Cosmopolitics, Power, Human Rights and the Crisis of Law

On February 27th, 2008, the Westminster International law and Theory Centre hosted Bill Bowring (Birkbeck College, University of London), Costas Douzinas (Birkbeck) and Vivienne Jabri (Kings College, University of London) to present their thoughts and work, as well as interact with other speakers and participants under the title 'Cosmopolitics, Power, Human Rights and the Crisis of Law'. The dialogue was chaired by Julia Chryssostalis one of the Centre's directors.

A Marxist Critique of International law

On Wednesday, 5th March 2008, China Mieville (Birkbeck College, University of London) was hosted by the Westminster International law and Theory Centre to speak on his new book 'Between Equal Rights: A Marxist Critique of International law' (Haymarket, 2006) and challenge the traditional reproaches of the international legal framework and its enforceability mechanisms whilst seeking to appreciate the value and significance of its role.

Schmitt, Politics and International law

On Wednesday, 12th March 2008, William Rasch (Indiana University Bloomington) and Chantal Mouffe (Centre for the Study of Democracy, University of Westminster) were hosted by the Westminster International Law and Theory Centre to share and expound upon their thoughts and interpretations of the work of Carl Schmitt.

Platonic Drinking Laws

One would be hard pressed to find a modern scholar digging the fields of the philosophy of law who would pin his career on what Plato considered a primary subject of serious study in his last and longest dialogue entitled, The Laws. It is as if out of the patheon of laws that Plato could have considered, the first activity which he chose to consider because it is connnected to all things social, could conceivably be socially regulated and for which only a proper training and education would allow the community to flourish, was drinking. This is the elder Plato without the mouthpiece of Socrates but who nevertheless has his charm, and attempts to persuade his listeners in the most solicitous fashion, how drinking has more benefits than detriments to society if it is part of a wider social programme of proper education aiming towards aimable friendship. At the end of Book II, however, the Athenian (Plato's mouthpiece), abruptly ends the discourse on proper drinking laws by laying down Draconian drinking laws.

"Ath. I should say that if a city seriously means to adopt the practice of drinking under due regulation and with a view to the enforcement of temperance, and in like manner, and on the same principle, will allow of other pleasures, designing to gain the victory over them in this way all of them may be used. But if the State makes drinking an amusement only, and whoever likes may drink whenever he likes, and with whom he likes, and add to this any other indulgences, I shall never agree or allow that this city or this man should practise drinking. I would go further than the Cretans and Lacedaemonians, and am disposed rather to the law of the Carthaginians, that no one while he is on a campaign should be allowed to taste wine at all, but that he should drink water during all that time, and that in the city no slave, male or female, should ever drink wine; and that no magistrates should drink during their year of office, nor should pilots of vessels or judges while on duty taste wine at all, nor any one who is going to hold a consultation about any matter of importance; nor in the daytime at all, unless in consequence of exercise or as medicine; nor again at night, when any one, either man or woman, is minded to get children. There are numberless other cases also in which those who have good sense and good laws ought not to drink wine, so that if what I say is true, no city will need many vineyards. Their husbandry and their way of life in general will follow an appointed order, and their cultivation of the vine will be the most limited and the least common of their employments. And this, Stranger, shall be the crown of my discourse about wine, if you agree. Cle. Excellent: we agree."

The quote above at the end of Book II of The Laws is a sudden and abrupt departure from the Athenian's charming persuasion. And here is the point of the law that does not cede to education as a social solution. The law in the form of legislation, if necessary, because education fails results in a much less happy society. Plato is saying, "Either we find a graceful medium in which proper education leads to peace and aimable relationships or we lay down the law and regulate the hell out of people's lives. Make your choice." This harsh tone is certainly not found in Socrates. Not even in his death is he anything but charming.

The Awesome and Dangerous Ethical Rationalism of Olsen and Toddington

On behalf of myself and Henrik Olsen can I say that both our gratitude and our apologies are due to JoeTanega (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008).

