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The Nature of Athenian Democracy: An Answer to a Reader's Question A reader asks in a comment on my post The Character of Socrates and His Bad Arguments: The anti-democratic dialectic:
March 8th, 2008 - 08:16 pm "Jerry,"A couple of questions: "1) When Plato uses the term democracy does he refer to the practice of Athenian government (which I take it was something like the government envisaged by the American founders, a government of the "right people" who own property)? Where could he have gotten a more radical concept of democracy from? "2) Though the allegory of the cave is supposed to be a metaphor about knowledge (the difference between opinion and true knowledge), it does present a suggestive picture of an actual political state. If so, what state is it meant to depict? Seems unlikely that Plato would depict an ideal aristocratic form of government in this way, though that is what it seems to be. This discussion is further confused by current opinion that Strauss and the neoconservatives were inspired by Plato's idea of a ruling class of philosopher kings." I will answer the first question in your comment in this post. But I urge the reader, whoever he or she is, to spur me to go on to the second question because it is the more complicated question. To answer the second question involves an evaluation of the place of philosophy in a democratic society. It requires literary judgment about the place of Plato's "allegory of the cave" within the Republic. It urges a contrast between our current philosophical interpreters of Plato and Socrates with the historical interpreters of Athenian society that produced Socrates and Plato. (In our specialized academic factories the philosophers rarely talk to the historians, except in the most trivial ways.) Finally your question can be properly back-lit by a contrast between Karl Popper and Strauss, who came to complimentary conclusions about Plato but for opposite reasons. When dealing with the political web of the allegory of the cave and its many connections a short answer is simply not enough. This is true if for no other reason than that the allegory comes in the context of explaining who and what a philosopher is and how he (for Plato a philosopher must be gendered "he") can guide and guard the state. So dear reader, please hold me to my promise to go down into this cave and come back out with a bit of explanation. As for your first points, let me state bluntly that the premises of your questions are wrong. What I offer below is an explanation of the radical nature of Athenian democracy and a historiographic explanation for why the nature of Athenian democracy has been ignored or slandered.
Periclean Athens was a democracy of all citizens. Athens remained a democracy for more than 300 years and I would argue, at its height, was one of the most radical democracies in history. After the Age of Pericles Athens continued to be a democracy, except during brief periods of political unrest and Spartan sponsored tyranny. Even after Alexander conquered the city, and ended Athenian independence, internal affairs were run democratically until Athens organized a rebellion against Macedonian rule. The time of Socrates and Plato was part of the most expansive periods of Athenian democracy. If you were a citizen you were a person who could, and probably would, serve on the administrative and policy making councils of the Athenian demos. Practically all of the important political positions were filled by lottery. All citizens in good standing were eligible for the lottery. Important issues were put to the vote in the assembly of all citizens. To maintain control of the aristocratic classes individuals of the upper classes were encouraged to bring law cases against other members of the upper classes, and the judges of those cases were large juries chosen by lots. Aristocrats were rewarded for ratting on other aristocrats for nonpayment of religious dues to maintain public festivals. If an aristocrat became too powerful he would often be ostracized. Modern day societies could learn a lot about control and punishment of rulers and owners by studying Athenian methods. Imagine if Corporation X could be rewarded by forcing another Corporation Y to pay Corporation X's taxes if X discovers that Y is violating health and safety rules, or is polluting, or is not paying its taxes. Such a situation would mean that "trial lawyers" would constantly be hired by one corporate entity to make sure that other corporate entities do not violate the commonweal. This was essentially the situation between aristocratic families in democratic Athens. Also, imagine if every five years or so we could vote to confiscate the property and send into exile any CEO that we choose by a simple majority vote. That might help keep the CEOs in line and stop them from laying off or transferring factories to non-union environments. Athens was, of course, a limited democracy, but what limited the democracy was the exclusivity of citizenship, not economic restrictions within Athens. Some of the richest residents of Athens were non-Citizens, called "metics," who had been invited to Athens because of their expertise in some craft or trade. Cephelus, who the reader meets in the first book of "The Republic," is reputedly the richest man in Athens and yet he is not a citizen and neither is his son Polemarchus, who was probably born in Athens. Foreigners and their descendants, no matter longer how long they lived in Athens, nor how successful they became, could not become "Athenians." Women were not considered citizens, nor did they have many legal rights, or rights of property. There is also the historically contentious problem of slavery, and the debates of slavery's relation to democratic Athens. Citizens could not become slaves, because of the reforms at the root of the democracy. But there is a good argument that imperialism fed slavery, and that slavery allowed for leisure even among citizen-tradesmen. Still, those who served on the assemblies and committees that amounted to the Athenian governmental apparatus were selected by lot. There was no property qualification for citizenship and no property qualification for being selected by lot to serve in the government apparatus. *[See bibliographical note below.] My questioner is wrong to say that Athens was a government of the owners of property. And the questioner is mostly wrong to point to Athenian democracy as a model for the Revolutionary generation of the American colonists in the future United States. For that last statement I would like to make some qualifications. Some of the more radical revolutionists anticipated some of the more radical "romantics" and did indeed look back to Athens as part of the "republican" tradition that they aspired to. The challenging radicalism of Athenian democracy was never accepted in all of its messy "populism". Thomas Paine is one such radical, but there were others. These were mostly "localists" (my term). It must be emphasized that many of these "radical democrats" were not themselves aware of some of the more radical aspects of the Athenian constitution. A list of aspects of the Athenian polity they were unaware of were "punishment" of powerful aristocrats through the encouragement of law suits, annual votes of ostracism, and other anti-aristocratic measures that might have transformed "radical republican" thinking into "radical democratic" thinking. In the debate over the Constitution these "localists" became anti-Federalists. Of those who drew up the U.S. Constitution, the evidence shows that James Madison was influenced by the Roman Constitution as a model, or rather the Roman Constitution as they knew it through Polybius and Montesquieu. The concept of separation of powers, with each power as a check on the other was from the Roman constitution. The concept of "mixed" government -- monarchy, oligarchy, and democracy -- balanced in a republican form of government, was also considered a reason for the success of the Roman Constitution and was copied by Madison. * Even given the mistakes in the premises of the above questions they are still good questions. Such questions and misconceptions get to the heart of a long debate in the literature on the basic nature of Athenian democracy. The debate has taken place on both the left and the right. But the debate has not been over the nature of the Athenian constitution, per se, or over whether all citizens could vote in assemblies. The historians are certain of these aspects of the Athenian city-state. The debate is over whether Athenian Democracy was merely a democracy, de jure, but a de facto oligarchy. There are three political traditions that have through the ages framed the debate over the nature of Athenian Democracy: (1) The radical democratic supporters of democracy; (2) Conservative and reactionary critics of all democracy as a form of mob rule; (3) Liberal and social-democratic critics of ideology and propaganda. It will not surprise most readers that until the late 19th Century most historians fell into the second category of conservative and reactionary critics. The people I am terming "radical democrats" were mostly left out of the "official" historical debate. Thus you would find the radical democratic arguments among non-historians such as Romantic poets, or in the speeches of politicians, or as a negative reflection of the arguments of philosophers. It was not until the generation of 1968 found made its long march through U.S. and British universities that notions of radical democracy found its reflection among professional historians. Liberal and social-democratic historiography appeared late on the scene and was mostly concentrated in Germany. Most of the social democratic historiography only survived for a short period and found its demise with the rise of fascism. All three of these traditions divided among themselves along similar lines. Was Athenian democracy a façade for elite or oligarchic rule or was it the real thing? If it was the real thing was Athenian democracy a form of terror inducing and redistributive "mob rule" or was it a stable form of "rule of law" with norms for elite control of the mob and democratic control of the aristos? Was the "slave mode of production" and imperial domination essential to the success of the "democracy" (thus making "democracy" a façade for the exclusive domination of Athenian citizens over others) or was Athenian domination of others simply a side-effect of the strength and patriotic unity of the democracy? Along with these questions a number of subsidiary questions formed: for instance, was some amount of equality imposed upon the aristocratic classes at the expense of liberty? Was the demand for equality in Athens simply a façade used by some factions, or individuals, of the aristocratic classes to politically defeat or ostracize other aristocrats? What might seem a bit strange is that the debate over Athenian democracy was crystallized around contemporary evaluations of the rise of Stalin, Hitler and Mussolini. But I think most readers with a working knowledge of 20th Century history can see how the problematic aspects of Athenian democracy could be worked out around the multiple crises (and failures) of revolutionary socialism between 1917 and 1939, i.e. the rise of Fascism in Italy, Germany and Spain, and the triumph of the Stalinist dictatorship. In a sense, the question of whether Fascism was a form of mob-rule, and thus a deformed form of democracy, was the same as the question of whether democracy in Athens was the rule of the "demos" or a façade for the dictatorship of the demagogues. The question of whether Stalinism was the dictatorship of the proletariat or the terror regime of the nomenklatura was posed in similar ways in the historiography of Athenian democracy. It is also a bit strange, to me at least, that the main polemical statement articulating the negative side of the debate over Athens was in a book about the fall of the Roman Republic and the rise of the Principate of Augustus. The book is one of the best classical histories written in the 20th century and rewards reading by historian and non-historian alike, Ronald Syme's "The Roman Revolution." It was published in June 1939 and Syme wrote under the pressure of the events in Italy, Germany, Spain and Russia during the darkest period for liberals and social democrats. Syme stated that "The Roman Revolution" was both a historical and political intervention against the dominance of Stalinism and Fascism. Near the very beginning of Syme's elegantly written book is what has been termed "Syme's Law." "In all ages, whatever the form and name of government, be it monarchy, republic, or democracy, an oligarchy lurks behind the façade." (p. 7) That sentence is the statement of Syme's Law. Once stated, many historians, for good and ill, and on the left and right, recognized the truth of Syme's Law. But is it a universal truth? Put it this way. It can easily be seen that our Republic here in the United States, for a long time, was simply a Republic that was acknowledged as a national oligarchy with some local democracy. As John Jay said: "Those who own the country should rule it." But are all democratic forms actually a façade for the rule of a small group of "men"? Is this true of all small towns as well as the country as a whole. Is there any tug of war between oligarchic dominance and democratic institutions? Apply some of these questions to the Athenian city-state. The history of the rise of democratic forms in Athens is the history of the suppression of family based alliances in favor of economic-based alliances. The rise of democracy involved the suppression of the arbitrary rule of family-dominated clans