Law Without Nations [1 ed.] 9780804777223, 9780804771696

Citation preview

Law without Nations

The Amherst Series in Law, Jurisprudence, and Social Thought edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey

Law without Nations Edited by

AUSTIN SARAT Lawrence Douglas Martha Merrill Umphrey

STA N F O R D L AW b o o k s An imprint of Stanford University Press

. Stanford, California

Stanford University Press Stanford, California © 2011 by the Board of Trustees of the Leland Stanford Junior University No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Library of Congress Cataloging-in-Publication Data Law without nations / edited by Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey.       p. cm. — (The Amherst series in law, jurisprudence, and social thought)    Includes bibliographical references and index.    isbn 978-0-8047-7169-6 (cloth : alk. paper)    1.  International and municipal law.  2.  Law and globalization.  3.  Nation-state.  I.  Sarat, Austin.  II.  Douglas, Lawrence.  III.  Umphrey, Martha Merrill.  IV.  Series: Amherst series in law, jurisprudence, and social thought. k302.l39 2011 341—dc22       2010030491 Printed in the United States of America on acid-free, archivalquality paper Typeset at Stanford University Press in 10/14.5 Minion

To Ben (AS) For my students (LD)

Acknowledgments

The work published in this book was first presented during a series of seminars at Amherst College during the 2007–8 academic year. We are grateful to Amherst’s Dean of the Faculty, Greg Call, for his ongoing support. We thank our colleagues David Delaney, Nasser Hussain, and Adam Sitze for their wonderful collegiality and intellectual companionship

Contents

cont r ibu tors Law without Nations: An Introduction l aw rence d oug l as, aust in sar at, and martha mer r il l umphrey

xi 1

Beyond “Beyond the State”: Rethinking Law and Globalization jeremy e lkins

22

State Law without Its State karen knop

66

Law without Nation? The Ongoing Jewish Discussion suzanne l ast stone

101

Western Imperialism and Islamic Law marg aret kohn

138

Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law e l azar bar kan

157

Geertz’s Challenge: Is It Possible to Be a Robust Cultural Pluralist and a Dedicated Political Liberal at the Same Time? r ichard a. shwe der

185

index

233

Contributors

e l azar bar kan is Professor of International and Public Affairs at Columbia University. l aw ren ce d o u g l as is James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College. jeremy e lkins is Professor of Political Science at Bryn Mawr College. karen knop is Professor at the Faculty of Law at the University of Toronto. marg aret kohn is Assistant Professor of Political Science at the University of Florida, Gainesville. aust in sar at is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. r ichard a. shwe der is the William Claude Reavis Distinguished Service Professor of Human Development at the University of Chicago. su za n n e l ast ston e is Professor of Law at Cardozo School of Law and Director of its Program in Jewish Law and Interdisciplinary Studies. martha mer r il l umphrey is Professor of Law, Jurisprudence, and Social Thought at Amherst College.

Law without Nations: An Introduction l aw rence d oug l as aust in sar at martha mer r il l umphrey

To speak about law without nations is to imagine the nightmarish possibility and the utopian. The possibility of law in the absence of a nation would seem to empty law of its animating spirit, to sever it from its source and meaning. At the same time, law divorced from nations would seem to clear the ground for a cosmopolitan legality free of the prejudices or idiosyncrasies of distinctive national traditions and universalist in its accents. These dystopian and utopian imaginings inspire and invigorate thinking about law without nations.

Law without Nation-States: Transitional Developments The term “nation” has vexed political thinkers from Herder and Fichte to Benedict Anderson and Homi Bhabha. In his famous lecture “Qu-est-ce qu’une nation?” delivered in Sorbonne on March , , Ernst Renan canvassed all the standard definitions of “nation” and found them all wanting.1 The “exclusive concern with language”; the “excessive preoccupation with race”; the fixation on “theological dogma”; the “arbitrary” and “fatal” elevation of geography to “a kind of limiting a priori”—none of these, Renan insists, provide an adequate definition of “nation,” as they all suffer from the problem of over- or underexclusivity. Not all legal and political thinkers, however, have been equally vexed by the problem of definition. Today there is a tendency to treat the term “nation” as no more than shorthand for the term “nation-state,” the form of political organization that arose in Europe in the wake of the Peace of Westphalia. This political form, with its familiar sovereign powers, centralized administrative systems, and monopoly of legitimate force, now serves as the principal vehicle for the



Douglas, SARAT, and Umphrey

organization of political life for most of the world’s inhabitants.2 From this perspective, questions such as whether Belgium, with its French and Flemish halves, actually should be considered a state with two nations (a question we can ask of Canada, too) are largely irrelevant. The term “nation-state” serves, then, not to delimit or restrict the designation to only those states that have certain “bonus” features, such as a common linguistic or cultural heritage; rather, the insertion of “nation” serves merely to denote a level of analysis directing attention to the national sovereign itself. So understood, it matters not whether a nation arose organically from a long historical tradition or was artificially carved up by imperial mandate; it matters not whether it is ethnically and linguistically homogenous or is multicultural and multilingual; what matters is that it exercises sovereign control over a defined geographic area and a specifiable population. If we follow this lead, and treat the “nation” as shorthand for “nation-state,” then the phrase “law without nations” has an oxymoronic ring—at least from the perspective of legal positivism. Here Hobbes will be our guide. In The Leviathan, the brilliant theory of the state written against the backdrop of the English Civil War, Hobbes posited a state that is created artificially through the weak force of formal contract between warring individuals.3 It is hard to exaggerate the radical quality of this vision, even if we accept, as Hobbes reminds us, that his account is meant to be heuristic and analytic, not historical. The idea alone that communities are bound together not by religion or extended family or shared traditions or common industry, but by a contract designed to staunch the mutual infliction of violence is indeed bleak. Durkheim observed that contract can never fully bootstrap its own efficacy—a regime of contracts always presupposes some precontractual social solidarity to make the system work.4 Hobbes’s scheme, however, does not presuppose any precontractual social glue—no nation precedes the creation of the state. For Hobbes, then, the social contract is binding not because it is a promissory instrument that appeals to pre-existing customs and norms. To the contrary, a contract predicated on mere trust is for Hobbes void. Contracts are binding only when “there be a common Power set over them both, with right and force sufficient to compel performance.”5 For all its bleak simplicity, this account, as others have noted, appears to raise intractable problems.6 The forging of the social contract is a necessary step toward exiting the state of nature—the war of all against all—and creating

