufficiently to threats.
TELLING SECRETS - How a leak became a scandal by NICHOLAS LEMANN The New Yorker Issue of 2005-11-07, Posted 2005-10-31
The ideological battle of the right wing neo-conservatives has always been aimed against the entrenched bureaucracies of "liberal" imperialism, which they look at as a brake on the expansion of U.S. state and corporate power. Thus, attacking people such as Joseph Wilson (a career State Department official) and his wife Valerie Plame, was simply attacking the representatives of the liberal foreign policy bureaucracy. Such attacks are just part of the game for the extreme reactionaries of the Bush Admnistration. And the fact that this is the way that they play the game, without regard for usual ruling class solidarity, is what separates them from the more 'conservative' elements of the U.S. ruling elite. But when powerful people undermine other powerful people an "affair" or a "scandal" will ensue. This is the simple lesson of the Watergate and the Iran-Contra scandals. (See FN 1)
But this does not mean that we who consider ourselves radicals and internationalists should simply parrot those who wish to drive "the affair" for their own interests. Scandals such as the Plame Affair are most useful if we can use them to expose the usual workings of the state and the ruling class. But they are also useful to expose the hypocrisy of the application of "the rule of law." Thus once again I come back to the beginning of this comment.
Let me make a thematic connection between the Valerie Plame Affair and the CIA archipelago of secret prisons. Let us be clear: The law that gave Special Counsel Patrick Fitzgerald a mandate to investigate the Valerie Plame Affair is an anti-democratic law meant to protect the national security state against exposures of its 'secret' atrocities. The law is known as Intelligence Identities Protection Act (IIPA) and it was passed in order to protect the criminals at the CIA from exposure. The secrecy of CIA operations is aimed at the domestic population. We are the ones who are not supposed to know the history of subversion of democratic movements of our government. The CIA is not simply an intelligence organization it is also an organization that bribes foreign officials, undermines foreign elections, overthrows foreign governments, fosters foreign secret security agencies and trains them in torture and death-squad operations - in short the CIA is an organization meant to inspire fear in foreign civilian peoples through the use of violence and propaganda. In short, by definition, the CIA is engaged in terrorism. Exposing the CIA, its operations and its operatives is a democratic duty that we must fight to make a 'right.' The Intelligence Identities Protection Act was passed in the early 1980s and was aimed at Philip Agee and the Covert Action Information Bulletin (CAIB). Agee made his own separate peace by defecting from the CIA to the multitude. He published CIA Diary: Inside the Company in 1975 and soon after teamed up to publish CAIB. In both his book and in CAIB he exposed CIA operations and operatives. It was Agee's and CAIB's civic activism in exposing CIA secrets that led to the passage of IIPA. The activities exposed by Agee were largely illegal activities which are condemned (with much usual nation-state hypocrisy) by international norms. Agee, no matter what his motivations, was a whistle blower and IIPA is an anti-Whistle Blower law that will be used mainly against the left. In the usual misapplication of the rule of law those who harm the ruling class will be prosecuted and those who benefit the ruling class will not be prosecuted under this law.
Which brings us back to the CIA run secret prisons.
If a CIA agent with a conscience knows where these prisons are located, if she knows the CIA operatives who run those prisons, if she knows the conditions of those prisons and the names of the people in the prisons, if she then reports on the activities of the CIA wardens and their hirelings who run these prisons, and if this person of conscience exposes all of the above, I would celebrate such a person. In my mind she should be considered a courageous fighter for democratic openness. The law that would put such a person in jail should be repealed. All secret security agencies should be exposed to the light of day.
This is not a mere hypothetical. Think of Dana Priest's article exposing the CIA secret prisons. She wrote it without naming names. But she must have sources somewhere in order to write the article in the first place and those sources must know names. The names of the people running those secret CIA prisons are engaging in crimes against humanity and the names of the CIA prison wardens and their accomplices should be exposed to democratic sunlight. Perhaps one reason that they are not so exposed is the threat of jail under Intelligence Identities Protection Act.
I am cynical enough to hope that despicable hypocrites, such as Carl Rove and Scooter Libby, will betray the norms of their class and expose covert agents, even if they do so only to further their very narrow political interests. In the end, if the Intelligence Identities Protection Act is consistently violated by those who rule this country, perhaps the act will become a dead letter. This is a mere modest proposal in favor of ruling class wolves eating their own puppies. In reality only an active and organized radical democratic left, which has its own organizations willing to expose the crimes and atrocities of the U.S. government and its secret agencies can put some content into the notion of the "rule of law" and someday make such notions of law into a flexible instrument of pragmatic democratic justice.
Jerry Monaco
New York City
2 November 2005
[FN 1] Note that this internecine war between ruling class elite sectors is partially represented by the battle inside the intelligence agencies. Thus Dana Priest reports
The secret detention system was conceived in the chaotic and anxious first months after the Sept. 11, 2001, attacks, when the working assumption was that a second strike was imminent.
Since then, the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. Mid-level and senior CIA officers began arguing two years ago that the system was unsustainable and diverted the agency from its unique espionage mission.
"We never sat down, as far as I know, and came up with a grand strategy," said one former senior intelligence officer who is familiar with the program but not the location of the prisons. "Everything was very reactive. That's how you get to a situation where you pick people up, send them into a netherworld and don't say, 'What are we going to do with them afterwards?' "
Put aside the official media-speak of these paragraphs and what you see is that the CIA has stepped outside its usual role and the "old hands" do not like it very much. In the good old days of the U.S. imperialism the CIA trained other people to do their dirty work. The vision of the Bush regime sees a more active role for the CIA in torture and oppression, mainly because as U.S. military might has increased, it has lost political control over many of its foreign clients and servants. I suppose that one of the results of he reorganization of the intelligence agencies is to bring them under direct political control by the Bush Regime.