who exercised sovereignty over land and slaves as if they were proto-states, in favor of small landowners who farmed their own land. These smaller landlords increased their social power by making alliances with a small group of tradesmen, skilled and unskilled. This final point, the rebellion against the arbitrary rule of richer landlords and their family alliance, is what we usually call the formation of "the rule of law." The rebellion against family rule and the formation of the rule of law is paralleled in the city-states that under went a military revolution based on the hoplite phalanx. It seems that the military revolution that occurred around the same time in these city-states promoted small landowner unity against the rule of the big man or big family -- the chief, or the king and his allies. This occurred because the phalanx was the best military formation yet invented for a relatively small city-state. In order for a phalanx formation of hoplites to work, a high-level of training and trust must be maintained within the formation. The training of an army of citizen-farmers and the necessary high level of solidarity between those farmers led to group formation and group consciousness against the aristocrats who were mostly on horses. Thus around the 8th and 7th Centuries B.C.E. in many of the Greek cities throughout the Mediterranean legal rules were first formed and eventually individual rule was replaced by collective rule. Athens was unique both for the relative low quality of its land and the resultant size of its trading classes. This made the base for the transformation to collective rule much wider in Athens than in other city-states. Add to this the necessity of training a citizen-navy further increases the social weight of the citizens necessary to create a democratic city-state. Eventually collective rule encompassed all citizens. Simultaneously a number of "limiting" rules were instituted to prevent the reassertion of oligarchic rule of any kind, most particularly the choosing of government administration through a lottery where all citizens participated. But it was mostly the political and ideological influence of Syme's Law that pushed the debate from 1939 onward. The debate over Athenian Democracy in the post-war period paralleled the debate over the difference between "stable" democratic societies, that respect the rule of law, and private property, and "mob rule" that aims at revenge against minorities or confiscatory redistribution of wealth. Plato recognized the radical challenge of Athenian Democracy to the rule of "the best," the rule of the nobles. Was politics really only the rule of the strong? Do the strong set the definition of what is called justice? It challenged him to question the nature of every political construct and constitution. It led him to realize that the "rule of the best" and the "rule of the strong" did not coincide, especially since he had before his eyes the example of the strong "demos" and the weak aristocracy. How could an "aristocracy" become so weak? That was the next question. And the answer was because the aristocracy was in truth not made up of the best men, of the "true" elite. Plato further saw that all of the "best" aristocrats (Pericles for instance) had adapted themselves to the democracy by taking up "speech-making" and it was the job of those faux-philosophers "the Sophists" to teach the aristocrats how to make speeches. The Sophists gained the enmity of Plato because they taught the aristocrats, the "natural" ruling class, to accommodate itself to democratic forms. But the main reason why Plato opposed democracy is that he saw clearly that its "truths" were formed in the market place, the agora. The coin of the political "market place" was not gold or silver. The coin was rhetoric. In the view of Plato, rhetoric created values, false values from his point of view, but false values that could be exchange in the dirty politics of bartering for power. In the Assembly and in the Law Courts the Athenian's philosophy, a philosophy of the masses, was formed everyday. Plato believed that this was a false philosophy, what we would call today an "ideology". But he did not deny its power and he did not deny its origins in the democratic practice of debate, of give and take. Ultimately mass juries of citizens formed the power of democratic ideology in the crucible of "judging" guilt, innocence and punishment in the open courtroom of the agora. And as a result of the rhetoric of debate in the agora mass assemblies of citizens gathered and made political "decision" that turned "ideology" (this "false philosophy") into the reality of power. It is precisely at here, at the crossroads of mass power and debate, decisions and rhetoric, that Plato's "Philosopher Ruler" and the "allegory of the cave" can be seen as a solution to this mess of mob rule. Plato would oppose the false philosophy of the masses making decisions as a collective with the true philosophy of the eternal thoughtfulness. * Bibliographical note: A book that goes through the arguments over the nature of Athenian Democracy is Josiah Ober's "Mass and Elite in Democratic Athens." I highly recommend Ober's book for those interested in the technical issues of the status of democracy in classical Athens. Ober, in my opinion, is a bit of an old fashion "radical democrat" in his point of view. He is not a Marxist in his method. Ober writes from within a tradition of American pragmatism as he reinterprets it through John Searle's "Speech Act Theory." I am heavily indebted to Ober's work though in the end I would emphasize the "exclusivity" of the citizenship requirment as a crucial factor in Athenian cohesion.
A historian who argues for a conclusion similar to Ober's is Ellen Meiskins Wood in her book "Peasant, Citizen, & Slave: The Foundations of Athenian Democracy". She writes from within a Marxist tradition. It is especially interesting how the class analysis tradition of Meiskins Wood contrasts with the elite-mass analysis if Ober. Both of these books are interventions in a long argument about the nature of Athenian democracy. Thus one of Wood's point is that the great Marxist historian G. E. M. Ste. Croix was wrong to emphasize that Athens relied heavily on slavery in his great book "The Class Struggle in the Ancient World." Ober's book argues against what might be called "the American functionalist view" that Athenian democracy was a facade for elite or oligarchic control. Meiskins Wood argues against some in the Marxist tradition of interpreting Athens as if slavery and slavery alone could define its mode of production. For a general introduction to Athenian Democracy I would suggest two short and easy books, "Athenian Democracy" by A. H. M. Jones and "The Birth of Athenian Democracy: The Assembly in the Fifth Century B.C." by Chester G. Starr. Both of these books can be found cheaply and the Jones book is usually available at good libraries. For more on the Roman Republic and the U.S. Constitution see Paul Rhae's "Republics Ancient and Modern: Classical Republicanism and the American Revolution." Also see William Everdell's "The End of Kings" and for an old succinct article that I think I can email to anyone to see, The Influence of Rome on the American Constitution, R. A. Ames, H. C. Montgomery, The Classical Journal, Vol. 30, No. 1 (Oct., 1934), pp. 19-27. There have been many books written on this subject but this short article sums up the view of the influence of the Roman Constitution in a few short pages. I think one conclusion United Statesians should draw from this is that in order to understand the origins of their constitution they should read Polybius. In the main body of the text I bibliograph Ronald Syme's "The Roman Revolution". I suggest that the reader look at the book for himself. But if there is a need to know the extent of the impact of Ronald Syme's book on classical historiography I suggest looking through Between Republic and Empire: Interpretations of Augustus and His Principles edited by Kurt A. Raaflaug and Mark Toher. Most of the essays reflect directly upon the impact of Ronald Syme.
Jerry Monaco 10 March 2008 New York City

This work by Jerry Monaco is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.
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There has been a recent spate of books to add to the atheist's library. They all speak out against religion and the belief in God. This is not a new battle and in many ways the battle has already been won.
Why do I say that the battle against religion has been won? Because religious institutions are not the dominant institutions even in places that we think of as dominated by religion -- Iran, the United States, or Pakistan. The nation-state is the dominant institution. Multinational business entities, which nation-states serve in the great industrialized nations, follow closely behind. I current societies religious institutions are a distant third in their ability to control and dominate. The grounds on which religious bigotry could be a powerful force-of-itself have been transformed by the European powers and the creation of the nation state. If we look across the world today religious bigotry may be a motivating or aggravating factor in many areas, but religion only exists as a powerful force in relation to nationalism and the nation-state. Often religion as an institution tries to influence the nation state as a reactionary way to control the cultural side-effects of the dominance of multinational business entities in the state domanin. On the other hand, nationalist movements, whether covered by a velvet glove or masked by religious bigotry are always iron fisted and bold-faced, when seen clearly. The nation-state has been the superstition of the two of ages of reason and industrialized war, and though at times multinational corporations have attempted supplant corporate patriotism for nation-state jingoism, nationalism still remains the most dangerous ideology the world has ever known. The nationalist superstition is more dangerous than religion has ever been or ever will be, killing millions and millions of people in the great Europeans civil wars of the 20th century and motivating the European peoples to spread the nation-state form to all parts of the globe. If Richard Dawkins wishes to fight the most dangerous superstition he will entitle his next book, The Nationalist Delusion.
So we come to the death of Philip Agee. Agee was stationed in Latin America by the Central Intelligence Agency where he witnessed U.S. approved assassination, torture, and coups d'etat. He decided that he could no longer accept what he considered the secret betrayals of the U.S. government of the peoples of the Americas. He quit the CI A and instead of aiding and abetting the "official" enemies of the U.S. (Russia) he decided to give aid to the real enemy of the U.S. Government, the peoples of the Americas. He gave his information to reporters he aided in starting magazines that would expose CIA treachery, and he wrote a book in which he recorded what he saw. I was a subscriber and avid reader of Covert Action Information Bulletin through the 1980s and consider it a great contribution to exposing the institutional anti-republican forces that exist in our own government. In all of Agee's activities I think he did more to fight the most dangerous superstition than the good Richard Dawkins could ever do.
At least that was my personal experience.
When I was in high school I was the kind of kid who read spy novels, along with private eye novels, and some science fiction. I loved the tenebrous ambiguity of the best spy stuff. The labyrinth of mirrors was a place where I could wander freely in my mind. I always felt like a bit of a spy in my own house, so spy novels were the perfect metaphor for the thirteen year old boy who was asked to play the double-agent between between divorcing parents.
The spies of my imagination made me curious about the real world of spies. I already considered myself a socialist at 16, but I was still too much of a patriot to be a fully fledged anti-imperialist.

In 1975 I picked up Agee's book "Inside the Company: A CIA Diary" because it was about spying, not for its anti-imperialist content. What I read gave a face to imperial skulduggery as it was practiced in Latin America in the 1960s. Agee's book certainly did its job with me. I saw that secret intelligence agencies were not compatible with the basic principles of a (bourgeois) republic.
During the Valerie Plame affair Agee was much on my mind, since the underlying law that may or may not have been violated of exposing a CIA agent to public view could have been called "Lex Anti-Agee." (See, "The Rule of Law" and Secrecy: CIA Prisons and the Plame Affair, Chomsky on the Plame Affair and the posts here.) For me the Plame Affair provided two opportunities: exposing the hypocrisy of the Bush-Chaney clique, but more importantly exposing the anti-democratic nature of a law that essentially protects a secret society of brutal murderers and their support bureaus of intellectual clerks. As far as I am concerned the name of every CIA agent should be published and posted in the squares, markets, and forums of every town and city in the world.
Phillip Agee deserves credit for bringing light to one small part of a dark world.
Jerry Monaco 10 January 2008 New York City

This work by Jerry Monaco is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.
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I highly recommend Class Struggle In Hollywood, 1930 – 1950: Moguls, Mobsters, Stars, Reds, & Trade Unionists by Gerald Horne for anyone who wishes to gain an historical perspective on the current situation that led to the WGA strike and in union movements in general.