Law without Nations: An Introduction



the Leviathan, and yet in the absence of the state, the contract is void, without prescriptive force. Thus the social contract, if it is to be binding, presupposes the very state that it calls into being. Whether Hobbes provides a way out of this dilemma is not our central concern—though his insistence that the Leviathan presupposes no social solidarity will be of relevance to our discussion of the relationship between state and nation. Of more direct relevance is the strong relation that Hobbes posits between law and the state.7 The making of law is not simply one of the functions of the state; the state is the precondition of law. Without the state, there can be no law in the Hobbesian scheme: “Where there is no common Power, there is no Law.”8 To speak of any internal limits on the law-making power of the state, thus, makes no sense in Hobbes’s world; the sovereign, while called into being by the social contract, cannot, by definition, be bound by its terms. Inasmuch as the sovereign’s power overweans and makes all other contracts and laws enforceable, he himself cannot be said to be constrained by any law or contract; his power is absolute. Likewise, it is meaningless to speak of any external limits on the sovereign’s law-making power. For Hobbes, there can be no global power or body of law superior to the sovereign; if such a power existed, it would be sovereign. Sovereignty is thus absolute and indivisible. Nations can, of course, enter into treaties, but these lack a truly legal character in the absence of a power capable of enforcing their terms. They are like the promissory agreements entered into in the state of nature: void. In the absence of an overarching sovereign, each state finds itself in a state of nature vis-à-vis all others. From this perspective, it is easy to see why the phrase “law without nations” would leave a strict Hobbesian baffled. If law is exclusively the creation of the state, then it is impossible to imagine law qua law existing in the state’s absence. We can imagine principles of prudence, maxims of reason, notions of justice existing in the absence of states, but not law as an enforceable code of conduct designed to solve social disputes. And just as law is the creation of the state and there can be no law without the state, the strict positivist must insist—as did influential latter-day exponents such as H. L. A. Hart and Hans Kelsen—that the state’s power to make laws is plenary.9 And yet the term “law without nations” can be understood in a very different sense. That is, one might continue to treat “nations” as convenient shorthand for “nation-states,” yet still parse the phrase in a manner altogether different



Douglas, SARAT, and Umphrey

from Hobbes. We can trace this rival tradition back to another sixteenth-century thinker, Hugo Grotius. While Grotius, like Hobbes, was a strong defender of sovereign prerogative, he did not consider “international law” a contradiction in terms. Law, in his lexicon, also included long-agreed-upon practices of civilization—even in the absence of law-making bodies capable of specifying their exact content, adjudicatory instruments capable of resolving the disputes they might give rise to, and executive institutions with the power to enforce sanctions upon transgressors.10 Although Grotius never fully imagined the development of mechanisms of world governance, certainly the past sixty years have witnessed a remarkable development in international law. Perhaps the most spectacular development has taken place in the area of criminal law. It is no exaggeration to claim that our very understanding of what the law is and what it can do has been radically and irrevocably changed as a result of its contact with atrocity—first in the form of Nazi crimes, and more recently in the shape of atrocities in the Balkans and genocide in Rwanda. At the most basic level, this has led to a paradigm shift in our understanding of sovereignty and its prerogatives. The revelations of Nazi atrocities led Karl Jaspers to frame the term Verbrecherstaat, the criminal state, a notion meant to name and denote a phenomenon that lay beyond the ken of the standard model of liberal positivist jurisprudence.11 Jaspers formulation demanded that the state be seen not as the defender of order, the classic Hobbesian image, but as the very agent of criminality. The international tribunal at Nuremberg formalized this recognition, based as it was on the notion that international law authorized the puncturing of the shield of sovereignty that traditionally had insulated heads of state from international legal scrutiny.12 Today we accept without argument the idea that sovereign state actors responsible for atrocities must answer for their conduct in courts of criminal law—be they domestic, international, or of a hybrid character. But we run the risk of forgetting how deeply radical this idea was before the Nuremberg trial of the major Nazi war criminals.13 While the Nuremberg precedent lay moribund for much of the Cold War, it has experienced a remarkable revival in recent years. First, we find the creation of various international courts—such as the ad hoc Yugoslavia and Rwandan tribunals, as well as the permanent International Criminal Court—capable of trying heads of states for violations of

Law without Nations: An Introduction



international law. Notwithstanding the mistakes committed by the prosecution in the Milosevic trial and the disappointment occasioned by the defendant’s untimely death, the trial itself represented something remarkable: the first time in human history that a former head of state answered for his conduct before an international court.14 Second, and relatedly, we witness the development of a rich jurisprudence of three international crimes—crimes against humanity, genocide, and war crimes—that have largely severed any connection to the core meaning of the concept of “international.”15 Indeed, these crimes can better be described as transcending the nation-state, or as “supranational,” “cosmopolitan,” or “universal,” as their norms are binding and obligatory upon all nations—even those that are not signatories to the Geneva Convention or the Genocide Convention. The idea of law without nations conjures these remarkable developments in international criminal law but is not limited to them. Although pictures of Goering in the stand at Nuremberg or of Milosevic in The Hague may provide the most arresting images of law without nations—indeed, of law standing above and against the nation-state—equally remarkable developments have occurred on the more prosaic level of public and private international law. In certain respects, the European Union stands now as a semiautonomous supersovereign; the decisions and judgments of its various institutions, such as the European Court of Justice, the European Commission, and the Council of Ministers, are binding upon domestic national courts of its member states.16 International trade organizations and institutions likewise enjoy unusual authority vis-àvis nation-states; the World Trade Organization is perhaps the best known for its power to resolve disagreements between sovereign states through binding dispute resolution.17 Although these judgments may lack the full panoply of coercive sanctions available to a state enforcing a judgment against a citizen, it would be querulous to deny that these judgments have a distinctly legal character. Clearly, they too represent the development of bodies of effective law that stand over and above the nation-state.18 The normative implications of these developments remain, of course, a matter of controversy. Certainly there are those, particularly within the human rights community, that see the development of a viable body of international criminal law as an entirely salutary, if long overdue, phenomenon.19 International criminal law promises, in this view, to put an end to the kind of impunity



Douglas, SARAT, and Umphrey

that reprobate state actors have all too long enjoyed. Others see the creation of institutions such as the International Criminal Court (ICC) in less sanguine terms.20 It is well known that former president Clinton signed on to the ICC only in the last days of his administration, and then with many reservations; the Bush administration promptly unsigned the treaty and worked with determination to undermine the fledgling court just as it was opening shop.21 Critics of the ICC have argued, not without reason, that international tribunals can be used to settle political scores, a matter of greater potential concern to the United States than, say, to Finland. Critics of international law also point to a “democracy deficit”—namely, the idea that international norms are often framed by administrative agencies or organizations that lack democratic forms of participatory governance.22 To permit such norms to trump domestic national law is to permit nondemocratic practices to trump democratic ones. For some critics, the mere quoting of international sources in the decisions of the U.S. Supreme Court represents an unsupportable intrusion upon U.S. sovereignty and upon our right to steer our constitutional destiny free of external interference.23 It is not our purpose, or that of our contributors, to take sides in this controversy. One point, of an analytic character, needs, however, to be emphasized. Much of the literature on the clash between domestic-national and international law—regardless of the normative position taken—shares a common feature: it tends to view the struggle in zero-sum terms. Gains in international law come at the expense of national sovereignty; the strengthening of national sovereignty, by contrast, represents a weakening of international norms and institutions.24 This view, it bears repeating, has been a stable feature of the ongoing debate, accepted by the champions of international law on the one hand, and the nation-state on the other. Yet as we shall see, it is precisely this assumption that is interrogated by the essays in the present volume.