PHOSITA is an intellectual property blawg or patent blog. PHOSITA was also a host of Blawg Review #34 where this post was mentioned.
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| » Legal-Regimes and Extralegal Violence: A search for patterns in 'real-existing' law: |
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Legal-Regimes and Extralegal Violence: A search for historical patterns in 'real-existing' law:
"In January 1899, a black laborer at the Land Pebble mine, dared argue with his foreman, who pulled out a pistol and shot the laborer dead. The foreman turned himself in to the Bartow sheriff. But the sheriff brushed the incident aside. Everyone knew what had happened, he said. The foreman should go back to work." Kevin Boyle, The Arc of Justice: A Saga of Race, Civil Rights and Murder in the Jazz Age, p.65.
Such incidents cannot be understood legally, or even from the point of view of common sense, with legal analysis as it stands today. The action of the foreman and sheriff are illegal of course, but then why, in that time and place were they accepted by all of the legal authorities? In any given society such 'extralegal actions' are not an anomaly, but simply the way any given society works. Written laws themselves often only set a framework for extralegal and non-legal actions. Practical questions must be asked. The question is not "What is 'legality'?" in these situations or "What is 'the rule of law'?" but, rather, "What is the legal regime in effect in this case, in this place, in this society?" Furthermore some concept of "extralegal violence", and how extralegal violence is contested and normalized, is necessary.
The above is an incident from Florida in the post-Reconstruction period. It took place in the phosphate mines. Working in the phosphate mines was brutal and dangerous. It consisted of breaking stones for twelve hours a day, seven days a week. Few whites would do the job so the mine owners hired young, single black men, though of course the foremen, managers and owners were white. The camps that developed around the phosphate mines were essentially company run towns, even though they were nominally under the jurisdiction of the County Sheriff, in this case the Sheriff of Bartow. The usual situation followed. Thus, even though prostitution was illegal, it was sanctioned around the camps by the owners of the mines who essentially sold franchises to the brothel owners. The prostitutes were black and the brothel owners white. It is only natural that these camps, and all such company towns would become laws unto themselves. Most analyses of law do not take into account this kind of legal regime. The question is what kind of law is operating in this situation? Why is it here? How did it develop? What were its institutions, etc.?
The sheriff's and the deputies in Bartow "tolerated" and sanctioned this situation and the white elite benefited from it. But the actual operation of such legal regimes is rarely studied as part of real legal systems. Of course, periodically things in the camps would get out of hand and then the Sheriff would go in with newly deputised town's people and settle the trouble with direct collective violence. This collective violence whether it was a 'lynching' or an 'anti-saloon' or anti-gambling raid, was always justified as a maintenance of order. Of course there were and are similar situations through-out history and through-out the world today. And neither is this only a story about race-relations in the United States....
It is also not always a story about good and evil. This is because often legal-regimes are contested. Various kinds of revolutionary situations have existed - in Athens, Republican Rome, during the English Revolution, the American Revolution, the French Revolution - that have established legal regimes that look very similar on the surface to the direct collective extralegal violence that one might have seen in Bartow. Some of these legal regimes may be 'justified' if not quite 'just.' Or to put it more starkly, the collective 'extralegal violence' of the abolitionist raider who frees a group of slaves, must not be put on the same moral level as the collective extralegal violence that keeps the ex-slaves in de facto bondage. Moral judgements should be made separately from the description of the patterns I am considering. The 'is/ought' division should be kept firmly in mind along with the aims of the agents and the purpose of the institutions.
For instance, in mid-Republican Rome, the Plebs seceded from the city and elected two tribunes. T. J. Cornell describes the resulting situation
"The tribunes authority was based on what the Romans called a lex sacrata. This was a collective resolution reinforced by a solemn oath. Having elected their tribunes, the plebeians swore to obey them and to defend them to the death; anyone who should harm them became sacer, a term for which the English word 'accursed' is an inadequate translation. The formula sacer esto ('let him be accursed') was pronounced on persons who by their actions harmed the gods. Such a person became forfeit to the god in question, and on death was surrendered into his power; anyone who killed the offender was therefore carrying out a sacred duty, and did so without incurring any penalty or blood-guilt. In this way the tribunes of the plebs became 'sacrosanct' (i.e. inviolable.)" (T.J Cornell The Beginnings of Rome, 259).
***
"The lex sacrata gave the plebeian tribunes extensive powers which derived ultimately from their inviolability. They were able to enforce their will by coercion (coercito). They could impose fines, imprisonment, or even the death penalty, against anyone who challenged their authority or who made a physical or verbal assault on their persons. Because of the sacrosanctity the tribunes were able to protect individual plebeians from ill treatment by the rich and powerful, and from the arbitrary punishment of the magistrates, by giving the 'assistance' (auxiium). At first this was an extra-legal procedure in which the tribune intervened personally, and rescued plebeians by [260] threatening opponents with the dire consequences of the lex sacrata if they should try to use force against him. In other words it was a form of organized self-help by the plebs, who backed their actions by lynch-law disguised as divine justice." (T.J Cornell The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (C. 1000-264 BC) , 259-60).
There are many interesting things that can be said about this passage. For instance, it is an exact illustration of the Sartrean fused-group and how it is united through both an oath and violence. It is also a particularly peculiar illustration (strangely enough) of the establishment of the rule of law through establishing an exception to sovereign power. What the plebs created was a kind of dual-power or counter-sovereignty. An unstable situation in the long run. At these points (when and where the plebs were willing to fight for their legal regime) the legal regime was a matter of a power struggle. What the patricians offered in return was 'the rule of law.' They offered a codified written law and it was given to them. To some extent this split the plebs along class lines. But, still, the plebs kept to their counter-sovereignty until it was integrated into the the legal regime as a whole, eventually becoming a much contested institution in the Roman constitution.