We are grateful not only for Joe’s vigorous contribution to the Olsen and Toddington Seminar ("Why Multiculturalists Should Seek to Abolish the Right to Freedom of Religion" Westminster, April 23rd 2008) but also for the unexpected joy of reading, in portly and greying middle age, that there is someone out there who regards us as “…awesome and dangerous…” Even the comparatively youthful Henrik Olsen appeared to be buoyed by the prospect of this formidable notoriety. Similarly, if rather more sedately, we received in Joe’s blog more compliments than Rationalists and Legal Idealists can expect in a career of review. We’ll take this any time: “Toddington and Olsen have a non-mystical, very rationalistic idea of what constitutes religion which is frankly...egalitarian…” (“Egalitiarianism Riposte”, Blog, Thursday 24th April 2008 para 1).

Apologies are in order because, in the (literal and figurative) heat and noise of the seminar in question, it appears that we were not sufficiently clear about our views and about the identities of our theoretical antecedents. We can only hold ourselves responsible for these confusions and make an attempt here to dispel them. It shouldn’t take long; 90% of Joe’s ‘riposte’ has little or nothing to do with Olsen and Toddington; like most blogs, including this one, and understandably these days when reading, writing and thinking properly is such a task, it’s all about the blogger.

JoeTanega wants to explain at length first, why he is not an egalitarian, and secondly, he wants to argue for a philosophy of ‘darkness’ that holds that the deepest virtue and the most genuine experience of religious belief is to be found in the secrets of the heart. Of the first contention, the objection to Egalitarianism, it would be convenient to say that this is none of our business, but as proponents of Natural and reciprocal rights and duties, we at least have to point out that this position is not only irrational, but, on a more personal note, that it is rather disappointing to be apprised of it. But fortunately (for Joetanega and for other rights bearers), some comfort can be taken from the fact that Joe has no idea what Egalitarianism is. It is, as we all know, the thesis that agents have equal rights; but Joetanega confuses it with the absurd and, as far as we are aware, universally unsubscribed suggestions that:

…it is an ideal born out of the quasi-statistical invention of sameness of equi-probable events…the misbegotten export of a very useful mathematical concept… randomness where each and every thing is the same… purchased for the realm of social control. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-4)

or that,

Egalitarianism is one of those projected… symmetry ideas that says, "Forget all the differences we see in the world, and let us imagine a world where everyone has the same of something or where everyone should be treated the same no matter what the special conditions”. (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 2 lines 1-8).

On the contrary, the liberating and uplifting thing about having a systematic understanding of what rights are, where they come from, and why they are equal, is that, in the infinite flux of context in a world where we experience vast differences of attributes and capacities between persons, one is able to entertain the hope that where such differences militate against the civil ideals of equal and mutual respect, rights might be interpreted, applied, weighed and balanced against each other in the rational attempt to produce artificial equality from natural morality. Legal Idealists, like us, call this process 'law'. It's often very useful; equal rights to freedom and well-being justify the forcible prevention of, say, large violent persons beating up small, timid persons.

As for the theory of ‘darkness’ - Joetanega’s second major digression - it was an enthralling read, and it might well be true, but it has no bearing whatsoever on our suggestion (in Architectures of Justice, Chapter 6,[1] and as advanced in the seminar in question) that, in a society that understands egalitarianism and pluralism rationally – and proprietary brands of ‘Multiculturalism’ do not understand equality and pluralism rationally[2] - hierarchical distinctions and thus opportunities for special pleading between ‘religious’ belief and other ‘less important' ‘partial' philosophies of life should not be perpetuated. All this aside, the entire substance of Joetanega’s blog which requires remedial attention from us is as follows:

[Toddington and Olsen argue ] for an ethical epistemology based on J.S.Mill's premise of freedom. Toddington's version of Mill's freedom is that it is actually "the responsibility of egalitarianism to maximize the scope of personal efficacy." (“Egalitarianism Riposte”, Blog, Thursday 24th April 2008 para 1 lines 2-5)

Neither Henrik nor I have ever had a good word to say about J.S. Mill. What we did say was that we based our epistemology of rights firmly on our modified understanding of the work of Alan Gewirth[3] and that his argument to the Principle of Generic Consistency (PGC) could and should be assimilated to Lon L. Fuller’s conception of ‘Affirmative Freedom’ elaborated in his (Fuller’s) famous essay “Means and Ends” and more clearly in Kenneth Winston's recent discovery and reconstruction of Fuller’s 1958 Edward Douglas White Lectures now published as “The Case Against Freedom”.[4] Gewirth’s epistemology of rights, we suggested, offers foundational ethical support for Fuller’s imaginative, but insufficiently grounded speculations on institutional design that we find in his writings on Eunomics. We said in the seminar (or intended to convey) that Fuller's key insight is that a socially engaged conception of (’affirmative’) freedom (entirely unlike J.S Mills’) leads us to acknowledge that it is the responsibility of legitimate (eunomic) institutional design to aim to maximise the scope of effective agency. So JoeTanega was almost right; but it was very noisy in there.