This book has been on my reading list for a long time, combining as it does my interest in labor history and in the history of Hollywood. The occasion of the WGA strike has brought me to finally pick up the book. What I am most interested in is to read about the origins of disunion between the Hollywood unions, and the role of the WGA and IATSE in this history. As Gerald Horne says in the preface of his book:
This is a book about labor-management conflict in Hollywood. It concerns the attempt of the Conference of Studio Unions (CSU), a federation of craft unions led by painters and carpenters, to confront not only the major studios but also a competing union, International Alliance of Theatrical and Stage Employees (IATSE) and its allies in organized crime. CSU went on strike in 1945 and was locked out in 1946. However, it fought its antagonists to a standstill in 1945. They were routed in 1946. The vanquishing of CSU erased progressive trade unionism for generations to come in one of this nation's most significant industries. (vii)
I hope to offer a complete review of Class Struggle In Hollywood, 1930 – 1950 in a future post. For now, I would like to write about something more personal -- the circuitous route of how I came to know about the events detailed in Gerald Horne's book.
When I first moved to New York in the early 80s, I met some veterans of some of the incidents that led to one of the first post-war strikes. It was the 1945 strike by the CSU and the 1946 lockout by the moguls of the CSU in Hollywood. Vince, who was in that strike, had been a carpenter and was living in Hoboken when I met him. He and his friends were black-listed for their participation in the strike. In fact they were black-listed not for being communists – the Communist Party had actually opposed the first post-war strike – but for being militant union leaders. What is little known, and generally suppressed by all parties as an inconvenient fact, is that the blacklist was not primarily used against Communists but against union organizers and militants. Further, the blacklist was not primarily used against writers, actors, and directors, the people we usually read about, but against set-designers, carpenters, painters, lighting-designers, etc. It is convenient for us at this late date to think of Hollywood blacklisting as mainly an activity of the past, and an activity that occurred during a limited period of time during the height of the cold war. This is indeed the case when we talk about stars and other well-known creative talent. The best way to discipline "troublesome" creative talent was to accuse them of being a communist, a homosexual. or a drug addict. Essentially, this was a form of blackmail by the bosses. But carpenters like Vince were not blackmailed in this way. If they were union militants of any type they were simply blacklisted. After the passage of the National Labor Relations Act in 1935 this kind of blacklisting of pro-unon employees was illegal, but it was still maintained, and especially advocated by extreme right-wing bosses like those who ran Disney. The blacklist of Hollywood union militants began long before the well-known Hollywood anti-Communist blacklist and lasted for a long time after. I would argue that it is still maintained to this day. For example, I think there is evidence that animation writers who try to organize with the WGA, instead of with IATSE, are still blacklisted in the industry. The current labor laws are so toothless that there is not much that can be done about this legally.
But even before Vince told me about the Hollywood strike and lockout of 1945-46, I had known about some of the incidents in this strike because of my love of film noir. The first time I heard of this strike was when researching a movie I was obsessed with since about age 13, "The Strange Loves of Martha Ivers." It is a strange title for a strange movie. It existed at the cusp of the collapse of the studio system. The movie was a very operatic film noir. In fact the fact that nobody has made an opera of it is either an indication of copyright problems or of the lack of a modern Donizetti to write the piece.
"Strange Loves" starred Barbara Stanwyck, who is also an obsession of mine, and was written by Robert Rossen, and directed by Lewis Milestone. Barbara Stanwyck, was one of those great self-trained actors, and one of the few to make her own way through the Hollywood star-system. She was also a right-winger and one of the first to jump on the anti-communist band wagon. Curiously, her politics never stopped her from working with left-wing talent. What she most desired for herself and other people was hard work, morning and night, and a little political hypocrisy went a long way in allowing her to work with people that she would otherwise want blacklisted. Milestone was a director who got around. He had been in Hollywood since the silent days. He was a good director but not someone I consider spectacular. Robert Rossen is probably best known now days for writing and directing "The Hustler," but he also directed "Body and Soul" and wrote and directed the 1949 version of "All the Kings Men." He was one of those screenwriters who got fed up with having his scripts gutted by producers and directors, and decided that he might as well trying directing his own work. The movie also has the distinction of being one of Kirk Douglas's first starring roles.
What I mainly knew about these Rosen and Milestone at the time I started my research on "Strange Loves" was that, later in their careers, they had both been called before House Un-American Activities Committee (HUAC) to testify. Both Milestone and Rossen were members of the original Hollywood Nineteen, which later became the Hollywood Ten, when ten of the 19 were indicted. They were both suspected left-wingers but both avoided indictment each in a different way. Milestone took the 5th Amendment and somehow, I don’t know how, avoided blacklisting. Yet in the aftermath of his refusal to testify his movie-making abilities went downhill. My guess is that after his refusal to testify he did not look for controversial subjects, nor did he take chances in his movie-making. He certainly sought out controversial subjects previous to his testifying, and "The Strange Loves of Martha Ivers", was the kind of loopy movie making that no one would expect from an old-time director like Milestone. The whole thing feels like some strange combination of a modern dress western (lone gambler-gunman comes to town to confront his past) and haunted house tale, completely with dark old mansions that mysteriously carry memories of past murders.
At first, in 1951, Robert Rossen also took the 5th Amendment in front of HUAC, but in 1953 he testified. His testimony was classic self-justification and makes a wonderful read. In Victor Navasky's Naming Names one can find the following account of Rossen's testimony.
Certainly many of those who named names resisted the informer label. Consider the exchange between the Committee and the writer-director Robert Rossen (BODY AND SOUL [1947], ALL THE KINGS MEN [1949], etc.), who in 1951 refused to name names but appeared again in 1953 ready to go through the name-naming ritual. "I don't think," he told the congressmen, "after two years of thinking, that any one individual can even indulge himself in the luxury of individual morality or pit it against what I feel today very strongly is the security and safety of this nation." Congressman Clyde Doyle of California tried to paraphrase Rossen's position: "In other words, you put yourself, then, in a position as a result of your patriotism or patriotic attitude toward your nation, which you came to subsequent to January 25, 1951, where you were willing to be labeled a stool pigeon and an informer, but you felt that was perhaps the privilege rather than a disgrace?"
MR. ROSSEN: I don't feel that I'm being a stool pigeon or an informer. I refuse--I just won't accept that characterization.
CONGRESSMAN KIT CLARDY: Well, Mr. Doyle means--
MR. ROSSEN: No; no. I am not . . . disagreeing with Mr. Doyle, but I think that is a rather romantic--that is like children playing at cops and robbers. They are just kidding themselves, and I don't care what the characterizations in terms of--people can take whatever positions they want. I know what I feel like within myself. Characterization or no characterization, I don't feel that way.'
Navasky, Victor S. NAMING NAMES. New York: The Viking Press, 1980, "A Note on Vocabulary"
Rossen not only named names but gave as many details on his political life as possible. He dramatized himself in world-historical terms. He was a good writer I think, because the coil of his thought could be seen through every bit of what he said, and often what he wrote.
I am trying not to be judgmental, because even though I believe that the committee and all of the red-baiters were scoundrels, I don’t believe that we can judge every individual who named names on a predetermined moral scale. None of us know what we would do in a similar situation. I don’t believe in heroes and it seems to me that the demand that people act as heroes is a demand for a special elite of humans who sacrifice themselves for the future. I would like to get as far away from the ideology of heroism as possible. As Bertolt Brecht wrote in his play Galileo, "Pity the nation that needs heroes."
What does all of this have to do with "Class Struggle in Hollywood" or with "The Strange Loves of Martha Ivers"?
During the filming of "Strange Loves" the painters and carpenters from the Conference of Studio Unions went on strike. Milestone refused to cross the picket line and briefly filming stopped. One day in October 1945, Barbara Stanwyck and some of the other actors went up to the roof of the studio and what they saw was cops and IATSE thugs beating up the CSU pickets. There was a battle raging outside of the studio. Kirk Douglas, who was in his first big role with a starring actress, agonized over the fact that he had crossed a picket line. Milestone and Rossen both did not know whose side to take. The CSU was a truly militant union that wanted to organize everybody in the industry on an equal basis. This strike could have been a beginning of true industry-wide union solidarity in Hollywood. And there Milestone was, a sympathetic leftist sitting the battle out. And there was the cast and crew of "Strange Loves" standing on the roof watching the battle between police and strikers, watching the barricades set up in front of the studios, the burning police cars, cars tipped on their sides and dragged to the middle of the street to serve as barricades against the high-pressure fire-hoses and the club-wielding thugs. Hundreds of CSU picketers, but none of the strike-breaking thugs, were arrested. Eventually the CSU was defeated and I would argue that the Hollywood union movement never completely recovered. The reverberations of this defeat can still be felt today in the lack of solidarity between the IATSE leadership and the WGA, and IATSE's traditional pro-company stance.
One reason why Rossen and Milestone did not know what position to take in relation to the CSU strike was because the Communist Party, had opposed the strike as a break of the World War II no-strike pledge. This is ironic because the CSU was accused of being a "Communist" union. It was not a Communist union, far from it. In fact there were no communists leading this particular union. But the union was red-baited and the leadership was jailed. The studios launched a media campaign against the union. The studios also made sure that IATSE got preferential treatment. IATSE at this time was very close to the mob, and it was in fact the Los Angeles gangsters who supplied the anti-CSU IATSE goon-squad. This was the story I was told by some of the veterans of the strike.
The historical lesson here is something that every unionist should know. In the post-war period government and management all opposed the threat of militant unions. At this time there were more militant unions than corrupt unions. One way that management opposed militant unions was by red-baiting them. In many cases the unionists who were being red-baited were not communist or even "leftists". They were simply good union leaders. This was the case with the CSU. Another strategy that management used in opposing militant unions was to find unions that were friendly with management and to promote the interest of those unions over and above the militant unions. A related strategy, and one of the most important, was for management to call in the mobsters and the unions allied with the mobsters. In every case across the U.S. in the post-World War II years – among electrical workers opposing General Electric and Westinghouse, among dock-workers in the east, among Midwestern Teamsters – management and government promoted unions allied with mobsters in order to defeat unions that actually had the worker’s interest as part of their program. The story of Gerald Horne’s "Class Struggle in Hollywood" is the story of how this happened in Los Angeles.
As I read this book I will provide significant quotations. I am enjoying the book immensely, and I would highly recommend it as winter reading for all writers who are on strike, and all their supporters.
"The strife of the mid-1940s was also important for other reasons. At stake was nothing less than control over an industry that was essential in forging people’s consciousness. The titans of Hollywood had invested mightily in creating a "star system" that had captivated the imaginations of millions worldwide who followed the doings of actors – on and off the screen. Hollywood was surely a ‘dream factory.’ And these iconic actors lived lives that were the stuff of dreams as they instructed and mesmerized. But how would the multitudes respond to the sight of their favorite stars on picket lines, embroiled in a class struggle? How would the masses react when the Oz-like curtain of illusion was ripped away, revealing that the issues in Hollywood were not that different from those in Detroit, Pittsburgh, and other labor-management battlefronts? Yet there was at least one significant difference: class struggle in Hollywood could grab attention and provide lessons in ways unmatched by other labor-capital conflicts.