Bringing the Nation (das Volk) Back In There is, however, another way to conceptualize the meaning of “law without nations.” This requires taking the term “nation” as something other than a shorthand for “nation-state.” This returns us to our point of departure: the effort of theorists to offer a satisfactory definition of the “nation” without reducing it to a synonym for a sovereign state.

Law without Nations: An Introduction



To provide but one example, consider the case of Germany. Over the entrance of the Reichstag, once again the seat of the German parliament, stands the famous dedication in bronze letters: Dem Deutschen Volke. “To the German People.” The eager tourist who dutifully queues up to tour the building burdened with history soon encounters a fresh dedication inscribed in the Reichstag’s main courtyard: Der Bevölkerung. “To the Population.” Compared with “To the German People,” “To the Population” sounds flat, drearily actuarial, better placed before the entrance to a bureau of the census than the national legislature. The original inscription was added to the Reichstag in  with the grudging support of Kaiser Wilhelm II to express support for the principle of parliamentary democracy, if not supremacy.25 The bronze lettering was forged by S. A. Lövy, a successful bronze foundry owned by a Jewish family. The Lövy family, at least in part, later perished in Nazi death camps. To call this ironic captures only one dimension of the tragedy that engulfed the German nation and its Jewish population. Certainly the term “To the German People” had a more innocuous ring in  than it would twenty years later in the wake of the Nuremberg laws that stripped German Jews of their full citizenship and paved the way for their exclusion from German society, their deportation, and their ultimate extermination.26 But even at the time of its original forging, the term Volk meant something more than can be denoted with the word “people,” a mere amalgam of persons. Indeed, to translate das Volk as “people” is itself unsatisfactory, as it is also the German term for “nation.” As such, das Volk denotes a people bound by something deeper than mere political ties; it speaks of a nation conjoined by tradition, memory, and history. Das Volk is a romantic ideal, a mythic body. Historically das Volk was never coterminous with citizenship in the German state. Das Volk was at once a term of exclusion, barring membership even to those born and raised within Germany’s territorial limits, and irredentist, sweeping in ethnic Germans far beyond the state’s borders. Americans have long been familiar, if at times begrudgingly, with the concept of a hyphenated identity. It is meaningful to speak of a Japanese-American, a Jewish-American, an African-American. For most of German history, that was not the case—the term “German Jew” was oxymoronic, contradictory, on the order of “whitish black” or “largely small.” One could be a German or a Jew, but not both; the one



Douglas, SARAT, and Umphrey

excluded the other.27 This idea of nationhood found early expression in Fichte’s famous Reden an die deutsche Nation (Addresses to the German Nation), the lectures that the philosopher delivered to the Berlin Academy over the course of the winter of –.28 For Fichte, nationhood was defined in terms of the genius of language and the chauvinistic prerogatives of blood.29 This definition, in turn, was later challenged by Ernst Renan, who eschewed an ethnic definition of nationhood in favor of a “spiritual principle.” To be part of a nation, Renan insisted, was to share “a rich legacy of memories” and the desire “to perpetuate the value of that heritage that one has received in undivided form.”30 Nationhood, for Renan, was defined in terms of a “large-scale solidarity,” constituted by “having suffered, enjoyed, and hoped together.”31 Even this definition may sound odd to contemporary ears, but in its time it represented a marked advance over the aggressively ethnic definition of Fichte. Renan’s “spiritual” idea of nationhood also importantly anticipated and influenced Benedict Anderson’s influential view of the nation as “an imagined community”—that is, a community whose members “will never know most of their fellow members, meet them, or even hear of them, yet in the minds of each lives the image of their communion.”32 However much these definitions of the nation may differ, they share an important common feature: they all express a similar normative understanding of the relationship between the nation and the state, and by extension, its laws. Today the term “nation-state” is largely a pleonasm. For classic theorists of the nation, however, the nation-state was meant as a term of restriction. The state was to serve as the vehicle of a specific nation, and each nation aspired to its own discrete state. To quote Anderson, “[T]he gauge and emblem of this freedom [of the nation] is the sovereign state.”33 Germany remains a prime example of a state forged in the latter decades of the nineteenth century in the name of a nation. France remains a more problematic example, as many historians insist that the French nation was in fact an invention of the state, not vice versa.34 (Often mentioned in this connection is the fact that only about half the population of France could speak French at the time of the revolution.) And then there are more problematic examples still: Belgium—a state with two nations; ditto for Canada. But if we bracket the historical question of how specific national entities are to be characterized or classified, and focus our attention on the theoretical

Law without Nations: An Introduction



model of nationhood, the contrast to Hobbesian statism could not be sharper. Hobbes, as we recall, understood the state as an entity created through thin bonds of contract among private individuals united by nothing more than their mutual distrust of each other. The state, in this view, was to serve no higher purpose than to secure order and peace over a specific territory; it was to protect the subjects of the state from each other. For Fichte and Renan, notwithstanding their disagreements, the state was to serve the noble purposes of the nation. Far from simply an instrument to serve the self-interest of its subjects, the state was understood as a vehicle for the pursuit and advancement of common national projects. Individual life was to gain meaning and purpose by attaching itself to such collective goals. Held together by nothing more than the weak ties of promissory contract—ties unenforceable absent the threat of sanction from the state—the Hobbesian state was nothing more than a thing of convenience and force. The nation-state of Fichte and Renan, by contrast, was bound by precontractual forces of solidarity forged of common language, heritage, and ambitions. The classic nationalist theories of the nation-state also defended a particular understanding of law. In contrast to the Hobbesian model, law was meant to do something more than simply keep violence between the subjects of a state in check. Law, as Roger Cotterrell has put it, was meant to embody and express “matters of tradition, affect, belief and ultimate values.”35 This vision found perhaps its purest expression in Montesquieu’s influential text The Spirit of Laws, in which the great French legal thinker posited a particular quality, temper, and spirit to each system of national law.36 Far from the cosmopolitan ideal discussed earlier, and far from the liberal idea that we will presently consider in greater detail, the nation-state aspired to national law: a legal system whose institutions, norms, and procedures would express and reflect the particular genius, values, and commitments of a particular Volk or people. From this perspective, the term “law without nations” expresses either something impossible—law must reflect national character—or something dystopic: the kind of artificial or inorganic legality thrust on a people from outside. That this latter vision can have its own profoundly dystopic quality should, of course, be noted; we need but recall Carl Schmitt’s lethal attacks on the jurisprudence and legal norms of the German Weimar Republic. Weimar law, for Schmitt, reflected the legal thinking of internationalists—namely, Jews—and as such failed to express