If one wants to be entirely clear on the points made, we explain them very fully in Chapter 2, 5 and 6 of Architectures of Justice.[5] J.S. Mill does get a mention here, (and maybe he did in the seminar), but only to note that Mill’s theory of (negative) freedom and the historically inexplicable reception and continuing influence of the vacuous tautology that is peddled as the ‘Harm Principle’ were the focus of a sustained and devastating critique[6] that forms the most core concepts of Fuller's (and our contribution to Fuller's) Philosophy of Eunomics.

Check out the book and you will see why Joetangea can cease to live in awe of our dangerous ideas: Not only do we cherish the secrets of the heart, but we also make an egalitarian stand for those who espouse secular and partial philosophies of life as opposed to religious or ‘total’ philosophies of life, and who, in terms of rights protections, are currently regarded as the legal inferiors of religious devotees. This latter anomaly arises because, in straightforward technical or black-letter terms, unless one accepts that the current human rights legislation relating to freedom of expression, association and assembly (let’s take the ECHR articles 10,11, 14 and also note the overlaps with 8 and 6 and with Article 2 of Protocol No.1 of the convention) is capable of subsuming -doing the same job as - the right to freedom of religion (Article 9), then one must make a special case for retaining and prioritising the type of freedom protected by Article 9. This defence generally takes the form of claiming that religious belief is more important than other forms of belief. There are large numbers of people anxious to take this irrational standpoint, but none who seem capable of substantiating it. All religious arguments for this position are, obviously, question-begging – that doesn’t mean false, it just means circular, and thus, logically speaking, uncompelling. The non-religious arguments we examined in Chapter 6 of Architectures – and those advanced by seminar participants - were and are, in our view, similarly unsatisfactory.

Joetanega’s 'darkness’ we might add, is not so much protected by Articles 8, 10,11 etc., it doesn’t even hit the regulatory radar. Arguing, as we do, for a secular and unified right to freedom of religious and cultural expression does not amount to the demand that individuals must cough up their deepest and most private hopes and fears. This is Orwells Room 101: a technological fantasy of complete fascist control. When New Labour invent the machine that can monitor such thoughts, we'll campaign against it shoulder to shoulder with joetanega.

Stuart Toddington and Henrik Olsen April 31st 2008

[1] Olsen, Henrik and Toddington, Stuart Architectures of Justice (Bodmin: Ashgate, 2007)
[2] See Ibid. Chapter 5
[3] Gewirth, Alan Reason and Morality (Chicago: Chicago U.P. 1978)
[4] Fuller, Lon. L “The Case Against Freedom” in Winston, K. [Ed.] The Principles of Social Order (Oxford: Hart Publishing 2001) pp.317
[5] See (fn.1 supra) pp.67-70
[6] See (fn.4 supra)

Too much to ask of the Security Council?

To remind us of the situation in Kenya in December 2007 (which by all means continues today), I felt an irremediable urge to direct some of you to this brief recap by the Human Rights Tribune (April 18, 2008) of a statement made by the UN rapporteur on human rights in the occupied Palestinian Territories, John Dugard, on the ongoing fighting between the IDF and Hamas as he calls for the UN to assume its 'traditional' responsibility as a 'mediator':

http://www.humanrights-geneva.info/Statement-of-UN-rapporteur-on,3023

To borrow from John:
"The United Nations, acting through the Security Council or the Secretary-General, must do its utmost to protect the lives of both Palestinians and Israelis. Surely it is not too much to ask of the Security Council, and if it cannot act, the Secretary-General, to protect human life, even if it means talking to a group of which it may disapprove politically."

We should still hold hope that this "anti-semite" (for his criticism of [Israel's] policies", that is) who will succeed Dugard, will maintain this laudable resistance to the UN's current approach:

http://www.humanrights-geneva.info/A-controversial-expert-for,2947

Let us know about your thoughts.