"Other factors help explain the ferocity of the onslaught on Hollywood labor [in the post-war years]. The screenwriters, which did include a complement of Communists, were indispensable to the production process. Though the moguls sought to show otherwise, making a decent movie without a competent screenplay based on a sound idea was tough. Even in the digital era of the twenty-first century, dispensing with writers – unlike other guilds and unions – will be difficult. Moreover, screenwriters, who were genuinely interested in intellectual exchange and foreign film were countered by moguls who were desperately interested in constructing firm protectionist walls to keep international cinema out of the U.S. market. When the screenwriters – who actively fought against tariff walls that kept foreign films from U.S. audiences – were denuded of Communist influence, it became easier for the moguls to bar foreign films while conquering markets abroad. This protectionism provided a comfortable cushion of profitability that proved critical to the industry in the post-World War II era in the face of a stiff challenge from television, independent film producers, and a successful antitrust lawsuit that disrupted the vertical integration of Hollywood. In fact, labor unrest in Hollywood erupted at an unpropitious moment for the moguls, confronted as they were by all manner of challenges – not least of which was anti-Semitism. Bulldozing CSU seemed all the more important in a context where nettlesome problems seemed to be proliferating and metastasizing."
At one point Horne comments: "By the time the unions went on strike in 1945… the studios were the ones exhibiting ‘class consciousness,’ standing shoulder-to-shoulder to confront a common foe, while the unions were busily knifing one another. The conflict in Hollywood illustrated an age-old lesson: class consciousness does exist in abundance in the United States; it is just painfully deficient among the working class."
Here I would like to point out that the owners of the multinational corporations are the most class-conscious of groups in history. They are constantly engaged in, often deadly, class struggle against those who challenge any bit of their power and dominance.
Jerry Monaco 24 December 2007 New York City
[Caveat: I am not a member of the WGA, nor do I speak for any of the officers or members of that union or any other union. I have been a member of other unions in the past and I am a supporter of a stronger union movement in the United States. J.M.]

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28 December 2007 P.S. Ms. R. Kafrissen has a wonderful post on the mechanics of the blacklist at Rootless Cosmopolitan Mechanics of the Blacklist, Part 1. I highly recommend it.
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An anonymous reader writes in reply to my previous post:
The fact that you can express your views openly and without fear in this "terrorist" state of America is a privilege that ordinary Cubans are not allowed..The fact that you have uncensored open access to the internet to present your views and gain access to a multitude of information is a privilege that ordinary Cubans are not allowed..the fact that you're free to spread misinformation and be an apologist for a repressive tyrannical regime should be your shame..and the fact that you will delete this message should prove that you're no better than they are. Just call me an old fashioned Cuban who wants his country's freedom..and as far as I can see, an enemy to that end is you. see Cuba, Responsibility, and the Republic of Hypocrisy
Internally the United States has a high degree of civil liberties. Externally we have the most violent government in the world. There is no contradiction in this.
It has often been the case in history that imperial states which commit terrorist acts abroad, have had a high level of internal freedom. Athens, at the height of its empire, Rome, at the height of the Republic, and Britain during imperial expansion, were more free internally than practically all other states that these countries could be compared to in their time. This does not mean that these imperial states didn't commit huge atrocities, and that the people who benefited from those atrocities were not responsible for them.
Today we are probably the best place in the world for internal free speech.
But our freedoms did not drop from the sky. They were the result of thousands of deaths over a hundred years. It was not until the 1930s that free speech began to be established in the United States, and it wasn't until the Civil Rights movements of the 1960s that freedom of speech became a national standard. Before 1965, if you were black in Mississippi or Alabama then you had no freedom of speech. In fact, speaking out often led to death. Before the 1930s in this country if you were a labor organizer you had no freedom of speech and speaking out could lead to severe beatings if not shoot outs. So yes I am proud that I live in a country with the highest level of freedom speech than probably any country ever had in history. These are gains we fought for and won and we will have to continue to fight to keep them.
But if anyone thinks that our internal freedom justifies the murder of hundreds of thousands of people in Central America, (for example) or terrorism in Cuba, or the overthrow of democratic governments around the world, then I would say that this is simply more evidence of the Republic of Hypocrisy. It is evidence that most people who think about these matters in the U.S. are unable to even see where their moral responsibility begins. Moral responsibility begins with the atrocities we commit, not with the atrocities that someone else commits. Pointing to our own internal freedoms in order to divert attention from our murderous policies abroad is simply another way to refuse to face the basic moral question.
In some sense the question is the same as it was with Saddam and Iraq. Of course in that case the atrocities were much worse and deeper. But also the atrocities were directly sponsored even encouraged by the U.S. government and its foreign policy intellectuals, among others. One way the U.S. government could have stopped atrocities in Iraq under Saddam would have been to stop committing them and supporting them, and creating the conditions in which they continued. The major atrocities of Saddam Hussein were committed with U.S. support and then our intellectual priesthood turned around and used those same atrocities to justify more U.S. atrocities in Iraq. The idea of actually putting a halt to our atrocities would of course be a novel idea for most people, since most people do not know about the atrocities we committ. Again this is in part our fault. The course never taken when discussing human rights violations is to ask, which ones do we support, and which ones can we stop simply by not perpetrating them. One way for the U.S. people, privileged intellectuals especially, could try to stop the atrocities committed in Iraq would be to organize against the government promoting those atrocities, our own government. Until that is done, in this and similar cases like Cuba, all else is hypocrisy. Not your hypocrisy or "their" hypocrisy, but our hypocrisy.
So the question on the table is where does our moral responsibility lie? Is it with our own human rights violations or are we responsible for the human rights violations of the people we oppress and violate? Are we responsible for our actions or for the actions of others? If we are responsible for both, for which actions to we bear the most responsibility? These are basic moral questions.
If you face these entry level question then other questions may be faced afterward, but not without taking into account whether your words and actions will help to increase or decrease the oppression of others. Simple questions, but hard to answer. First, you must explain your moral stance in relation to the atrocities "we" support through our government and how your opposition to the Castro regime will lessen the oppression of anybody in the world. Only then will we be getting at the nub of the matter. But most people in these United States, at times my self included, can't even "see" our own responsibilities and the atrocities we commit. They only see the atrocities of our "enemies". But as I said, in my opinion, in the current state of affairs the only enemy is at home, not in Cuba, or among fundamentalist Muslims, or anybody else.
In my opinion the high level of internal freedom increases our moral responsibility in regard to the actions of our government and its business institutions abroad.
Jerry Monaco 26 December 2006 New York City

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Related post: Cuba, Responsibility, and the Republic of Hypocrisymusic: Wrapped Around Your Finger - the Police
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It seems likely that soon Fidel Castro will die. With the prospect of his death, the liberal intellectuals in the U.S. will increase their debates over human rights in Cuba. They will once again charge the Cuban regime of being the biggest human rights violator in the western hemisphere, refusing to look at the atrocities committed by their own government. There will even be those on the "radical left" who, it seems, will cheer on U.S. sponsored counter-revolution, for the sake of their own ideological purity.
Let's agree, that the issues I write about here are more important than anything I might say about philosophy or academic institutions or any other delusion of grandeur of the clerical classes.
In the first place, the problem is here in the United States and not in Cuba, and the problem is with all of us. Maybe, this is my petty bourgeois moralism coming out, and I am sorry to people I generally agree with if they think I am blaming them. I don't exclude myself.
Try to imagine the United States in the same position as Cuba. Try to imagine a super-power thousands of times more powerful than the U.S. united against the U.S.; perhaps some united coalition of Europe, the old Soviet states, Japan, China, and all of the oil countries, plus all of the countries in the Western hemisphere. Then try to imagine this ultra-super-power repeatedly invading the U.S., bombing our hotels and airplanes, repeatedly attempting to assassinate our leaders, poisoning our livestock, and trying to spread diseases that make our cash crops useless, employing biological warfare of all kinds, recruiting "exiles" from the U.S. to form secret armies to attack U.S. interests around the world. Try to imagine all of this if you can. Then what do you think would be the human rights reaction of the U.S. rulers in relation to its "dissenters"? And then if this unimaginably large imagined ultra-super power, also imposes blockades and embargoes on the U.S. so that even the most basic economic functions are made to scream, what do you think the reaction of "our" rulers would be?*
The point is almost mute because nuclear bombs would have already slaughtered a billion or so people in the countries that supported the coalition against God's chosen country.
But supposing we didn't destroy half (or all) of the world in our God ordained rage, what would have happened to civil liberties in this country?.
All one has to do is to look to the evidence of the past and the present. Not only would masses of "dissenters" be in gulags, that would dwarf the gulags of the Japanese internment**, but they would probably also dwarf the gulags of the old Soviet Union. Not only would habeus corpus be suspended for enemy combatants***, but most of us who dared to disagree with our government would already be labeled "enemy combatants." Further there would be right-wing "Christian" and KKK-like death squads in the streets, kidnapping and murdering homosexuals, union members, blacks, and other people of color, and immigrants. If evidence of the past is any indication many of these death squads will be composed of cops and police departments themselves will be purged of "dissenters".
The Cuba of the 60s, 70s, and 80s would be a human rights haven compared to the U.S. under similar circumstances. In fact compared to U.S. sponsored and created "death squad democracies" and terror regimes through-out Latin America -- Brazil, Argentina, Columbia, El Salvador, Guatemala, -- Cuba was a human rights haven. It was a human rights haven also for exiles from those terror regimes. Compared even to the totalitarian state of Mississippi during the 50s and much of the 60s, Cuba even comes out smelling like roses during its worse periods of human rights violations.
But even this comparison doesn't get at the heart of the matter. Because the point is that this country, the United States, has committed and is committing human rights violations in Cuba, And where is the resounding sound of "human rights" intellectuals standing up and protesting U.S. committed human rights violations in Cuba? Well nowhere. Because we don't even recognize our responsibility.
The amount of hypocrisy that is evidenced by U.S. intellectuals criticizing Cuba for human rights violations after the campaign of terror that our tax dollars sponsored against Cuba is more evidence of the inability of our intellectual culture to even conceive of the meaning of "responsibility". Good, go ahead, "admit" the human rights violations in Cuba, even blame Cuba for them. But there is one thing that all of us could do immediately to stop a fair amount of human rights violations in Cuba. Stop or try to stop our country from sponsoring human rights violations in Cuba. Every terrorist act, and attempt at economic destruction, sponsored by the U.S. in Cuba is a human rights violation.
So all of you who want to stop human rights violations in benighted Cuba, just remember hypocrisy begins at home. We will continue to live in the Republic of Hypocrisy in the near future until most of us realize that the country we are responsible for is the United States not Cuba. We are more responsible for the repression and murders we commit in Cuba than for what ever repression the Cuban regime commits in Cuba.