10

Douglas, SARAT, and Umphrey

the values and principles of the German nation. Schmitt insisted that Jewish jurists embraced a quintessentially Hobbesian understanding of law, one alien to the German nation.37

Law without Nations: The Liberal View Let us return for a moment to the second, more recent, dedication that the casual tourist encounters in the Reichstag. Der Bevölkerung—“To the Population.” Compared with das Volk, die Bevölkerung is a term without myth and romance. It speaks of an aggregate of persons, an accumulation of demographic groups. “To the population”—the state no longer declares its subservience to the Volk; it now serves all within its territorial bounds—citizens and noncitizens alike; Germans and non-Germans; all possible groups. In its flatness and straightforwardness, the population is a quintessential term of liberalism. So understood, the phrase “law without nations” expresses an altogether different notion, one that is quintessentially post-Hobbesian and liberal. In this vision, the law is not the expression or the reflection of any particular national spirit; nor is it the tool for the furtherance of any particular national agenda, project, or vision of the good. The jurisprudence of nationalism insists on a unity of law and morality: the law is to be the expression of the moral commitments and principles of the people. The jurisprudence of liberalism insists on no such correspondence. In liberalism, we encounter the famous separation thesis.38 Law may express the content of morality, but it need not do so to be law. There is, in the liberal lexicon, no necessary or formal connection between law and morality. As odd as the separation thesis may appear—and it has been attacked by legal thinkers from Carl Schmitt and Karl Larenz to Stanley Fish and Catherine MacKinnon—it remains one of the great signposts and achievements of liberal legality. In this system, law intervenes to promote no particular vision of the Good; it is not a tool of moral perfectionism and teleological nationhood. Rather, the law does no more than establish and enforce basic principles of justice that permit each individual or group to pursue his, her, or its vision of the good.39 In this regard, liberal legality builds on the tradition of Hobbes, not of Fichte and Renan, though it drops the Hobbesian accent on absolute statism. Hobbes understood the state as an instrument for the suppression of private violence;

Law without Nations: An Introduction

11

liberal jurisprudence, in Bentham’s and Mill’s canonical treatments, turns this into the famous “harm principle”—the idea that the law’s tolerance of exercises of all forms of personal liberty is defined in terms of the rights of another to be free from personal harm.40 The hallmarks of liberal legality—the commitment to tolerance, the harm principle, and the discourse of rights—share a breathtaking abstractness. They are, to repeat, designed to maximize individual liberty from interference, not to rally the Volk toward any collective enterprise or goal. Indeed, from the liberal perspective, the idea of using the law as the tool to subtend individual freedom toward collective goals is precisely what liberal legality is designed to protect against.41 Finally, then, liberal legality does not presuppose any preexisting social solidarity. To the contrary, law itself creates the social solidarity that keeps the system of liberal legality in operation. Such social solidarity is based on precepts of tolerance and, in the Rawlsian iteration of liberalism, a willingness to agree on principles of social justice arrived at through a recursive thought experiment.42 Needless to say, from the perspective of normative theories of nationhood, this is a particular thin version of social solidarity, and theorists from the left and right have questioned whether social solidarity so predicated is sufficiently robust to hold liberal legality together.43 What remains important for present purposes is the idea that “law without nations” can be parsed as expressing a liberal ideal. Here law is free to promote its radically abstract agenda, an agenda that need not advance on the level of any specific nation-state; Kant remains most famously associated with this universalist aspects of liberal thought.44 From the perspective of liberal legality, then, the term “nation” can happily fall out of the “nation-state” equation. The nation is a vestige, the entity that originally called the state into creation. But liberal legality contemplates the triumph of the state over the nation. Law itself comes to constitute the glue that holds the state together.

Overview of the Book We have identified the concept of “law without nations” with three distinct vectors of inquiry. In the first, the “nation” was seen as but a shorthand for the concept of the “nation-state”; here “law without nations” asked us to imagine the consequences of the rise of international law and global legality for the

12

Douglas, SARAT, and Umphrey

system of law organized around national frontiers and state institutions. This is the line of inquiry pursued in the first two chapters in this book. Both Jeremy Elkins and Karen Knop use the term “nation” and “state” interchangeably. For both, the word “nation-state” denotes something capacious, elastic, and varied. Neither of these scholars is in the first instance concerned with such questions as whether Canada or Belgium can be said to constitute a “nation-state” narrowly conceived. Instead, they are interested in exploring the jurisprudential relation of the nation-state to an increasingly globalized world. And both are interested in challenging what we earlier identified as a key assumption of much of the scholarship in this field—namely, that systems of domestic-national and international legality stand in a zero-sum relationship to each other. In “Beyond ‘Beyond the State’: Rethinking Law and Globalization,” Jeremy Elkins considers the legal relationship between the nation-state and a globalized world in two areas classically associated with the core performance of sovereign prerogatives: the punishment of crime and the waging of war. Nuremberg, as we recall, turned the waging of aggressive war into a crime and also pioneered the practice of empowering international courts to sanction violations of global norms. For Elkins this development cannot simply be understood as a shift in jurisprudential efficacy from the nation-state to the international court. On the contrary, Elkins insists that the rise of international criminal law and global norms has resulted in the enlargement and increased fluidity of state power. We can see this most directly, Elkins insists, in the application of principles such as universal jurisdiction, which authorizes a domestic-national court anywhere on the planet to try individuals accused of violating basic global norms, such as the proscription against genocide.45 In the Pinochet affair, for example, Spain claimed the authority to try the former Chilean head of state for crimes committed against fellow Chileans. Spanish jurists went so far as to argue that amnesty agreements that insulated Pinochet from Chilean prosecution were not binding on Spanish courts.46 This remarkable episode stands as a clear example of the projection of a paradigmatically internal legal power—the mounting of a criminal prosecution—across national borders into the world of foreign affairs.47 Far from eclipsing the power of the nation-state, practices such as universal jurisdiction contemplate complex processes of interpenetration of one national legal system by another. Elkins finds his second example in the Bush administration’s “war on terror.”