My point here in regard to the division between description and prescription, (i.e. "ought" cannot necessarily be derived from "is") is that personally I would support the self-help (lynch mob) of the plebs in their assertion of their right to self-determination contra the patricians in Republican Rome, but would not support the lynch-mob (self-help) of the nightriders in the period of Reconstruction in their assertion of their white supremacy (self-determination) contra the Union army of occupation and African- Americans, even if parallel patterns are at work. My analytical point is that we should not shrink from noticing the historical parallels, even if they go against our political (ideological) grain.
So my question is, in the above situations and hundreds of more (some of which are documented in this weblog), how do we think of the law? No matter what the stated law is, we must also study the 'real-existing' law that people live day-to-day: How are punishment and rewards allocated? By whom are they allocated? Who is allowed to speak, when and where and who will listen? Where is violence the norm and accepted though technically illegally? And where is it not even seen as technically illegal violence? This law is quite different from the law that is studied in law schools. In fact in law schools we are mostly taught to believe that this law simply does not exist. It is a law of which we dare not speak in a law school classroom. The belief in the non-existence of real, everyday, legal regimes - the law as people experience the law, the law as it is organized in all kinds of institutions (only a few of which are explicitly 'legal institutions') -, the willful ignorance of this law is deeply ideological. Unfortunately, to see this law clearly puts a lawyer in a state of cognitive dissonance with the codified norms of the lawyer's professional code of ethics. I maintain that this result is one of the doctrinal functions of professional codes and must be analyzed as part of the ideology of 'professionalism.'
My basic project has always been to take a page from Llewellyn's book and show that the law is not simply what is written but it is what 'these people do'. But we must expand the notion of 'these people' beyond judges and lawyers and include the cop on the beat and the corporate manager and the foremen and quasi-sovereign institutions in their social 'spaces'. It was this thought that was the beginning of my notion of looking into the patterns of extralegal violence, legal violence, and violence that is not even considered violence within the rule of law. (For instance the deadly conditions in the mines, which were supposedly a matter of contract between mine worker and mine owner.)
So to repeat, in every instance when I am studying an actual dispute or case or 'norm' or law, I would ask: What is the 'legal regime' in this situation? What if the rule of law states one thing about the legality of an action, but in each and every case the legal regime leads to actions that are exceptions to the 'rule of law'? How and why do extralegal actions integrated into a given society's legal institutions?
These considerations, along with the patterns of exception to the rule of law, the institutions of quasi-sovereignty, the construction of dominant ideology, and how these are all integrated into the rule of a dominant class or competing classes is only the beginning of any historical analysis of law and society. Each society must be studied in context. There are no skeleton keys to unlock every door. Yet, I maintain there are general legal and historical patterns from classical Athens, through ancient Rome, following down to the emergence of the nation-state and modern business institutions.
I also believe that most historians and legal commentators have only glimpsed these patterns, mainly because they don't look at human society from the point of view of a methodological naturalism and also because nobody but the "dilettantish" generalist (Lewis Mumford [see The Myth of the Machine a book that greatly influenced me too many years ago], William McNeil, Charles Tilley, or even the regrettable, Jared Diamond, or the even more excitingly regrettable E. O. Wilson) is willing to look at the grand scale of human society,and look at it as just another interesting formation, a kind of natural phenomena with its own patterns. Either I am crazy or I have a lot of work to do that I will probably never finish.
These are only the beginnings of my thoughts that have led to my reflections on legal and social institutions.
Perhaps the notions of 'legal regime' and 'extralegal actions' will be useful to you. I think they fit with what you are doing.
Jerry Monaco
22 September 2005
New York City
Related post: Theses on the Concept of "extra-legal violence" with references to the "Rule of Law" and the idea of the "legal regime"
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Sep. 22nd, 2005 @ 07:32 pm
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| » Theses on the Concept of "extra-legal violence" |
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Theses on the Concept of "extra-legal violence" with references to the "Rule of Law" and the idea of the "legal regime":
The concept of extra legal violence is to some extent a misnomer but it is still very useful.
In the first place we have to make a distinction between tolerated, and in some cases encouraged, extra-legal violence, extra-legal violence that is contested by or not tolerated by some sectors of the elite, and extra-legal violence that is contested or supported by other sectors of the culture or by the multitude. We must also designate a kind of violence that is neither legal nor illegal, what I will call non-legal violence. Then we must designate a kind of violence that is illegal. Only by studying each historical and cultural context of a particular legal system, and by studying what legal institutions do and don't do, what the rule of law covers and doesn't cover can we decide how extra-legal violence is interpreted within a society. I call this historical and cultural context of a legal system a "legal regime." (Two examples: Any study of race relations in the United States and especially the 'culture of terror' against African Americans - lynching, assassination, individual killings of black workers, etc. - will show that extra-legal violence was a part of the United States legal regime. Any study of the system of the pater-familias in the time of the Roman Republic would provide a similar example.
It is the institution of the law that establishes the concept of what we designate extra-legal, non-legal, and of course illegal. When a legal regime is established and legal institutions develop, at the same time there is an establishment of violence that is legally sanctioned, extra-legal violence that is tolerated, and non-legal violence that is not even recognized as a violation of humans (or nature). In a society where legal institutions exist these recognitions and non-recognitions of violence are made a part of the structures of the institutions, themselves.