I am an old fashion "radical leftist" in that I think that "the main enemy is at home." But that is too gentle. At the moment, as far as I cans see, the only enemy is at home.
Jerry Monaco 25 December 2006 New York City
* For those who don't know, all of these actions, assassination, attempted assassination, terrorist acts, germ warfare, were acts the United States, committed against Cuba.
** For those who don't know the U.S. government put all people of Japanese descent, citizens and non-citizens alike, into concentration camps during World War II. Their property was also confiscated. If the U.S. did this under the real, though remote, threat of a Japanese invasion of California, imagine what the civil liberties response of the U.S. would be if it was threatened by my hypothetical ultra-super power.
*** There is no threat of enemy invasion of the U.S. today and yet for those designated as "enemy combatants", habeus corpus and the normal rule of law and due process of law are suspended. There is also no due process for the initial designation of "enemy combatant." It is essentially an almost unappealable administrative act of the executive branch of our government.

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Related post: Freedom and Moral Responsibility: the U.S. the free-est internally; the most violent externally
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| » Shakespeare on the Iraq War |
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 2006
Nov. 9th, 2006 @ 06:54 pm
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| » The Memory of the "Roman Republic" in the Late Empire |
The Importance of the Lingering Memory of the "Roman Republic" During the Late Empire: A Letter from Ausonius to the Emperor Gratian
In 379 C.E., during the late period of the Roman Empire, long after the forms of the Roman Republic had been drained of content, Ausonius, of Bordeaux wrote a letter of thanks to the emperor Gratian, who himself was not from the City of Rome but was from Pannonia. (At this point in imperial history the actual political connection to Rome was quite tenuous, which makes Ausonius' detailed knowledge of Roman history even more interesting.) The letter was occasioned by Ausonius' appointment to the position of consul, the most important elected position in the long dead Roman Republic. Ausonius is listing all of the tribulations he has been spared by emperor Gratian's appointment of Ausonius as Consul.
"For my part, as consul by your gift, Imperator Augustus, I have not had to endure the Saepta [the wooden ramps also known as the "sheepfold" where voters lined up to vote - JM] or the Campus [the place where voting took place - JM], or the voting, or the points [recording the votes], or the ballot boxes. I have not had to press people's hands, nor, confused by the rush of persons greeting me, have I failed to reply with their right names to my friends or given them the wrong ones. I have not gone round the tribus, or flattered the centuriae or had to tremble when the classes were called [to vote]. I have not made any deposit with a trustee or agreed anything with a diribitor. The populus Romanus, the Martius Campus, theequestor ordo, the Rostra, the "sheepfold" [the Saepta], the Senate, the Curia - for me, Gratian alone, was all these things." (Quoted in Fergus Millar, The Crowd in Rome in the Late Republic.))
But why should this matter? Why should the memory of the Republican campaign season weigh so heavily for Ausonius? Why is Ausonius so relieved that he does not have to bear the burden of the toga candida, (the specially whitened toga worn by those who sought office in Republican Rome)? Was it simply that Ausonius was grateful that his appointment as consul did not come at the expense of running for office? Is it possible that Ausonius was simply relieved that his promotion to the honored office of Consul, was not a hardship on his pocketbook and a diversion of his time? This I suppose is reason enough to be grateful to emperor Gratian. Yet this letter also functions as flattery and praise, which brings further puzzling questions. Why would Ausonius believe that Gratian would read such a letter as flattery of himself and praise for the office of emperor? Why was the basic fact that the Roman multitude no longer selected the person to fill the office of consul considered worthy of praise at this late date? Why was the fact that such offices were within the gift of the Emperor considered an attribute of imperial worthy of flattery in and of itself? Why was it even worth mentioning the Republican politics of the multitude at such a distance of time and place from Republican Rome?
The Republic had been dead for more than 400 years. It was no longer necessary to campaign for elective office; yet the memory of Republican forms of the city-state was both dream and nightmare for the officials and people of the Empire. And this was not only true for elite and multitude inside the Roman walls but for all those who were Roman citizens in the empire. The newly appointed consul Ausonius and the emperor Gratian were of course Roman citizens, but neither considered the city of Rome their home. In this little excerpt Ausonius demonstrates an easy knowledge of what campaigning for consul was like under the Republic. The memory of these electoral campaigns were not only dead forms they were important to the historical justification of imperial rule. The emperor himself was identified with the sovereignty of the Roman people and at the same time the sovereignty of the Roman people was a living fear that made the rule of the emperor a lesser evil. Gratian alone was for Ausonius all that the sovereignty of the Roman populus had been for Cicero. This is not an unmixed blessing when one realizes that the Roman populous not only elected Cicero consul but also exiled him from Rome after "the mob" burnt down his house and erected a temple in its place. Yes, Gratian the Emperor, was not only meant to take the place of the Roman Populous but was also meant to take power from the Roman multitude.
It was the very memory of those Republican forms and the Emperor's symbolic assumption of the role of the Roman populous, his identification as the "father" of all Roman citizens, that kept alive the Ideal, both the memory of the Republic and the authority of the emperor.
Rome before the Caesars had been a city-state, with the Republican forms that worked best when the ruling elite as a whole had cross-social connections to the multitude as a whole. . Yet by the time of the Late Republic the city of Rome carried a population of a million people, and Roman citizenship had been extended to include people from the whole Italian peninsula. Further, Rome had extended its dominion over the whole the Mediterranean basin and more. This meant that the political forms that were developed to emphasize the face-to-face politics of a medium size city state were the very forms that of a political the size of a modern nation-state, with a dominion over a large empire. The city-state politics of social struggle between mass and elite and factional struggle within the elite could determine the course of a substantial empire.
The ruling classes of the whole empire considered the multitude of the City of Rome no more than a monstrous mob, a bunch of wild animals that needed to be placated and controlled. . The mass politics of a large metropolis was something new in human history and had never been encountered before. It was feared and not understood in much depth, except by a few politicians among them perhaps Publius Clodius and Julius Caesar. The mass mob of Rome was feared and yet it could seemingly determine the fate of the whole empire. The dominions of Rome looked at the triumph of a single Imperator, an individual man with a monopoly of imperium and a wealth of auctoritas , as a relief from the constant instability of civil war. The Roman oligarchs looked at the dominance of a single Imperator as a protection from the mass politics that had swept Rome and had upset their privileges since the time of the Gracchi. And at least, at first, the multitude of the Roman city looked at Julius Caesar and later Marcus Antonius as protectors of their rights and a representative of their interests.
One of my conclusions from my study of the Roman Republic and of its historical memory during the imperial period is the following: The lingering memory of Roman Republican electoral politics, the identification of the Roman multitude with the Emperor, acted as justification for imperial sovereignty and warning against the loss of such sovereignty.
My very limited point is to account for a certain kind of historical memory, i.e. the way the political tribulations of the Roman Republic, and especially the politics of the urban mass, seemed so important to the Emperor and literate elite groups. It does seem strange indeed that political leaders who had little living connection to the city of Rome as such, and no connection to mass Republican politics at all, should constantly use it as a counter-example to their own means of leadership.
Of course the historical memory of politics under the Roman Republic was not the only justification for imperial rule. In my view, probably only Augustus himself reconstructed Republican ideology as the main prop to justify the complete dominance of the first man, the system of the principate. Ironically he also turned enemies of Julius Caesar, such as Cato, into plaster saints -- to use an anachronism...
Yes, the rise of Christianity changed much of the justification for political dominance and sovereignty... but I would argue that the significant change occurred much earlier and that Christianity itself was an opportunistic and contingent graft onto ideas of the prince's rule by divine dispensation. It is a pagan notion, after all, that the leader is in some way divine. Lily Ross Taylor in her philological monograph traces the idea of the divinity of the Roman Emperor quite well and I generally think that her work still holds up. I think that it was the rulers themselves who grafted the notions of gratia Deo, onto Christianity. Earlier, when Christianity was not much more than a very weird cult, the main conflict between the Emperor and the followers of Christ was that they refused to swear loyalty to the emperor because they thought such swearing of loyalty was a concession to his divinity.... The notion of gratia Deo was a very interesting way to turn all of this inside out.
Jerry Monaco 23 Jan. 2006 New York City
Shandean Postscripts to Politics, Philosophy & Culture Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco Technorati Profile for Shandean Postscripts

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Jan. 23rd, 2006 @ 11:11 am
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| » Why pay attention to the New York Times? Organization, Normalization, Ideology |
Edward Herman does his usual incisive work in decoding the New York Times.
"The biases of the New York Times surface in one or another fashion on a daily basis, but while sometimes awfully crude, these manifestations of bias are often sufficiently subtle and self-assured, with facts galore thrown in, that it is easy to get fooled by them. Analyzing them is still a useful enterprise to keep us alert to the paper’s ideological premises and numerous crimes of omission, selectivity, gullible acceptance of convenient disinformation, and pursuit of a discernible political agenda in many spheres that it covers." From Fog Watch - The New York Times Versus The Civil Society: Protests, tribunals, labor, and militarization and wars - By Edward S. Herman Z Magazine -
But here is my basic question. Why? We need information but why look at the New York Times at all? Why worry about it?
1) Because it has so much influence over the governing elite? Is this true anymore? Perhaps it guides the governing elite.
2) Perhaps by reading the NYT and the WSJ critically we gain insight into the ruling class and its aims? Is this true? In that case if we can use those insights as an organizing tool then we are doing ourselves a service.
3) Because we don't have counter-hegemonic media of our own that establishes a grand world view for radical change and will set to crumbling the world view of the New York Times? This goes back to to point one and the overwhelming influence the times have on governing elites. That influence is bound to seep through to those who oppose the Rulers and Bosses, unless we counter the distortions and ideological spin and outright lies.
4) But in the end the reason we have to spend so much time decoding the New York Times and other media of ruling class ideological "information", is because we are too weak to establish our own media for organizing and information.
So in short: Why pay attention to the New York Times? Because of the failure of the left to organize.
Famously, in Lenin's What is to be done? he argued that a regular paper of a working class party is an organizing tool. Bolshevik party organization, was bound to be dictatorial as Rosa Luxembourg realized early on, but the fact is that Lenin, before he took power had deep insight in how to organize. It is part of the tragedy of Bolshevism and the atrocity of Stalinism that these organizational insights have been lost. The fact is that as the left stands today in the Western capitalist republics, there is no network of radical media that is also used as an organizing tool. There are small networks of radical media and they are very loosely connected to organizing networks. But unless the organizing networks and the media networks are organically related we will never be able to make the first step toward constructing a counter-hegemonic world view.
The South End Press collective and the people at Z Magazine have been trying to build such integrated networks for years but unfortunately the network is too small and too loosely connected to other cooperative organizations and to unions. It is not there fault. People such as Michael Albert and Lydia Sargent seem to me to be near heroic in their commitment to a vision of radical democracy. But over and over again I keep on coming back to the same point in my mind - we on the left must not be organizing correctly if we are not organizing better than say the right wing Christers.