Law without Nations: An Introduction

13

Here we find the obverse process at work. If the Pinochet affair represented the projection of a traditionally internal juridical power into external relations, the “war on terror” represents the introversion of a classically external sovereign act—the waging of war—into domestic practice. In developing this argument, Elkins avoids making the simplistic and misleading point that techniques of waging war have simply been turned against a domestic population. Rather, his point is subtler. Just as Nuremberg represented a critical moment in the juridification of war, the “war on terror” must be understood as building on this precedent, not dismantling it. In reinterpreting the meaning of the Torture statute, in pioneering categories such as “alien unlawful enemy combatant,” in explicating the procedure to control trials before military commissions, the Bush administration showed that the juridification of war, far from placing brakes and limits upon the power of the nation-state, could in fact be enlisted to expand national, and especially executive, powers. In “State Law without Its State,” Karen Knop reaches a similar conclusion while examining very different material. Knop’s focus is not on international law or norms per se. Rather, she is interested in the phenomenon of “disembedded state law”—that is, law that, once freed from its origins and moorings in a system of domestic-national legality, comes to experience an afterlife as foreign law. This phenomenon is perhaps most controversially associated with “comparative constitutionalism,” or, in Knop’s parlance, “transjudicialism”—the practice of, say, the U.S. Supreme Court citing the decisions of foreign domestic national courts in matters that don’t directly implicate U.S. interests48—but the phenomenon is not limited to such practices. As Knop points out, we encounter disembedded state law less visibly but far more frequently in the fields of transnational public law and private international law. The latter field, also typically referred to as “conflict of laws,” is particularly intriguing, as it requires a domestic national court not simply to interpret foreign law but also to apply and enforce it. This, Knop reminds us, is not simply an example of legal hybridity at work, in which legal norms from different systems come to meld. Instead, it is an example of a complex process of “lateral thinking” in which foreign courts are required to offer authoritative readings of the domestic law of a separate nation. In conjuring a world defined increasingly in terms of a circulation and proliferation of legal meaning, Knop, like Elkins, reminds us of the insufficiency

14

Douglas, SARAT, and Umphrey

of the zero-sum model. International law has not simply brought about a shift in locus of legality from nation-states toward international institutions. On the contrary, the rise of international legality has conferred new powers upon domestic national courts, while also creating novel legal synergies and new centers of legal authority. Both Elkins and Knop suggest that the rise of global legality, far from eroding the legal authority of domestic courts and the nation-state, has in fact contributed to the expansion of the state’s legal domain and powers, making them more fluid and flexible. Their chapters offer a complex vision of legal change and contestation, of new powers but also of more fluid and permeable conceptual borders. An appreciation of the insufficiencies of the zero-sum model and of the fluidity of legal domains also informs the chapters by Suzanne Last Stone and Margaret Kohn. The contributions of Stone and Cohen also address our second vector of inquiry—the classic normative theories of the nation. As we recall, these theories understood the nation as a foundational motive for the creation of states, but capable of existing prior to and independent from them. This problematic animates Stone’s discussion, “Law without Nation? The Ongoing Jewish Discussion.” Stone offers a conceptual history of Halakha, the elaborate body of Jewish law adumbrated in the wake of the destruction of the Second Temple. As Stone points out, Halakha was specifically created in order to sustain a coherent notion of Jewish nationhood in the absence of the state. In Stone’s words, Halakha created a “portable political entity”: it defined and sustained a unified meaning of Jewishness among far-flung communities of the Diaspora. As such, Halakha presents a fascinating challenge to the traditional theories of nation and law. In the case of thinkers as diverse as Fichte, Renan, and Montesquieu, law reflected the spirit and values of the nation; in the case of Judaism of the Diaspora, however, law came to define the nation. This law, however, had the contradictory qualities of defining a specific nation—the Jews—in terms of its supranational and cosmopolitan character. The creation of the state of Israel, far from becoming the simple vehicle of Jewish nationhood, posed unusual challenges to the developed system of Halakha, a challenge that inverts not simply the views of thinkers like Renan but also the problematic addressed by our first two contributors. Elkins and Knop dealt with the problem of global and international law allegedly superseding the nation-state; Stone asks what

Law without Nations: An Introduction

15

happens to a body of national/cosmopolitan law (Halakha) that now suddenly must accommodate the belated arrival of the state. How does one shoehorn cosmopolitan—albeit national—legal norms into the domestic legal system of a newly founded nation-state? Stone makes clear that this question resists simple answers: within Israel, Halakha has been deployed by various groups in support of very different legal visions. For some, Halakha must now be understood as constituting a system of ethics within civil society that must defer to state law. Others interpret Halakha as a universal law that trumps and limits domestic law-making. Here we encounter, then, yet another challenge to the zero-sum model. In this case, cosmopolitan Jewish law, far from shifting power away from a domestic legal system, belatedly helps to constitute it. Finally, Stone’s chapter problematizes normative theories of nationalism, which hold that only those nations that achieve statehood are capable of expressing their particular values and commitments through the law. In the case of Halakha, law sustained the nation in the absence of a state; the advent of statehood, far from solving the crisis of legality, in fact, creates it, as a surfeit of legality competes to define a coherent system of state law. Magaret Kohn’s chapter, “Western Imperialism and Islamic Law,” complements Stone’s contribution. Like Stone, Kohn provides a historical narrative of the development of an influential strand of religious law. According to Kohn, sharia, or Islamic law, had a long tradition of tolerating the secular rule of empires, principalities, and nation-states. During long periods, Islamic law functioned in a manner similar to Halakhic practice in Israel—that is, as a system of ethics controlling civil society. Only recently, Kohn observes, with the rise of radical Islam, do we find sharia transforming itself into a supranational system of legality. As such, sharia has turned into an oppositional force, presenting itself as an alternative to the Western nation-state, a model of statehood condemned with Islam as a product of Western imperialism; and as a challenge to the plural-liberal state, which remains predicated on the suppression of strong nationalist ideologies. The rise of radical Islam thus presents its own important and conceptually rich challenge to the zero-sum model, one that offers an interesting counterpoint to Stone’s study. In the case of Halakha, cosmopolitan legality must accommodate the belated arrival of the state; in the case of sharia, supranational legality comes to percolate up out of the void of failing states, constituting a

16

Douglas, SARAT, and Umphrey

new vision of nationhood that is not state-centric but instead is based on a pan-national religious vision. The story of sharia thus reverses the chronology of Halakha. The latter must tailor cosmopolitanism to a late-arriving state; the former develops out of the system of extant states in the throes of deterioration. Yet in the case of both Halakha and sharia, we find law responsible for the creation of a powerful sense of nationhood. In both cases, it is not the state that is the engine of law-making, but the law that is the engine of nationhood without states. The final chapters in this book, by Elazar Barkan and by Richard Shweder, both continue and extend this analysis in a manner that implicates our third vector of inquiry: states without nations. Above we associated this understanding with key tenets of legal liberalism and asked after the form of legality that such a system contemplated and perhaps necessitated. In “Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law,” Elazar Barkan draws attention to what at first blush appears to be a deeply anomalous phenomenon from the perspective of liberal law. Like the other contributors in our collection, Barkan is interested in examining the impact of the rise of international legality and cosmopolitan norms upon practices of state law. Like the other chapters in this volume, his discussion challenges the received wisdom of the zero-sum model. Barkan’s conclusion, however, is more radical than that of our other contributors. In studying the rise of norms of international humanitarianism in the past century, Barkan strikingly concludes that human rights law has done more than merely fail to place any meaningful brakes on practices such as ethnic cleansing and the forcible transfer of populations; it has, he insists, facilitated such practices. Not only has the growth of international law not eroded the strength of the nation-state and its sovereign prerogatives; to the contrary, it has provided the legal cover for nation-states to engage in the forcible transfer of vast population groups. International law, he insists, has been fully compatible with, and has assisted in, the project of ethnic cleansing. On its face, this claim appears demonstrably false, contradicted by the tireless work of the international tribunals for Yugoslavia and Rwanda to punish the crimes of ethnic cleansing.49 Yet Barkan insists that these examples are misleading. While it is true that international law in the wake of Nuremberg condemns such practices when accomplished by armed conflict, the same body