Many human societies have established legal regimes but do not have formal legal institutions or at least very few. In such societies there is a sense that most violence is extra-legal and is only justified or not justified after the fact if the particular act of violence becomes contentious in that society. These societies simply do not have a concept of the 'rule of law.' Through out the whole of human history most societies had no established legal regimes at all, only customs, informal rules, and customary ways of making decisions. In such societies the very concept of "legal," "illegal", "extra-legal" are simply anachronistic. It is an artifact of the legal-mind that they we apply legal notions to the whole of society as if this such an application were only natural. Such notions as law, the rule of law, and legal institutions are only applicable to societies that have developed organized state institutions and up until very recently most human societies did not have such institutions. Only relatively recently in the history of the human species have such institutions come into existence. Legal institutions must be looked at with this general background in mind. Up until 5,000 years ago a study of the human species could have been made without once mentioning the notion of law and absolutely nothing would have been lost from such a study. Even as recently as 2,000 years ago what we call law has only been applied to a small portion of the human species. All of this is relevant historical background when studying how the "rule of law" establishes a tolerance of extra-legal and non-legal violence.
In any society where a legal regime exists, and legal institutions are established, and there is a notion of what we now call the "rule of law", these institutions and notions also create tolerated and/or encouraged acts of extra-legal and non-legal violence that are an essential part of the legal regime and social enforcement of rules and customs. To some extent the relation between extra-legal violence, non-legal violence and notions of legality are not even recognized, and yet they are often essential to the social order. It is to the extent that the relation between these notions go unrecognized in any legal regime, it is to that extent, that the notion of legality reveals its ideological bounds.
I intend to show that extra-legal violence and non-legal violence can be mapped from society to society and legal regime to legal regime. I also intend to show that these maps of legal regimes have a certain congruity, from each to each, and more - that they are to a great extent historically homologous. This is only a first step to a larger project. Extra-legal violence is to some extent relatively easy to define because we know 'violence' when we see it (unless you only read Derrida or Agamben and Benjamine's Critique of Violence). What is harder to define is violation and human exploitation in general. The larger project is to show how legality, extra-legality, and non-legality can be mapped in the relation to what is recognized as human exploitation and what is not, what is allowable coercion and what is not allowable coercion.
Jerry Monaco
New York
Wednesday, August 24, 2005
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Aug. 24th, 2005 @ 07:36 pm
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| » Scalia, Monotheism, and Constitutional Interpretation |
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Justice Antonin Scalia, Monotheism, and Constitutional Interpretation: Invented Traditions, the Constituencies of the Supreme Court, and Legitimation: Annals of the Republic of Hypocrisy
Professor Jack M. Balkin at his weblog analyzes Justice Scalia's dissent in McCreary County v. ACLU, one of the Ten Commandment cases. Balkin puts it clearly.
In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam.
I have not had the time to read the latest Supreme Court opinions thoroughly, but I would like to make a few comments about Scalia, and by side-light Justice O'Connor.
Scalia in dissent is often worth reading. This is because he gives away the game of the politics of Supreme Court decisions. Sometimes he does this intentionally by analyzing the political basis behind the majority opinions he is criticizing, but often he does so unintentionally by showing that his particular version of the theory of Constitutional originalism is a highly political program for reversing the New Deal and the Warren Court.
I have many examples of the first way in which Scalia analyzes the politics of the court - Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), Romer v. Evans, 517 U.S. 620 (1996) - but the most obvious is LAWRENCE V. TEXAS. A single quote will do, but all interested readers can easily find the opinions on-line.
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home.LAWRENCE V. TEXAS, Scalia in dissent.
Scalia's emphasis on what he aptly calls the 'law-profession culture,' is at the same time, accurate and misleading. It is of course a culture he believes doesn't include him. But he is both a product of and a prime example of the 'law-profession culture' - the institutional nexus of Law Schools, administrative agencies, corporate law offices, ( Continue Reading )
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Jun. 28th, 2005 @ 09:33 pm
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| » American "Legal Formalism" and Elite Standardization of the Law |
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Clay Conrad at jurygeek has an interesting post entitled "Did Legal Formalism Mortally Wound the Independent Jury?."
I will quote the first paragraph:
Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.
The link Mr. Conrad provides to legal formalism is to a good article by Duncan Kennedy in the "Encyclopedia of the Social and Behavioral Sciences".
Once while browsing the library I picked up Mr. Conrad's book Jury Nullification: The Evolution of a Doctrine and I liked what I read. I am sure that my political world view does not match Mr. Conrad's but I found his book well written and thoughtful. I recommend it along with We, the Jury: The Jury System and the Ideal of Democracy by Jeffrey Abramson. My particular point of view on the jury system is that it is a core and elemental component of democracy and that any restriction on the jury is, in fact, an attack upon an important democratic form.
I have not read Mr. Conrad's book in full but only about 70 pages while avoiding work in the library, so I do not have the book in front of me and I don't remember if any of my ideas were actually lifted from Mr. Conrad. I am in the strange position of defending Mr. Conrad. I am sure he does not need my defense by I do hope that he appreciates it.
Professor Barnett may be correct in his suggestion that doctrines of 'legal formalism' contributed to the decline of jury independence and may have helped to create the modern notion of the law/fact dichotomy. As every first year student knows decisions on the 'law' are no longer the domain of jury deliberation. The jury's jurisdiction is just the facts. I think the thesis can be maintained that the legal and social complex of forces behind attacks on jury independence were the same that led to the rise of legal formalism. In fact legal formalism was mainly an attack on the independence of judges, especially small town judges. If this is true then Conrad's emphasis on the need for control by elites also applies to the rise of 'legal formalism.' Elite control of the legal system is probably the strongest spine of the story that led to attacks on jury nullification, but also contributed to a suite of other changes in the legal system.