The Process of "Normalization": A suggestion for using Herman's & Chomsky's model to study legal institutions:
Edward Herman continues:
( Continue reading )
Jerry Monaco New York City 2 December 2005

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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 http://www.livejournal.com/users/jerrymonaco/
Notes, Quotes, Images - From some of my reading and browsing http://www.livejournal.com/community/jerry_quotes/

Dec. 2nd, 2005 @ 06:51 pm
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| » Secret Prisons, Spies, Lies & Democracy II |
In a previous entry, "The Rule of Law" and Secrecy: CIA Prisons and the Plame Affair, I drew connections between the Plame Affair and the gulag of secret prisons run by the Central Intelligence Agency. I wrote:
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, such a person 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.
According to the BBC, "The US Central Intelligence Agency has taken the first step toward a criminal inquiry into who told the media that it runs secret jails abroad, reports say."
Who are these prisons secret from in the first place? They are not secret from the people in the prisons or their families. They are assumed to exist by most people in countries that fear U.S. imperialism. The U.S. government of course can brush such speculations away as a conspiracy theory and "anti-Americanism" - because, as we know, the people who are under threat by the U.S. government's terror tactics are prone to such conspiracy theories. The truth is that these secret prisons are not meant to be secret from the purveyors of retail terrorism through-out the world. The U.S. government, the main purveyor of wholesale terror in the world today, means to keep these prisons secret from the domestic population of the U.S. and the populations of every country where these prisons are kept. Why? Because if such facts were widely known they would provoke outrage - not the outrage of terrorism, but the outrage of democratic protest.
These secret prisons were never so secret. More than a year ago I read about them. Here is one of the articles I read in June 2004 - Secret world of US jails: Jason Burke charts the worldwide hidden network of prisons where more than 3,000 al-Qaeda suspects have been held without trial - and many subjected to torture - since 9/11.
The people who leaked the information of these secret prisons to the Washington Post may have been playing their own bureaucratic games, but they have done a service to all of us who value the semblance of democracy that remains to us. Democracy is murdered in secret. The bare minimum of a conservative republican form of government, a government of due process and the rule of law, cannot be maintained when the government is maintained by secret organizations of political spies. The fact that our government runs secret prisons is only an end product of the permanent government of secrecy that has existed in the United States since it became a world empire.
As I said in my previous entry, "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.'" We live in a time of emergency in the United States. The emergency is for the wounds that are debilitating the republic.
Jerry Monaco New York City 9 November 2005

This work is licensed under a Creative Commons License.
-- 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 http://www.livejournal.com/users/jerrymonaco/
Notes, Quotes, Images - From some of my reading and browsing http://www.livejournal.com/community/jerry_quotes/

Nov. 9th, 2005 @ 03:54 pm
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| » "The Rule of Law" and Secrecy: CIA Prisons and the Plame Affair |
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.

This work is licensed under a Creative Commons License.
-- 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 http://www.livejournal.com/users/jerrymonaco/
Notes, Quotes, Images - From some of my reading and browsing http://www.livejournal.com/community/jerry_quotes/
Nov. 2nd, 2005 @ 02:48 pm
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| » Rhetoric of Terror, Administration, & Exceptions to the Rule of Law |
The Law and Disorder Weblog by Rob has been consistently interesting. It is good to see a legal weblog from a person with a Marxist point of view. Rob has had two posts reflecting on the Terrorism Act in Britain, Defining Terrorism and Some more aimless ramblings on the 'glorification of terror' . It is the second post that I wish to comment on.
Rob begins by stating - "A lot of people have pointed out that the definition of 'terrorism' in the Terrorism Act is so broad that it encompasses way too much." Further on he states that the broad definition of terrorism "is then fogged up by the government claiming, very sensibly that people already know what terrorism means." Further Rob says that all prosecutions will be at the discretion of the Director of Public Prosecutions.
I will first make a few comments on the British "Terrorism Act" from the point of view of U.S. law and then I will make some general observations.
Let me point out that in U.S. law I would consider two separate issues here which are related but only one of which I could argue before a court. The first issue is the vagueness of the law and the second issue is prosecutorial discretion. As a good lawyer I would argue that the Terrorism Act is defective because it is 'void for vagueness.' I would not win in this argument given the current ideological assumptions of our courts. and social conditions simply because the court would take the 'fogged up' claim of the government and give it a definition consistent with the prosecutors action. In the particular case.
This brings me to the second issue of prosecutorial discretion. In U.S. law that there is simply no solution to the problem that the prosecutor decides who to prosecute when and where. If it so happens in a certain jurisdiction that most people who get prosecuted for drug use are African-Americans, that most people who are arrested for drug use are African-Americans, that African-Americans are more likely to be prosecuted to the hilt than middle-class white United States citizens, even if African-Americans don't use drugs at a higher rate than other U.S. citizens - if all of this happens to be true then that is just happens to be the way the law works. There is simply no justiciable cause of action that a court can decide.
But the United States has not even reached this point because we have made an end run around legal definitions and the facade of the rule of law. As it seems from recent cases, the mere labeling of a person as an 'enemy combatant' seems to take a person out of the system of due process. Further more, most labeling of groups as terrorist takes place behind closed doors in law enforcement institutions both on the federal and the state level. In the well known examples from the 1980s, support of the African National Congress could be considered support for a terrorist organization but, support of the "Contras", while they were attacking "soft-targets" such as medical clinics and agricultural cooperatives. The ANC was terrorist by definition and this label was given to the ANC by the State Department. Similarly, in many states and cities in the U.S. it is the police departments or the state troopers that label local organizations as 'violent' or terrorist. This is an administrative process from which, for the most part, there is no appeal. In other words administrative discretion in this area is very broad and is not given to judicial oversight. (I do not know the situation in Britain but in the U.S. administrative and law enforcement agencies are given a large amount of deference by the courts.)
Rob at Law and Disorder appropriately ends his post with the following observation on the "Terrorist Act":
What is actually being created is a system whereby the state can pick and choose its enemies, before throwing them in the slammer. The brilliance of the scheme lies in its simultaneously broad and particular nature. Due to the language of the statute most people who take an interest in politics, and particularly international politics could be criminalised (inasmuch as politics is always potentially 'violent') but discretion is vested in the state, hence each prosecution will be even more particular than normal.
This means that the law resembles a series of discrete decrees rather than a law with particular enemies of the state being carted off as and when necessary. This is the sort of law that is completely opposed to bourgeois notions of the 'rule of law', since it is so wide it is virtually impossible to 'plan your life' by it.
In fact I'd say this is the sort of law that shows late capitalism begins to erode the legal form, in that it is very difficult to see how this is a 'general law' binding on legal, formally equal subjects and not a discretionary piece of 'administration' or the pure particularistic command on the part of the 'sovereign'.
It is my point that the United States got to the same place not through passing a law such as the Patriot Act, but through administrative and executive fiat. In order to see this clearly we must take a detour into the history of the rhetoric of the word terror.
In analyzing these laws it is important to remember the history of the rhetorical use of the notions of "terrorism" and "terror". As far as I know no one has written a history in depth of the rhetorical transformation of these notions. Edward Herman in his book from the 1980s "The Real Terror Network: Terrorism in Fact and Propaganda ", covers this territory briefly, but it was written as a polemical contribution to the battles of the time and cannot be detached from the conjuncture of the 1980s. I don't think that anybody has written a full length history of the transformation of the notions of terror and terrorism from its historical political application to its current use by dominant states. (As examples I am thinking of two representative histories that have traced the rhetorical and legal histories of particular notions - The Many Faces of Judge Lynch: Extralegal Violence and Punishment in America by Christopher Waldrep and Boycott in America: How Imagination and Ideology Shape the Legal Mind by Gary Minda , though I would criticize Minda's book for relying too much on untenable notions of language and cognitive science and Waldrep's book for not taking into account the social relations behind the rhetorical battle over the notion of lynching.)
As is well known in the late 18th century through the 19th century the words "terror" and "terrorist" were used to designate state-regimes that used violence against sections of their own population. In other words a "state of terror" designated a regime that did not follow the normal processes of the rule of law. Usually the terror-regime was a regime that upset the social-relations of the status-quo. Revolutionary France and the Haitian Revolution are the prime examples. Trotsky used the word 'terror' in this sense in his argument for 'red terror" and both the left and the right used the word terror to designate Stalin's "Great Terror" (see especially Maurice Merleau-Ponty's Humanism and Terror). It is to be noted that some portions of the left took up the idea of 'terror' as an attribute of radicalism, proudly wearing the bloody badge of the Jacobins.
But from the point of view of status quo rhetoric 'revolutionary terror' was a scare term. Yet it was a term that sought to hide reality by way of displacing it upon revolutionary situations. Behind the mask of the law is always a state of terror, the fear of what the ruling class might do if unleashed from the rule of law and allowed to rule with arbitrary force. Similar 'terror states' to that of the regime of 'revolutionary terror' constantly occurred and reoccurred among the dominant states of every social system - and these exceptional states were also meant to stay hidden by the bourgeois displacement of terrorism onto revolutionary regimes. These exceptional states go by various names - states of emergency, suspension of law, states of war, all of which are status quo analogs to the kinds of exceptions to the normal workings of the rule of law, that take place during revolutionary states of terror. The bourgeois state drops its mask completely during periods of fascism and 'death squad republics.' Fascist regimes tend to institute state terror regimes for extended periods of time, either through a system of concentration camps and police informants or through a system of street-gangs and death squads or some combination of the above. Revolutionary state-terror is much more complicated than the administrative institution of states of emergency or the mobilization of Stalinist terror apparatuses or even the extended terror regime of the fascist state. The story of popular revolutionary and reactionary terror and how it is integrated in the rule of law will have be told elsewhere but you may expect that I have some thoughts on this subject.
The word 'terrorism' and terrorist began its transformation in the mid 19th century when the word was used to designate such groups as the Ku Klux Klan. Later anarchists used the term 'terrorist' to designate their own kind of individual terrorism. In the Zionist movement a portion of the revisionists considered themselves terrorists. It is to be noted that in the cases of people who designated themselves 'terrorists', they were all using the term positively to designate a kind of violence that was supposed to be 'popular.' In other words the individual anarchists and the right-wing Zionist revisionists designated themselves terrorists in order to assume the aura of popular revolutionary violence. At the same time colonial powers designated actions of resistance to imperial rule 'terrorism' in the same way that the U.S. would call all resistance to U.S. imperialism in Latin America 'communist.' It served the purpose of the colonial powers to paint resistance to colonialism with the hue of bloody revolutionary violence.