Law without Nations: An Introduction

17

of law remains peculiarly quiet, indeed permissive, when population transfers proceed in peacetime. In developing this argument, Barkan challenges a standard picture of liberal legality. Here he argues that the nation-state has best flourished under conditions of ethnic homogenization. Liberal theory, as we recall, conceives of the state not as an instrument of the nation, das Volk, but rather as an instrument of justice designed to protect the rights of the members of its plural groups. The solidarity that sustains the liberal state is constituted not by the thick ties of ethnicity but by the weak forces of law and the principles of tolerance that it both presupposes and enforces. Yet whatever the theoretical attractions of this model, Barkan indicates that liberal states have consistently reinvigorated themselves through practices of displacement and exclusion. This, then, brings us to the final chapter, Richard Shweder’s “Geertz’s Challenge: Robust Cultural Pluralism in a Liberal Multinational Empire.” Like our other contributors, Shweder explores the consequences of globalization on the nation-state. And like the others, he is concerned with demonstrating the insufficiencies of the zero-sum model. Yet, in contrast to others, Shweder’s project is more explicitly predictive, as he tries to use history as a tool for hazarding what he identifies as “three auguries of globalization.” Of these three, two by now should be quite familiar. The first contemplates a future characterized by the rise of “universal civilization”; this imagining returns us to the notion of “law without nations” in the most obvious sense. This is the vision characteristic of the body of zero-sum scholarship that views the rise of cosmopolitan law as coming at the expense of the legal strength of the nation-state. The second possibility pushes in the opposite direction while also accepting the basic frame of the zero-sum model. In this imagining, the locus of legal efficacy, far from shifting toward cosmopolitan institutions and organizations, remains powerfully grounded in the nation-state. In this prediction, however, the state does not move toward the postnational ideal of liberal plurality; rather, it moves ever more in the direction of militant ethno-nationalism, a revival and recasting of the old vision of das Volk. In part, this is the vision that Barkan asks us to entertain, in his description of states purified by periodic acts of ethnic cleansing and population purges. Shweder’s third augury of globalization, however, is the most intriguing. With an eye cast back in time toward the successes and durability of the Ot-

18

Douglas, SARAT, and Umphrey

toman Empire, Shweder asks us to imagine the possibility of such an imperial form—at once multinational and liberal—experiencing a future revival. Inasmuch as Shweder’s project is predictive, he offers no normative justification of multinational liberal empires. But in placing this third augury at the conceptual and predictive center of his chapter, Shweder presents a picture of the future that attractively concludes the inquiry we hope to stimulate with this volume. On one level, Shweder’s third augury agrees with the other chapters in suggesting the insufficiencies of the zero-sum model. At a richer level, Shweder’s augury connects with Stone’s discussion of Halakha and Cohen’s treatment of sharia. These latter chapters examine the complex manner in which national ideologies and religious belief can be shoehorned into and also percolate out of state forms. Shweder extends this analysis by imagining new institutional forms—at once imperial and liberal—arising out of this fraught interaction. In his view, empire may give rise to forms that are neither national-particularistic nor abstractly global; the rich particularism of competing Völker is neither aggressively ascendant nor sublimated into a thin liberal state. In identifying a locus of legal power and meaning that operates on a level between ethno-nationalism and universal civilization, Shweder’s third augury offers a provocative concluding vision of “law without nations.” Prediction, of course, is an uncertain business. Ultimately the chapters in this volume are concerned less with musing on the future than in offering sharp analyses of the past and present. In their refusal to see the relationship between state and global forms in zero-sum terms, they extend the terms of prior debate and scholarly inquiry. And in their interrogation of received shibboleths and in the originality of their thinking, these contributions reconfigure our understanding of the fraught relationship between the nation and the state—and the legal forms and practices that they require, constitute, and violently contest.

Notes . Ernst Renan, “Qu-est-ce qu’une nation?” (“What Is a Nation?”), reprinted in Homi Bhabha, ed., Nation and Narration (London: Routledge, ), –. . The classic definition of the state in terms of monopoly of force comes from Max Weber, “Politik als Beruf,” in Studienausgabe der Max-Weber-Gesamtausgabe Bd.  (Tübingen: J. C. B. Mohr, ). . Thomas Hobbes, Leviathan (London: Penguin, ).

Law without Nations: An Introduction

19

. Emile Durkheim, The Division of Labor in Society (New York: Free Press, ). . Hobbes, Leviathan, . . See, for example, D. Gauthier, The Logic of “Leviathan”: The Moral and Political Theory of Thomas Hobbes (Oxford: Clarendon Press, ). . See, for example, C. Finkelstein, ed., Hobbes on Law (Aldershot: Ashgate, ). . Hobbes, Leviathan, . . See H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, ); and Hans Kelsen, Reine Rechtslehre: Einleitung in die rechtswissenschaftliche Problematik (Tübingen: Mohr Siebeck, ). . Hugo Grotius, On the Law of War and Peace (Whitefish, MT: Kessinger, ). . Karl Jaspers, Wohin treibt die Bundesrepublik? (Munich: Piper, ), . . Telford Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (Boston: Little Brown, ). . See Christian Tumaschat, “The Legacy of Nuremberg,” Journal of International Criminal Justice , no.  (): –. . See Gideon Boas, The Milosevic Trial: Lessons for the Conduct of Complex International Proceedings (Cambridge: Cambridge University Press, ). . See Lawrence Douglas, “Shattering Nuremberg,” Harvard International Review, fall , http://www.harvardir.org/index.php?page=article&id=&p=. . See, for example, Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (Oxford: Oxford University Press, ). . See, for example, Wenhua Shan et al., eds., Redefining Sovereignty in International Economic Law (London: Hart, ). . See also Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, ). . See, for example, Ramesh Thakur and Peter Malcontent, eds., From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (New York: United Nations, ). . See, for example, Jeremy Rabkin, Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton: Princeton University Press, ). . See Philippe Sands, Lawless World: America and the Making and Breaking of Global Rules—From FDR’s Atlantic Charter to George W. Bush’s Illegal War (New York: Viking, ). . See Alfred Aman, The Democracy Deficit: Taming Globalization through Law Reform (New York: New York University Press, ). . See, for example, Stephen J. Calabresi, “A Shining City on the Hill”: American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law,  B.U.L. REV.  (). . See, for example, Rabkin, Law without Nations.