I can not provide all of the historical evidence here and now but let me state that independent, erratic, and quirky judges, and quirky local legal systems were as much of a "problem" in the period after the civil war as independent juries. Further, I would like to point out that bringing the 'rule of law' to the Western Territories, and campaigns against what was sometimes called 'local justice,' and at other times called lynch law were part of the propaganda campaign that was behind the movement to bring some kind of standardization to the national legal system. Formalistic notions of applications of the rule of law were part of this campaign. The part of the story that we call the rise of 'legal formalism' was mainly an attempt to impose standards on a diverse national legal system that was varied to the point the of nonsense. But for who was the lack of standardization a problem? For the newly emerging national elite of lawyers and for the people that they served in the new national market. The need to assert some control over a diverse legal system was a daily problem for the corporate lawyer who wished to provide adequate representation to his client. I derive some of these points from Grant Gilmore's lectures collected in "The Ages of American Law" and also from my own studies on the rise of corporate law. The diversity (if not chaos) of late 19th century law from jurisdiction to jurisdiction, the unpredictable quality of judicial decisions, and the tendency of juries to rely on local customs, looked like 'insanity on the march' to many of the legal scholars, commentators, and elite lawyers. Legal formalism was just one of many tools to tame this diversity. The list of woes was as follows: We were a collection of jurisdictions that was supposed to be 'one nation', yet did not have 'one' law. The rank-and-file lawyers and judges were not legally trained. They did not interpret 'rules', but derived their own standards of right and wrong loosely based on the law. A solution it was thought was was to introduce definite constraints on the practice and interpretation of the law. If some formalism was introduced into the process then perhaps the educated elite could teach the small town judge and lawyer how to apply the rule of law. This would also allow for the professionalization of law and would tame some aspects of small town hucksterism. Or at least so the new national legal elite believed.
There was some truth in what they thought, but I believe the drive to bring standardization to the law in the various States was necessitated by the needs of business and the lawyers that represented them. In other words the same forces that were behind the post-civil war drive against jury nullification were the forces that were behind a suite of changes in the legal system that occurred in the same period - the rise of corporate law, the birth of the modern law-firm, the drive for standardization of judges and lawyers, the rise of the law school as a feeder system to government and law practice, etc, the "new" business oriented interpretations of the Fourteenth Amendment, the introduction of professional codes of ethics, and especially the rise of national business firms and a national labor market.
Of course I am simplifying, to the point of being instrumental. There were other historical tendencies at work in the decline of 'natural law' theories and the rise of 'legal formalism'. Robert Cover, for example, pointed out that the reaction of anti-slavery judges to having to enforce the fugitive slave law was a retreat into formalistic interpretations of the letter of the law. On the other side legal formalism in the post-Civil War era was itself opposed by some of the most determined advocates of 'corporatism' and national standardization, i.e. by legal theorists and their lawyer-students who had a Hegelian notion of what the law should become. There are many ironies in this history and the portion of it that leads to the crucial nexus between law firms, law schools and the administrative state has yet to be told. But just one example is the fate of the legal realism movement. I think it was Duncan Kennedy who pointed out in his A Critique of Adjudication that almost no one has ever admitted to subscribing to 'legal formalism'. In fact, legal formalism as a doctrine may have been invented by its enemies, the legal realists. Yet 'legal realism' with its later alliance with the New Deal and its participation in the codification of model codes became inextricably allied with the Administrative State. Perhaps in this way they thought they could tame the legal domination of the Corporate Lawyers from the previous generation. But ironically it was probably the administrative state that has done more than anything else to take the law out of the hand of juries and moved rules and customs further away from democratic deliberation. As far as I know the legal realists, these classic anti-formalists, never much thought about jury nullification except to oppose it as an invitation to irrational prejudice. Their major legal work in the restatements, court rules, the UCC, etc. were brilliantly flexible rationalizations, but were also steps toward the same national standardization that was one of the motivating forces behind formalism.
Jerry Monaco
New York City
23 June 2005
This post is included in Blawg Review #36 @ AutoMuse.
Shandean Postscripts to Politics, Philosophy & Culture
Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco
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Jun. 23rd, 2005 @ 09:46 pm
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| » The Policy of Torture: What is New About the U.S. Policy of Torture? |
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The Policy of Torture: The Amnesty International Flak and What is New In the U.S. Policy of Torture: Annals of The Republic of Hypocrisy:
The Secretary General of Amnesty International, Irene Kahn, condemned torture as practiced by the United States.
The whole of the Bush administration and much of the media was extremely upset at the arrogance of A.I. Amnesty International has no place investigating torture committed or condoned by the U.S. government. By doctrinal definition the U.S. neither commits nor condones torture and any organization that says that it does is also by definition anti-American. There is a quite simple logic here that is very easy to understand by anyone who is willing to apply standards of moral judgement.
Susan Sontag wrote in the New York Times not long after after the Abu Ghraib prison scandal broke,
The administration's initial response was to say that the president was shocked and disgusted by the photographs -- as if the fault or horror lay in the images, not in what they depict. There was also the avoidance of the word ''torture.'' The prisoners had possibly been the objects of ''abuse,'' eventually of ''humiliation'' -- that was the most to be admitted. ''My impression is that what has been charged thus far is abuse, which I believe technically is different from torture,'' Secretary of Defense Donald Rumsfeld said at a press conference. ''And therefore I'm not going to address the 'torture' word.' '....
Whatever actions this administration undertakes to limit the damage of the widening revelations of the torture of prisoners in Abu Ghraib and elsewhere -- trials, courts-martial, dishonorable discharges, resignation of senior military figures and responsible administration officials and substantial compensation to the victims -- it is probable that the ''torture'' word will continue to be banned. To acknowledge that Americans torture their prisoners would contradict everything this administration has invited the public to believe about the virtue of American intentions and America's right, flowing from that virtue, to undertake unilateral action on the world stage.