The modern transformation of the notion of "terrorism" and "terrorist" was consolidated in the rhetorical battles that led to the Reagan administration. It was during the lead up to the Reagan administration that the idea of permanent low-intensity warfare against an imaginary terror network became a major doctrine of U.S. propaganda. To designate a group, or an individual acting, against the state as terrorist is of course more useful to the state than the idea that state actors are terrorist when they support violence against civilian populations. Creating a legal status where a person or group is categorized as terrorist is to exclude those people or groups from the niceties of the rule of law.. The historical transformation in the rhetoric of terrorism can thus be traced from the point where the word 'terrorist' designates a state actor that does not apply bourgeois notions of the rule of law to a point where the word 'terrorist' designates people to whom the state actors refuse to apply the 'rule of law'. This is as good of an example of ideological and rhetorical reversal as I think we can find.
The fact that, that this ideological redefinition of terrorism is being codified in law in the way that we see it in Britain and the U.S. is also instructive. It repeats historical patterns that can be seen through-out western history from the time of the first city-states to the rise of the first nation-states. This is a story too long to be told here, but to give just a few examples, in most states where the rule of law existed such rules usually only applied to 'citizens.' In order for a person to be tortured that person first had to be excluded from the rule of law. Usually this meant stripped of citizenship. A similar process would take place when a person was tortured in Venice, Rome or Florence in the 11th through 16th centuries. This is one more significant facet of the designation "enemy combatant", a person that is excluded from all international and domestic rules of law. The very designation of such a category encourages the abrogation of due process and torturous treatment. I do think that it is significant that when the bourgeois notion of the rule of law degenerates this degeneration often repeats older historical patterns that can be found in ancient city states and medieval church law.
Jerry Monaco New York City 27 September 2005

This work is licensed under a Creative Commons License.
-- 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 http://www.livejournal.com/users/jerrymonaco/
Notes, Quotes, Images - From some of my reading and browsing http://www.livejournal.com/community/jerry_quotes/
Sep. 27th, 2005 @ 02:02 pm
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| » Legal-Regimes and Extralegal Violence: A search for patterns in 'real-existing' law: |
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" |
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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| » Some basic questions about legal institutions.... |
What would a critique of legal institutions look like that proceeds from (1) a methodological naturalism, (2) a cognitivist approach to individual perception of the rule of law, and (3) a realist approach to social violence as perceived by the law and as perceived by those "within" and "without" the legal institutions?
By methodological naturalism I mean an approach that assumes that the human species is a part of the natural world and thus human capacities and the institutions that we build can also be looked at as part of the natural world. There is no need to posit or believe that 'language' or anything else is somehow 'non-biological' or supernatural. There is no need to believe that culture is somehow anti-natural, or beyond nature, or supernatural. Methodological naturalism is informed by all the other sciences but not enthrall to them.
By a cognitivist approach I mean that we who study legal institutions should look carefully at the meager evidence available from the cognitive sciences, and similar models, and also be aware of the limitations of those sciences, which are now only taking baby-steps. (I do not rule out such models as game theory, systems theory, etc. as long as we realize the status of the models themselves.) Thus we can show how perceptions and ideological world-views are shaped and contested by individuals and groups.
By a realist approach I mean that we who study legal institutions must realize that we are bound by the limits of what the sciences currently tell us and that it may be unhelpful to stray to far beyond the clues they offer . This means we are also bound within our current limits of knowledge, limits that may extend indefinitely, simply because of the limited capacity of our species' cognitive abilities. Thus we may run into logical paradoxes in our reasoning about such matters as human choice and the limits of any particular human system. The crucial part of a realist view of legal institutions is to understand that sometimes the only way to tell what we know about a legal institution, or any human institution, is to study the institution in historical and societal context, to compare the institution and its structures to other similar institutions in the past, and to ask the question "what does this institution do?" - a variation of Karl Llewellyn's project.
No matter who I read - Duncan Kennedy or Brian Leiter or Peter Goodrich, all of whom I value for different reasons, I am still left wanting.
Jerry Monaco New York City 6 July 2005
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Jul. 7th, 2005 @ 08:22 pm
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| » American "Legal Formalism" and Elite Standardization of the Law |
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
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Jun. 23rd, 2005 @ 09:46 pm
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| » The Policy of Torture II: Who is Torture For? |
The Policy of Torture II: Who is Torture For? The Legal Ideologists of Torture: From the Annals of The Republic of Hypocrisy (This is a continuation of the previous post.)
The United Nations Convention Against Torture and U.S. law both have a blanket prohibition against torturing anyone either within the territorial boundaries of the U.S. or abroad. These laws also prohibit the U.S. government from extraditing non-nationals to third countries where there are “substantial grounds for believing” that they would be tortured. The imprecision of this clause, however, appears to have allowed for a fair amount of latitude, according to lawyers whom I interviewed for this piece. For instance, Martin Lederman, a former lawyer with the Justice Department's Office of Legal Counsel—who did not deal with the cases while he was in office but has studied them since—suggested that what looks at first like a complete prohibition actually is not. The legal standard allows U.S. officials to argue that they didn't know with any certainty that a suspect would be tortured, and so can't be held liable. U.S. officials have in fact often sought what is known as "assurances" from countries to which they have rendered suspects that the suspects would not be tortured. Even if these assurances are just a wink and a nod, they may provide legal cover. Finally, some lawyers believe that the U.S. may be finding protection by never formally taking legal custody of suspects it renders abroad—even if, for instance, the U.S. government transports such suspects. Such details are difficult to find out about, however, because the program is secret. You write about the case of Mamdouh Habib. From The New Yorker Online Torture by Proxy An Interview with Jane Mayer.
In lawschool one of my professors used to argue for the efficacy of torture. He simply believed that torture was sometimes necessary, especially post-9/11, which supposedly has changed everything. The arguments he used were the usual ones, but primarily the slippery slope argument that is often labled 'the bomb in New York' argument.. The typical hypothetical is that there is a terrorist who knows information about a conspiracy to set off a bomb. The bomb is going to go off soon but exactly when or where is not known. It is vital to obtain information quickly and if the terrorist won't cooperate then torture maybe the only recourse. The larger argument is that somehow 'terrorism' is 'different'. The danger is always immanent because the next bomb could go off anywhere at anytime. Thus when a terrorist is captured and you believe with some probability that the prisoner will have information about a terrorist plot then some kind of 'extreme physical pressure' maybe necessary in order to obtain information.
On its own grounds this argument is not convincing or rather a person who uses it has to already be convinced by it in order to use it. This way of arguing requires that one put aside all doubts about whether the hypothetical person can ever be the person who is made thrall to an 'interrogator.' The person who makes this argument has to assume that there is nothing problematic in the 'legal fiction' of his hypothetical terrorist. Who is exactly the torturer in this hypothetical? The torturer is a person who knows everything he needs to know before he begins to torture. He knows that the person before him is a terrorist. He knows that the information that he will receive will be useful. He knows that the best way to get that information is through torture. And finally he knows that what he is doing is a 'special case.' None of this has anything to do with real life torture.
What is torture in real life? Torture is not a technique of interrogation. Those who believe it is are either deluded or are hypocrites. To the hypocrites I have nothing to say - they wish to justify torture and they will find any argument to do so. Those who are deluded by the slippery slope argument have never been in a country or lived in a time where torture was used systematically. And it is only when and where torture is used systematically that is 'useful' at all. Torture is in fact a tool of terror. It is usually used as a tool of official terrorism, though sometimes it is used as a tool of individual terrorism. But for a moment let's accept the premise of the above hypothetical and ask a few other questions that are left out of the usual argument. (In another pos I will come back to the other purposes of torture.)
Why is it that the advocates of torture assume that what our officials call terrorism is different from other forms of organized group violence? Suppose an airforce general is captured in a war and the captors know that the general has information about where or when the next bombing of civilian targets is going to take place. If the British had captured a German luftwaft general should they have tortured him to discover that the Germans are planning to Bomb Coventry? How is this hypothetical any different from the usual 'torture the terrorist' hypothetical? If torture should be used in the torture the terrorist hypothetical then why shouldn't it be used in a 'torture the general hypothetical' when torturing that general may prevent the bombing of a civilian population? Suppose a Mafia capo is captured by the cops and the cops know that the capo's 'family' was planning a series of assassinations against an enemy 'family'. How is this different from the 'torture the terrorist' hypothetical?
These three hypothetical situations are neither logically, nor ethically, distinguishable from each other. But they are different in one way. In both cases harm is done in reciprocal relations of power. The reason that British did not torture German generals during World War II is that they feared that they would set a precedent for torturing their own soldiers. The reason why the police in the U.S. are told not to use torture in the U.S. is because in the long run this violation of due process and this resort to cruelty will lead to abuses in the system as a whole.
The reason why torture can be advocated for those the U.S. designates terrorists in the first hypothetical is that the lawyers who use legalism to evade legality and twist legal definitions in order to legitimate torture do not fear that there are any reciprocal consequences. Reciprocal relations between 'enemies' and harm to the overall system of due process are defined out of existence by the elite U.S. lawyers who seek to 'legitimate' torture. The ideological point of view of the Bush Administration is the basis for this definition, which abolishes 'reciprocal relations' and puts 'terrorists' outside of any system of due process. It is here that the significance of such terms as 'extraordinary rendition' and 'illegal enemy combatant.' The legal ideologists of the Bush Administration intend to invent a modern system where people can be proclaimed 'outlaws.' People who have been thrown out of the system of law can have anything done to them without hope for the protection of the law. In our system of law cops do not torture the Mafia capo because the legal system is structured in a way so that everyone can be judged from within the law. It is here that the perplexity of the lawyer James Gorelick, who was quoted by Jane Meyer, can be understood. "In criminal justice, you either prosecute the suspects or let them go. But if you've treated them in ways that won't allow you to prosecute them you're in this no man's land. What do you do with these people?" It is obvious. For the length of time 'these people' are held in custody they become non-persons as far as the legal system is concerned. This in a sense means that the Government once it embarks upon torture must make sure that the torture is carried out in a way that disables the person so that person who is being tortured will not be a threat if he happens to be released.