20

Douglas, SARAT, and Umphrey

. Hugh Eakin, “The Jewish Company behind a German Slogan,” New York Times, April , . . See Cornelia Essner, Die Nürnberger Gesetze oder Die Verwaltung des Rassenwahns — (Paderborn: Schöningh, ). . In , Germany formally changed its law of citizenship, relaxing the principle of Jus sanguinis and moving toward a civic definition. Nonetheless, the concept of a hyphenated identity remains to this day largely foreign. . Johann Gottlieb Fichte, Reden an die deustche Nation (Hamburg: Meiner, ). . While some scholars have challenged the notion that Fichte offered an ethnic definition of nationhood, this position receives a strong defense in Arash Abizadeh, “Was Fichte an Ethnic Nationalist? On Cultural Nationalism and Its Double,” History of Political Thought , no.  (Summer ). . Renan, “What Is a Nation?,” . . Ibid., . . Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, ). . Ibid., . . See, for example, Eric Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, ). . Roger Cotterrell, “Law and Culture—Inside and beyond the Nation State,” Retfoerd: Nordisk Juridisk Tidsskrift , no.  (): –, . . Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, ). . “It goes without saying, that a foreigner, a guest, an alien-interloper, will view the law of the People/nation (Volkes) in which he finds himself as guest . . . exclusively in terms of security. He doesn’t belong to the reality of the Volkes in which he lives.” Carl Schmitt, quoted in Bernd Rüthers, Entartetes Recht: Rechtlehren und Kronjuristen im Dritten Reich (München: Deutscher Taschenbuch Verlag, ),  (author’s translation). . See Hart, The Concept of Law. . See, for example, Joseph Raz, The Authority of Law (Oxford: Oxford University Press, ). . John Stuart Mill, On Liberty and Other Writings (Cambridge: Cambridge University Press, ). . See Isaiah Berlin, Four Essays on Liberty (Oxford: Oxford University Press, ). . John Rawls, A Theory of Justice (Cambridge: Harvard University Press, ). . See, for example, Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, ).

Law without Nations: An Introduction 21

. See Immanuel Kant, Grundlegung zur Metaphysik der Sitten (Köln: Anaconda, ). . See, for example, Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (Oxford: Oxford University Press, ). . Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, ). . The days of such an aggressive use of universal jurisdiction on Spanish courts, however, may be numbered. See Victoria Burnett, “Spain’s Legislators Urge Curb on Rights Crimes Prosecutions” New York Times, May , . Belgium, the first country to try to use universal jurisdiction aggressively, also has curbed the practice. See Human Rights Watch Report, “Universal Jurisdiction in Europe: The State of the Art,” http:// www.hrw.org/reports//ij/.htm. . Often cited in this regard are the decisions in Roper v. Simmons,  U.S.  (), which held the juvenile death penalty unconstitutional under the Eighth Amendment, and Lawrence v. Texas,  U.S.  (), which struck down a Texas antisodomy statute on due process grounds. Both decisions drew upon foreign and international materials. . See, for example, Guenael Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford University Press, ).

Beyond “Beyond the State”: Rethinking Law and Globalization jeremy e lkins

I. Introduction It is a standard refrain in the literature on globalization and law that as globalization increases, the significance of nation-states declines. And to be sure, the sense that law is becoming less state-centered reflects something that is very real and very profound. Reductions in trade barriers have increasingly globalized markets, and there has been a corresponding increase in the density of international networks of governance—official and unofficial, formal and informal. With the establishment of the WTO and the proliferation of regional trade blocs, new tribunals for settlement of disputes have been created that not only represent broad delegations of legal authority but also may potentially lead to the creation of new lawmaking bodies and perhaps even an international common law of trade. The development of the European Union, covering now virtually all of western and central Europe and likely to increase both in the breadth of membership and the depth of integration, represents the most extensive confederation of free states in modern times. And states have found themselves increasingly subject to the claims of a growing body of human rights law that asserts its foundation not in agreement but in universal principles of justice. All of this is familiar stuff. But while these sorts of developments clearly represent an increase in the internationalization of regulation and adjudication, it is too early to speak of a wholesale decline of state sovereignty and of the state-centric model of law. Indeed, the extent to which one regards any such development as undermining state sovereignty will depend in part on how one conceives of sovereignty in the first place, and perhaps as well on what particular states we focus on. At a purely formal level, it could be argued that

Beyond “Beyond the State” 23

the relation of state sovereignty to law has, in fact, changed very little. After all, even the European Union can still be understood formally as a set of contingent delegations of authority by member states in a voluntary association, each of which is free to evaluate for itself whether the benefits of membership exceed the costs, and free, at any time and for any reason, to withdraw consent and leave the union. More so yet might the WTO, the systems of arbitration attached to regional trading blocs, and the European Court of Human Rights (with authority to adjudicate the European Convention on Human Rights) be regarded from this perspective as forms of delegated authority—granted on a contingent basis by the consent of legally sovereign states—that do not undermine the ultimate sovereignty of the signatory states any more than the growth of administrative agencies domestically undermines the authority of the legislatures that have empowered them. While there has been, to be sure, a noteworthy increase in the work of international tribunals such as the U.N. Security Council, the International Criminal Court, and ad hoc tribunals established to try human rights violations whose jurisdictions are not limited to consenting states or to relations between state actors,1 the jurisdiction of most international tribunals is limited to consenting parties who may withdraw—as, for example, the Reagan and George W. Bush administrations were prone to do for tribunals whose decisions or anticipated decisions they did not like.2 In response to this line of argument, according to which a state’s consent to remain subject to the jurisdiction of international bodies is an expression of sovereignty rather than its eclipse, there may, of course, be pressed a more substantive analysis. While in many cases states may indeed effectively escape the jurisdiction of transnational bodies by withdrawal of consent and membership, clearly, it can be said, the growth of such transnational arrangements alters the environment within which state decisions are made and constrains the arena for sovereign decision-making. Just as the creation of an automobile society increases the costs for those without cars, or just as the ratification of the U.S. constitutional order by nine states increased the pressure on the remaining ones to join the union—threatening to leave them as (in James Madison’s words) “outcasts from the Society,” “left . . . to shift for themselves”3—so, too, it can be said, the establishment of transnational agreements may (particularly in the case of trade) impose costs of nonmembership. Moreover, if we are to treat state sovereignty in terms of the effective power of states to promote their interests