Susan Sontag, Regarding the Torture of Others
If an official enemy of the United States commits torture by making a person stand naked in a prison cell for 48 hours with water up to his or her knees, then very little proof is needed to condemn that enemy. Anyone who testifies that this enemy of the U.S. has tortured a person in this way will be perforce believed. If a friend of the U.S. commits the same act of torture then there are several strategies that will be employed to dismiss the torture. The people who testify to the torture will be dismissed as liars. If this does not work the people who committed the torture will be disassociated from the government that is friendly to the United States and called 'rogue elements.' The United States Government which has in the past trained torturers in 'interrogation methods,' will claim that the torturers they trained were being trained in order to educate them in humane methods of interrogation and that any torture that took place afterward was caused by over zealousness. Finally, there is always plausible deniability. Since World War II the U.S. has trained the political police of oppressive states around the world in techniques of torture - the Central Intelligence Agency created torture gulag the Savak in Iran, the Argentine and Brazilian military government, the Death Squads of Central America, the DINA in Chile, (see, excerpts from the CIA handbook, (here, here, & here) used to train Latin American security forces) the Apartheid government in South Africa, the Indonesian state and many, many more. The connection between the U.S. Government and training for torture of the secret police of friendly states is so well known and so well documented that I would hope that I would not have to go over all the evidence every time I speak to a U.S. citizen about this history. But unfortunately U.S. citizens know less about the history of the way their country acts in other places in the world than most people around the world. Which brings me to the final and most effective strategy used to dismiss torture by those associated with the U.S. government - most likely the torture will not be reported upon in the United States and thus there will be no need of dismissal at all.
But this was way back when the U.S. was worried about its reputation abroad. Now the U.S. only has to provide plausible reasons for the U.S. population to think well about itself and its government. For the most part U.S. facilitation and practice of torture is looked upon as a public relations problem, no more. For the most part the current U.S. regime doesn't even try to hide that it commits torture, has a policy of torture, and cooperates with torture states. This is because it is the official policy of the U.S. to practice torture, proclaim that it is practicing torture, and merely cover it up by claiming that the torture it is openly practicing is not torture at all. That is what is new in U.S. policy. That is what I propose to investigate in the series of comments on this weblog. It is the new policy of torture, the reasons behind that policy, and the legal ideology behind its justification, which has not been commented upon even by those of us who are shocked by the actual practice of torture. That is what has been missed by all of those who have commented on the Amnesty International report, and to a certain extent by Amnesty International itself. The U.S. has proclaimed a policy of torture and has simply said that what ever the U.S. does is by definition not illegal and thus not really 'torture.' Thus when Bush, Rumsfeld and company say that the Amnesty International reports are not true, they simply mean that the U.S. government is incapable of committing torture and anyone who says that it does is an enemy of all Americans. Thus when the U.S. does not commit torture by simple Orwellian logic it is not torture.
The relevant passage in the Secretary General Irene Kahn's statement that so offended the Bush Administration is the following:
the US government has gone to great lengths to restrict the application of the Geneva Conventions and to “re-define” torture. It has sought to justify the use of coercive interrogation techniques, the practice of holding “ghost detainees” (people in unacknowledged incommunicado detention) and the "rendering" or handing over of prisoners to third countries known to practise torture. The detention facility at Guantánamo Bay has become the gulag of our times, entrenching the practice of arbitrary and indefinite detention in violation of international law. Trials by military commissions have made a mockery of justice and due process.
The USA, as the unrivalled political, military and economic hyper-power, sets the tone for governmental behaviour worldwide. When the most powerful country in the world thumbs its nose at the rule of law and human rights, it grants a licence to others to commit abuse with impunity and audacity. From Israel to Uzbekistan, Egypt to Nepal, governments have openly defied human rights and international humanitarian law in the name of national security and “counter-terrorism”.
Without explanation the offending phrase 'gulag of our times' sticks out and shocks people. Why would a U.S. concentration camp be compared to the Soviet system of concentration camps? First of all there are many differences and perhaps the differences point to Secretary Khan's hyperbolic phrasing. For instance the Soviet camps were for the most part work camps and were developed to contain internal enemies. The archipelago of U.S. camps in Guantánamo, Afghanistan, Iraq, and a number of other third countries, is not meant to contain internal opposition to the U.S. regime but is meant to contain essentially kidnapped foreign nationals. Also, the numbers of people in these extralegal U.S. prisons are nowhere as great as those that were contained in Soviet political prisons. (Though, I would like to point out that since the passing of the South African apartheid regime and the old Soviet Union my country now proudly ranks number one in imprisoning its own population. This says something very important about a certain kind of oppressiveness in our national 'legal culture.')
But these differences between the Soviet prison system and the U.S. archipelago of extralegal prisons should not blind us to the point Secretary Kahn is making in her introduction to the A.I. report. The U.S.G. has established a system of prisons in third countries which U.S. leaders claim are outside of all known laws and conventions. In this system of prisons U.S. law does not apply and neither, so U.S. leaders say, does international law. Worldwide state after state has proclaimed, when questioned about their own human rights practices, that if the U.S. can violate human rights and due process openly then other countries can do so under the cover of law and fog.
This is the effect of the significant change in the U.S.G.'s policy toward torture. The U.S.G. has always "outsourced torture" (The title of a recent article in The New Yorker OUTSOURCING TORTURE by JANE MAYER, The secret history of America’s “extraordinary rendition” program. Issue of 2005-02-14. The U.S.G. has done so through client regimes that we have supported, and sometimes 'established', in order to maintain control of local populations and retain control of important local resources for U.S. corporations. We train the torturers and support the regime. But we did so covertly and not as the proclaimed aim of our policy.
I will quote from Jane Mayer's article:
The most common destinations for rendered suspects are Egypt, Morocco, Syria, and Jordan, all of which have been cited for human-rights violations by the State Department, and are known to torture suspects. To justify sending detainees to these countries, the Administration appears to be relying on a very fine reading of an imprecise clause in the United Nations Convention Against Torture (which the U.S. ratified in 1994), requiring “substantial grounds for believing” that a detainee will be tortured abroad. Martin Lederman, a lawyer who left the Justice Department’s Office of Legal Counsel in 2002, after eight years, says, “The Convention only applies when you know a suspect is more likely than not to be tortured, but what if you kind of know? That’s not enough. So there are ways to get around it.”