In a special forum at Slate.com on the legal memos that advocate torture Slate notes the 'ideological consistency' of the lawyers such as John Yoo and Alberto Gonzales
What's most striking about these torture memos is their ideological consistency. Almost from the outset the principal ideas were set—that the Geneva Conventions might not apply to some prisoners; that torture could be defined narrowly so as to permit egregious conduct as long as the "intent" was not to violate the law; that conduct prohibited under national and international law could be redefined as permissible. The Legal Memos (Note the relevant memos can be read in full at this site. For a detailed legal analysis of the torture memos see the weblog of Michael Froomkin, Professor at the University of Miami School of Law: Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo))
In our legal system there is no legal concept for a person outside of the law. But it is this is precisely the extra-legal legal concept that the right-wing legal ideologists intend to recreate. That is the true significance of former Deputy Assistant Attorney General Yoo's view:
In a recent phone interview, Yoo was soft-spoken and resolute. “Why is it so hard for people to understand that there is a category of behavior not covered by the legal system?” he said. “What were pirates? They weren’t fighting on behalf of any nation. What were slave traders? Historically, there were people so bad that they were not given protection of the laws. There were no specific provisions for their trial, or imprisonment. If you were an illegal combatant, you didn’t deserve the protection of the laws of war.” Yoo cited precedents for his position. “The Lincoln assassins were treated this way, too,” he said. “They were tried in a military court, and executed.” The point, he said, was that the Geneva Conventions’ “simple binary classification of civilian or soldier isn’t accurate.”
Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation’s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn’t have the power to “tie the President’s hands in regard to torture as an interrogation technique.” He continued, “It’s the core of the Commander-in-Chief function. They can’t prevent the President from ordering torture.”
Those who believe Yoo's appalling misstatement of history only do so because they want to come to Yoo's conclusion. It was only in other kinds of legal systems that when pirates were captured on the high seas they were treated as 'outlaws,' in a technical sense. And 'pirates' that were declared outlaws by some nations, say by Spain, were sanctioned by other nations to 'privateer', i.e. by the Queen or King of England. The historical tangle that Yoo is creating is necessitated by because he is unable to make explicit that he is engaged in a recreation of the historical concept of 'outlawry' from within a system that does not recognize such a concept. This can be seen most especially with his point about 'slave traders.' Here he twists the history in a way that turns it on its head. Older legal systems recognized slave traders as merchants if they were trading in legally recognized slaves. It was the slaves themselves who were outside the law. A slave in the hand of a slave trader had no legal rights that any legal system has recognized. The slaves were the ones who suffered civil death not the slave traders. Slave traders were only treated as outlaws when they were trading in 'slaves' that were not recognized as slaves. An example from ancient times is when pirates kidnapped Roman citizens and sold them as slaves. But when a Roman general conquered a town and enslaved its inhabitants, from the point of time that the slaves were in the Roman general's hands to the point of sale that slave was not within any legal system. But it was precisely the abolition of the legal concept of the 'outlaw', the creation of the law of the seas, and the creation of international law against slave trading that was supposed to bring such crimes within the law. In order for Professor Yoo to make his arguments for the recreation of an abominable concept he has to twist the history of that concept.
Essentially the point of view of the legal ideologists of the Bush administration is to designate 'terrorists' as outside of the law in every sense. They are not really inventing anything new though it is new for the modern legal system. They are going back to something very old. The concept of the 'outlaw' in English law or in ancient times the figuration of the person who is 'cursed by god' within the territory of the polis, so that such a person can be killed at will is the legal equivalent. In the end for the Bush legal ideologists of torture this comes down to a judgment of Machiavellian politics. The legal ideologists of torture have made a judgement that those we designate terrorists are unable to respond reciprocally in anyway that will matter to the U.S. Government. They have also come to the conclusion that creating a modern category of 'outlaws' is something they can do without harming the balance of 'rights' for the powerful and therefore since they believe they can do it without hurting themselves they will do it.
So the answer of my question 'Who is torture for?' according to the Bush Adminstration is quite simple: Torture is for anyone that the Administration wishes to throw outside the law. Anyone, that the President wishes to torture and that he can get away with torturing, anyone that the President can get away with throwing outside of the law, can be tortured.
This means that only an active and outraged citizenry can prevent such an abomination.
(To be continued.)
Jerry Monaco New York City 7 June 2005
Shandean Postscripts to Politics, Philosophy & Culture Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco
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Jun. 7th, 2005 @ 10:55 pm
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| » Quotes on Law and Violence: Quotes Collection #2 |
Quotes on Law and Violence: Quotes Collection #2
(Notes on Quotes: I have posted 3 Quotes Notebooks. This is the second. The first quote book is located at 1 Dec. 2004 and contains quotes on "Ideology and Language." The third quote book is at 15 Dec. 2004 and contains quotes relating to "Literary Criticism." My intention is to assume some knowledge of these quotes in my written entries and to refer to these quotes as I go along. The quotes are worth reading in themselves and are probably more enjoyable, in a name dropping way, than anything by this blogger. It is for this reason that I will begin to include quotes of myself in these quote books. It is all simply food for thought.)
James Baldwin Quotes:
JB:-1 - The civilized have created the wretched, quite coldly and deliberately, and do not intend to change the status quo; are responsible for their slaughter and enslavement; rain down bombs on defenseless children whenever and wherever they decide that their "vital interests" are menaced, and think nothing of torturing a man to death: these people are not to be taken seriously when they speak of the "sanctity" of human life, or the "conscience" of the civilized world. - James Baldwin Source: page 489 of COLLECTED ESSAYS (1998), from chapter one of "The Devil Finds Work" (orig. pub. 1976)
Fredrick Douglas Quotes
"Power concedes nothing without demand": Finding the Level of (In)Justice Those who profess to favor freedom, and yet deprecate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. ...Power concedes nothing without a demand. It never did and it never will. ...Find out just what people will submit to, and you have found the exact amount of injustice and wrong which will be imposed upon them; and these will continue until they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress. --Frederick Douglass, 1849
Ugo Mattei Quotes:
Imperial Law, the Rule of Law, against Solidarity Imperial law is produced, in the interest of international capital, by a variety of both public and private institutions, all sharing a gap in legitimacy, sometimes called the "democratic deficit." Imperial law is shaped by a spectacular process of exaggeration, aimed at building consent for the purpose of hegemonic domination. Imperial law subordinates local legal arrangements world-wide, reproducing on the global scale the same phenomenon of legal dualism that thus far has characterized the law of developing countries. Predatory economic globalization is the vehicle, the all-mighty ally, and the beneficiary of imperial law. Ironically, despite its absolute lack of democratic legitimacy, imperial law imposes as a natural necessity, by means of discursive practices branded "democracy and the rule of law," a reactive legal philosophy that outlaws redistribution of wealth based on social solidarity. Ugo Mattei, A Theory Of Imperial Law: A Study On U.S. Hegemony And The Latin Resistance 10 Ind. J. Global Legal Stud. 383, 383-84.
Jerry Monaco Quotes:
Law as the Hope for Justice and Law as the Normalization of Violence JM:1 - In all city-states where the history is known, it was the demos or the plebs - the multitude, the mob - who demanded the codification of customs into written law. The desire of the mob was for laws that would place limits on the arbitrary violence of the rulers and masters. And so they did to a small extent. The demand for written law by the mob was the hope for fairness and justice. Society had become too complex and divided between rich and poor, lords and landless, for the poor and landless to hope justice would result from the personal vengeance of the "furies" or the condescension of the paterfamilias. The institution of the written law did not, and could not, satisfy the hopes of the mob; this is because in all societies yet extent law has been an affirmation of the status quo -- i.e. the normalization of violence through the creation of "legitimate" mechanisms of state violence and the confirmation of "private" mechanisms of class and caste violence. The whole process of how the demand for the rule of law is transformed into the normalization of violence can be seen in its naked form in growing city-states and in times of great historical transition. The focus of an historical study of the relation between the compliments of sovereignty and law, ideology and violence, would best begin here, with that early state-formation, known as the city-state. - From "A Sartrean Essay on Law and Violence in Republican Rome"
Thomas More Quotes:
Public Law as Extortion of the rich from the Poor: What is worse, the rich every day extort a part of their daily allowance from the poor not only by private fraud but by public law ... and finally, by making laws, have palmed it off as justice. Consequently, when I consider and turn over in my mind the state of all commonwealths flourishing anywhere today, so help me God, I can see nothing else than a kind of conspiracy of the rich, who are aiming at their own interests under the name and title of the commonwealth. They invent and devise all ways and means by which, first, they may keep without fear of loss all that they have amassed by evil practices and, secondly, they may then purchase as cheaply as possible and abuse the toil and labour of all the poor. These devices become law as soon as the rich have once decreed their observance in the name of the public--that is, of the poor also! Thomas More, Utopia (1516), reprinted in 4 The Complete Works of St. Thomas More 217, 241 (Edward Surtz & J.H. Hexter eds., 1965).
Thomas More on Enclosure: The Sheep that Eat Men Your sheep ... which are usually so tame and so cheaply fed, begin now, according to report, to be so greedy and wild that they devour human beings themselves and devastate and depopulate fields, houses, and towns.... [I]n order that one insatiable glutton and accursed plague of his native land may join field to field and surround many thousand acres with one fence, tenants are evicted. Some of them, either circumvented by fraud or overwhelmed by violence, are stripped even of their own property, or else, wearied by unjust acts, are driven to sell. By hook or by crook the poor wretches are compelled to leave their homes--men and women, husbands and wives, orphans and widows, parents with little children and a household not rich but numerous, since farming requires many hands.... [I]n wandering from place to place, what remains for them but to steal and be hanged--justly, you may say!--or to wander and beg.... Thus, the unscrupulous greed of a few is ruining the very thing by virtue of which your island was once counted fortunate in the extreme.... Cast out these ruinous plagues. Make laws that the destroyers of farmsteads and country villages should either restore them or hand them over to people who will restore them and who are ready to build. Restrict this right of rich individuals to buy up everything and this licence to exercise a kind of monopoly for themselves." THOMAS MORE, in IV UTOPIA (THE COMPLETE WORKS OF ST. THOMAS MORE) 65-71 (1963).
Bertrand Russell Quotes
A Minimal Basis for the Concept of "Justice" All who are not lunatics are agreed about certain things. That it is better to be alive than dead, better to be adequately fed than starved, better to be free than a slave. Many people desire those things only for themselves and their friends; they are quite content that their enemies should suffer. These people can be refuted by science: Humankind has become so much one family that we cannot insure our own prosperity except by insuring that of everyone else. If you wish to be happy yourself, you must resign yourself to seeing others also happy. - Bertrand Russell statement (1950), in "The science to save us from Science", in GREAT ESSAYS IN SCIENCE edited by Martin Gardner (Prometheus, 1994)
Adam Smith Quotes:
Laws: A Combination of the Rich to Oppress the Poor AS:1 - Laws and government may be considered... as a combination of the rich to oppress the poor, and preserve to themselves the inequality of goods which would otherwise be soon destroyed by the attacks of the poor .... The government and laws ... tell them they must either continue poor or acquire wealth in the same manner as they have done. Lecture by Adam Smith (Feb. 22, 1763), in Lectures on Jurisprudence 207, 208- 09 (R.L. Meek et al. eds., 1978).
Shandean Postscripts to Politics, Philosophy & Culture Hopeful Monsters: Poetry, Fiction, Memories by Jerry Monaco
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Dec. 3rd, 2004 @ 11:59 pm
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