Egalitarianism Riposte

In a clear but I think wrong-headed rationalistic defense of multi-culturalism, Professor Toddington in a seminar on Rights Discourse at the Univesity of Westminster, School of Law, on April 23rd, 2008, argued for an ethical epistemology based on J.S.Mill's premise of freedom. Toddington's version of Mill's freedom is that it is actually "the responsibility of egalitarianism to maximize the scope of personal efficacy." His partner at the forum, Professor Henrik Olsen (Copenhagen) argued pro the title of the talk, "Why Multiculturalists Should Seek to Abolish the Right to Freedom of Religion". I found their combined arguments so awesome and dangerous that I feel compelled to write not so much a refutation (if that were even possible I would pay for it) but a special pleading for the one right which they argue should be abolished. This note should be considered a philosophical riposte to the concept of egalitarianism.

First, why am I against egalitarianism? I am against egalitarianism because it is an ideal born out of the quasi-statistical invention of sameness of equi-probable events. That is, its lineage comes from the misbegotten export of a very useful mathematical concept (i.e., randomness where each and every thing is the same) purchased for the realm of social control. Egalitarianism is one of those projected particular symmetry ideas that says, "Forget all the differences we see in the world, and let us imagine a world where everyone has the same of something or where everyone should be treated the same no matter what the special conditions." This universalistic essentialism forgets about 23 centuries of criticism that says, "If things are the same as each other, then any choice about one thing over another is just as arbitrary as any another." These arguments are pre-Socratic and hark back to Zeno and Parmenides. In other words, a choice in a egalitarian universe is a vote for chaos--the undifferentiated that defies order. Less abstractly, I am reminded of Evans-Pritchard's classic of Witchcraft, Oracles and Magic among the Azande when the most rational of anthropologists decides to conduct a personal experiment where he goes all the way--that is, he decides one day to organize his daily life according to the belief-behaviour system of the Azande, throwing an hen-bone (?) oracle in the morning and conducting his life according to what the oracle dictates. His conclusion is that he felt that there was no difference at all in his life, and it was perfectly fine to conduct his life according to the oracle. Personal choice (the action) always destroys any egalitarianism (the idea).

Second, egalitarianism not only assumes an ideal distribution of something, but that it is also inexhaustibly so. Consider Toddington's version of Mill's freedom premise above. Let's call this the state of the world at time 1. If we have infinite resources and infinite time, then of course, we have egalitarianism. But if resources are limited and time is limited, then we have...queues! And queues translated into social action results in hierarchies. Queues and hierarchies are everywhere in time 2; they are a way of managing conflicts of limited resources over time. Although both Professors say they address hierarchies in their book, the evidence of social hierarchies should demonstrate how distant the notion of egalitarianism is from justifying the multi-culturalism that "allows" hierarchies. Hierarchies are because resources are short of infinite and because we never have enough time to do our groceries and watch our favourite tele. These choices made for us by forming a queue and establishing a hierarchy are anti-egalitarian.

Third, to abolish the freedom of religion for the right to (suffer?!) multi-culturalism is a bit much to swallow. Toddington and Olsen have a non-mystical very rationalistic idea of what constitutes religion which is frankly...egalitarian, de-personalised and rather, dismissive, with a big value judgment. I suggested in open forum that perhaps we should consider the freedom of religion as the freedom to darkness. That is, instead of the freedom of expression, assembly and so forth. The deepest, superiorly & meekly mystical, and anti-rationalistic freedom is totally private. I can hear Professor Toddington and Olsen retort, "But then this is already covered by the right to privacy..." No, it is not. The freedom of religion is beyond privacy. Again, I can only compare it to a classical reference. Julius Cesar was called to bear witness against his wife for sacrilege--apparently, she had had sex with a guard during a particular religious festival on sacred vestal virgin ground no less, violating one of the sacred laws of Rome, punishable by death. Even her mother testified against her. When it was time for Cesar to give testimony, his response was, "You may not ask Cesar." Legal scholars have interpreted this remark as Cesar's arrogance of being above and beyond the law. However, I like another interpretation of this event and that is, that Cesar understood the heart of what it meant to be a Roman citizen--which in one rule was simply this: "As a Roman citizen, no one has the right to interfere with my body." He took this legal concept to another level. By his words, he jumped a couple thousand years, as if to say, "Not only do you not have the right to interfer with my body, but you also may not interfer with my mind." To abolish the freedom to religion is to provide the state with its ultimate compulsion not only over body and mind, but of spirit.