***
The Bush Administration’s departure from international norms has been justified in intellectual terms by élite lawyers like Gonzales, who is a graduate of Harvard Law School. Gonzales, the new Attorney General, argued during his confirmation proceedings that the U.N. Convention Against Torture’s ban on “cruel, inhuman, and degrading treatment” of terrorist suspects does not apply to American interrogations of foreigners overseas.
***
The Bush Administration’s redefinition of the standards of interrogation took place almost entirely out of public view. One of the first officials to offer hints of the shift in approach was Cofer Black, who was then in charge of counter-terrorism at the C.I.A. On September 26, 2002, he addressed the House and Senate Intelligence Committees, and stated that the arrest and detention of terrorists was “a very highly classified area.” He added, “All you need to know is that there was a ‘before 9/11’ and there was an ‘after 9/11.’ After 9/11, the gloves came off.”
Laying the foundation for this shift was a now famous set of internal legal memos—some were leaked, others were made public by groups such as the N.Y.U. Center for Law and National Security. Most of these documents were generated by a small, hawkish group of politically appointed lawyers in the Justice Department’s Office of Legal Counsel and in the office of Alberto Gonzales, the White House counsel. Chief among the authors was John C. Yoo, the deputy assistant attorney general at the time. (A Yale Law School graduate and a former clerk to Justice Clarence Thomas, Yoo now teaches law at Berkeley.)
***
Soon after September 11th, Yoo and other Administration lawyers began advising President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the war on terror. The lawyers classified these detainees not as civilians or prisoners of war—two categories of individuals protected by the Conventions—but as “illegal enemy combatants.” The rubric included not only Al Qaeda members and supporters but the entire Taliban, because, Yoo and other lawyers argued, the country was a “failed state.” Eric Lewis, an expert in international law who represents several Guantánamo detainees, said, “The Administration’s lawyers created a third category and cast them outside the law.”
***
The legal pronouncements from Washington about the status of detainees were painstakingly constructed to include numerous loopholes. For example, in February, 2002, President Bush issued a written directive stating that, even though he had determined that the Geneva Conventions did not apply to the war on terror, all detainees should be treated “humanely.” A close reading of the directive, however, revealed that it referred only to military interrogators—not to C.I.A. officials. This exemption allowed the C.I.A. to continue using interrogation methods, including rendition, that stopped just short of torture. Further, an August, 2002, memo written largely by Yoo but signed by Assistant Attorney General Jay S. Bybee argued that torture required the intent to inflict suffering “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” According to the Times, a secret memo issued by Administration lawyers authorized the C.I.A. to use novel interrogation methods—including “water-boarding,” in which a suspect is bound and immersed in water until he nearly drowns.
Notice here what we are dealing with. The people in the administration want to find a way to do something 'different.' If they want to do it then it automatically must be 'good.' Right and wrong does not come in here and morality and legality is always after the fact when someone is trying to figure out a way to do something violent or repulsive that happens to be in their own self-interest.
So now we get to the lawyers. (In a future post I hope to deal with some of the ethical and philosophical issues of this as relates to lawyers and 'exceptions' to the law) They are seemingly doing what lawyers always do, reifying and twisting legal definitions in order to find an interpretation of the law for the client to do what the client wants to do anyway. The term of art for this 'praxis' (fn.1) ( Read more... ) is called 'legal reasoning.' One may object that the kind of reasoning used to interpret a standard such as 'substantial belief' or 'more likely than not' in contract law should not be applied to denying a person all due process so he can be sent to a country where he will be tortured but if necessary to defend a client a lawyer will argue anything. The problem here is that this was advice given by lawyers interpreting, I would say twisting, the law before the fact. In when what lawyer is providing legal fog for the leaders of the most powerful nation on earth, who as long as there is no internal opposition to what those leaders want to do can turn any interpretation into fact and torture and bomb the world if they so choose, then it can be seen that interpretation of the law merges with justification for torture. If we say that dunking a person underwater until they almost drown is not torture then as far as U.S. law is concerned it is not and there is no one in the world that will hold the U.S. responsible.
But of course the people being tortured have to be the right kind of person. That kind of person is a person we define as not having any rights that the U.S. government is bound to recognize. My phrasing deliberately paraphrases the famous Dred Scott decision. A slave is a person who has suffered civil death and so is a person who is declared an "illegal enemy combatant."
If one actually read what Secretary General Irene Kahn has said, instead of condemning A.I. for being anti-American, then one can see that her point about U.S. torture is not that it is something that is hiddent and need to discover - no she is talking about the torture that we all know about, the torture that is proclaimed as part of our official policy, the torture that the Bush administration has proclaimed not to be torture simply because the U.S. is doing it in the open. What needs to be condemned, what we citizens of the world and especially citizens of the U.S. must oppost are rather the policies of torture, and the policies that allow for torture to be legally ignored, the policies that are openly proclaimed by the U.S, and the policies that most educated United Statesians ignore to their detriment. What we must see, is not only the people who are sufferering now under regimes of torture, but all of those who will be tortured in the future by our open march back to the dark ages of proclaiming torture a good, of redefining torture as just another technique of human control.
Jerry Monaco
New York City
06 June 2005
Shandean Postscripts to Politics, Philosophy & Culture
Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco
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Jun. 6th, 2005 @ 07:28 pm
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| » The Public Matter of Song v. The Republic of Hypocisy: The Basement Tapes & Greil Marcus #1 |
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The Public Matter of Song v. The Republic of Hypocrisy: A Reflection on Invisible Republic: Bob Dylan's Basement Tapes by Greil Marcus: Part One: Robin Hood
To live outside the law you must be honest. - Bob Dylan
A couple of years ago Melvyn Bragg in his BBC-4 Radio show In Our Time presented a show on the folk tale of Robin Hood. ( The show can be listened to here. I highly recommend many of the shows in this series.) It turns out that Robin Hood as a character goes back to at least the twelfth century. The primary evidence are a number of ballads and songs that were sung in pubs and also county fairs that were held during the Whitsun Ale in rural areas of England. During many Whitsun festivals - usually held in late may on the seventh Sunday after Easter - there were often competitions - wrestling matches, archery contests, etc. - which were presided over by a Robin Hood.
We don't have direct evidence of the earliest Robin Hood, who must have only existed in folk legends and ballads. The first mention of him in manuscript was in William Langland's Piers Plowman (1377). In this section of Piers Plowman Sloth, while sitting in a tavern tells his listeners that he knows the ballads of Robin Hood quite well. A fair conclusion is that if a lazy and probably illiterate drunkard such as Sloth can sing the Robin Hood ballads they must have been pretty well spread among the multitude. Robin Hood at this time was not a gentleman, was not an outlawed knight. By time the ballads of Robin Hood and the Whitsun Robin Hood competitions are noticed by the ruling classes Robin Hood is a simple yeoman. What he was before this time we may never know. What is for sure is that the ruling classes did not like what the legend represented. Often the Robin Hood competitions during Whitsun Ale were banned. There was something threatening to local authorities in this figure.
There are many contemporary analogies to the kind of figure Robin Hood represented to the authorities. We need only think of the overblown reaction our current guardians of public authority have had to rap music and especially to 'gangsta rap' to understand why Robin Hood was hated. In the first place it is necessary to understand what an outlaw was, in the sense that it was used at the time. The concept of the outlaw was a legal term of art. We do not have a similar term in our legal system though the administration of Bush the Younger has been trying to reintroduce it by creation territorial and formal exceptions to the law in the archipelago of prison camps from Guantanamo to Afghanistan and in the use of such concepts as 'extraordinary rendition' and 'illegal enemy combatant'. An outlaw was literally a person who was declared to be outside of the legal system. This was a form of civil death and a person who met an outlaw was allowed to kill him. In fact there were absolutely no protections of law that an outlaw could claim. The fact that a character such as Robin Hood, a person who was celebrated for being outside the law, a person who could only survive by befriending people who were also somehow outside of the protection of authority, a person who lived by violence directed against local authority, a trickster character (like many of the tricksters in Native American and African-American culture), the fact that such a person could be celebrated at festivals and in songs and stories was often frightening to the local powers.
Robin Hood and outlawry may seem an odd place to begin my reflections on Bob Dylan's basement tapes and Greil Marcus' Invisible Republic. It is not and I believe that Marcus, if he is acquainted with the historical transformation of consciousness that the Robin Hood legend represents, would recognize the similarities between the development of Dylan's basement tapes, their origins in The Anthology of American Folk Music and further back, the appropriation of these violent and strange and uncanny songs by popular culture and commodity culture, and their reappropriation into an underground of American democracy by Bob Dylan and his collaborators, that was unabashedly a part of pop culture, and the similar history of the Robin Hood legend. Thus the invisible history of the Robin Hood legend and the reinvention of the songs from Anthology of American Folk Music by Bob Dylan and Dylan's own primitive-modernist turn on the outlaw character are similar in form.
As Marcus well knows there is a secret history of every multitude that desires not to be a 'folk', not to be simple objects of a given 'citizenship', but desires to participatory members in their own imagined world. That imagined world is not always pretty and aspects of it are not necessarily to the liking of those of us who believe in the old liberal spirit of the enlightenment. Some of it can find expression in the darkside of humanity. I will not ignore the fact that the darkness and light of the Republic of Song that can be found in these United States can also lead when expressed politically to paranoia and religious obscurantism. But I congratulate Marcus for revealing the Invisible Republic of Song and its great expression in the Basement Tapes.
Robin Hood, who was a frightening specter, to the local ruling classes in England from the fourteenth to the sixteenth centuries, I always in opposition to those who would appropriate the commons or turn the yeoman farmer off their farms, was himself appropriated by the emerging national ruling classes and turned into a gentleman by the Elizabethan stage. There is something in this of how Hollywood would appropriate folk legends that surrounded Pretty Boy Floyd, Bonnie and Clyde, and Butch Cassidy and the Sundance Kid. Yet there remained something irrepressible about the legend. One proof of this is the 1950's television series The Adventures of Robin Hood, which was made in England but imported into the United States becoming a great hit. The series was written by outlaws of Hollywood McCarthyism, blacklisted writers, among them Ring Lardner, Jr., who fled red scare and wound up in England writing a show about an outlaw who fought injustice and prejudice. When I was eleven I watched this show in repeats and I must say that I took the political message to heart.
The moral that we should derive from this is that we should not hope for 'purity' when we look for the invisible republic. Something of the old, weird trickster, and anti-authoritarian subversive that could be found in the Robin Hood Ballads of the 15th century could survive as a meme into the commodity culture of Hollywood, from Douglas Fairbanks to Errol Flynn, and be put to ready use by Ring Lardner, Jr. When I first heard Woody Guthrie's song "Pretty Boy Floyd" I immediately recognized it as a rewriting of Robin Hood, not because I knew the old ballads but because I had seen the 1950's television series.
And by this roundabout way we come back to Bob Dylan circa 1965-66 and Greil Marcus' interpretation of the Basement Tapes. (To be Continued.)
Jerry Monaco
New York City
04 June 2005
Shandean Postscripts to Politics, Philosophy & Culture
Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco
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Jun. 4th, 2005 @ 06:19 pm
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