24

jeremy elkins

(at least as defined by national governments), the cost of noncooperation will generally be greater for those states that also have less ability to shape the terms of cooperation. But the analysis from this perspective is complicated; and the extent to which one thinks that a particular state will, under any particular globalizing arrangement, gain or lose in its capacity to achieve its perceived sovereign interests will depend to a great extent not only on how great an influence it has in shaping the terms of that arrangement, but also on how its interests are conceived, and—recognizing that some states always have had more ability than others to impose their will or influence upon the environment within which state decisions are made—on what is imagined to be the alternative. I shall not in this paper be concerned specifically with these questions. I mention them here only to emphasize that even with respect to the growth of supranational bodies, the relationship between what I shall refer to as legal globalization and the sovereignty of individual states is complex, and that the question of where and to what extent the development of such bodies will displace state authority/power, as opposed to providing new avenues for the (uneven) exercise of state power, is an open one. Nonetheless, nothing that I shall say in this paper is meant to deny that in some areas there has, indeed, been a movement of legal authority to supranational bodies, nor the likelihood that for some kinds of international bodies, this migration of authority will increase. The central point that I want to make in this paper, rather, is that, beyond even these complex questions of where and to what extent the growth of transnational bodies results in the decline of the traditional prerogatives of the state in relation to law, it is a mistake to identify legal globalization with the loss of state authority or power; and that this is so because there is another face of legal globalization—too often neglected in the discussion of globalization and law—that has little to do (at least directly) with the growth of transnational bodies at all. It is this other face of legal globalization with which I shall be concerned here.  The tendency to think of legal globalization primarily in terms of the transfer of authority from “within” individual states to an “outside” authority may itself, ironically enough, rely to a great extent on a traditional model of what a state is and how it stands toward law—a model from which, in other respects, legal

Beyond “Beyond the State” 25

globalization, on this or any account of it, represents a break. In the traditional model, the state is an essentially bounded entity, circumscribed by its territorial border, and possessing a Janus-faced sovereignty in relation to that border. Internally, or on its domestic side, sovereignty consists in supreme legal jurisdiction: that is, the authority, literally, to speak the law (juris-dictio) for the whole body, to articulate the standards of, or for, the social-ethical order. Jurisdiction is by its nature, in this model, inward-looking, connected to a particular social order, a particular Sittlichkeit. Externally, by contrast, the state in the traditional model is conceived as possessing no legal jurisdiction. Outwardly, it is one individual among others, interacting in a state of nature. Indeed, the case of “kings and persons of sovereign authority” as it has existed “in all times” was precisely Hobbes’s example of the state of nature in actual existence: in contrast to life under a “common power” and state of law that defines “Injustice[,] Force, and Fraud . . . Propriety . . . Dominion . . . , Mine and Thine,” external sovereignty consists in absolute autonomy and liberty—“every one governed by his own Reason,” with no “common power” and “no . . . law.”4 The tendency to think about legal globalization as a transfer of authority from inside the state to outside of it, while on the one hand representing a departure from this model of jurisdiction as internal to individual states, nonetheless relies on this same model in the thought that if jurisdiction is to be exercised outside of such states, it must be exercised by something like a larger state—by a transnational state or by quasi-state institutions that have jurisdiction to articulate the standards of a broader social-ethical order. Jurisdiction, though no longer the monopoly of individual states, remains nonetheless, on this understanding, an inwardlooking practice. Yet there is a significant aspect of globalization that does not involve such a loss of state authority at all or the development of transnational bodies, but consists rather in the reconfiguration of the state and its relation to the world: not a transfer of legal authority from “inside” the state to “outside” of it (nor a mere delegation of authority by sovereign states), but rather a shift in the construction of “inside” and “outside” in their relation to the state—that is to say, the projection of “inside” outward and the introjection of “outside” within.5 In this form of it, then, globalization of law is not about the loss of state authority to a transcendent legal order, but about how the state—both in its relation to other political bodies and “domestically” (in the formal sense of that term)—is

26

jeremy elkins

reconstituted through the changing relation of what is “within” and what is “without.” This is a very abstract formulation, and I shall try to make its meaning more clear by illustrating it. My primary illustrations will involve punishment on the one hand and war on the other. I focus on these because the distinction between punishment and war is perhaps the paradigmatic instance of the distinction in the traditional model between inside and outside—between a domestic legal order and an international state of nature; and because of that, it is in these areas where subversions of the traditional model appear in some of their most dramatic forms, and where an alternative configuration of the state can most easily be noticed. Yet this alternative configuration of the state in relation to law appears in other areas as well—arguably with even greater cumulative significance; and, while given the constraints of space I shall not be able to give sufficient attention to these, I shall point to some of the most important of them. Each of the particular developments that I shall discuss has been written about quite extensively. The contribution that I hope to make in this paper is theoretical and synthetic: I shall want to suggest how these developments, taken together, represent a very different model of legal globalization from the transnational institution model, and one that theorists of globalization have not attended to sufficiently. Of course, with these historical developments, just as with those concerning international legal bodies, we cannot know for certain just how far they will be carried; and the full significance of these tendencies cannot be known at the present. If none of the trends that I shall discuss were to continue beyond their present state, we might perhaps be justified in treating them as marginal extensions of traditional legal ideas about the relation of the nation-state to the world. But it is unlikely that the developments of the past several decades have finished running their course; and we are in a position already to take account of their potential in reconstituting the jurisprudential relation of the nation-state to the world.

II.  Punishment and War In the traditional conception of the nation-state—let us refer to it for shorthand as the Westphalia-Rechtsstaat model6—punishment and war are paradigmatic forms of, respectively, internal and external sovereignty. If sovereignty is

Beyond “Beyond the State” 27

conceived internally as the authority to define a legal-ethical social order, central to sovereignty is the definition and prosecution of crime. Thus while there are principles of abstract justice that may be recognized outside of the state, a system of criminal justice, which articulates more specifically the character of crimes for a particular society and which then punishes violations not only as wrongs against individuals but as against the community itself as a form of ethical life, is essentially bound up with the state. As Hegel put this idea, only in organized society does “the injured universal now make its appearance,” and therefore only in the state can there be punishment in the proper sense.7 By contrast, war is a paradigmatic act of sovereignty outside of the borders of the state, for there, there is no law to govern—“no appeal,” in Locke’s words, “but to Heaven”8—and “[c]onsequently if no agreement can be reached between particular wills, conflicts between states can be settled only by war.”9 The distinction between criminal justice and war as one between, respectively, relations inside the state and relations among states has, to be sure, never been absolute. Perhaps the most obvious exception has been the idea of a law of war (and correspondingly, of crimes of war), which has ancient roots. But until the end of the nineteenth century, prohibitions on violating the laws of war (which were mostly concerned with conduct during war—what would come at the time of the League of Nations to be referred to as jus in bello)10 were most commonly addressed internally to a ruler’s or state’s own soldiers.11 And the standards of the Hague Conventions of  and  and of the Geneva Conventions were, at least on their face, treaties among “distinct and sovereign wills”—and as such applicable only to those states that agreed to adopt them. By and large, then, these laws of war have been fairly easily conceptualized within the framework of traditional state authority.12

III.  Crime and International Tribunals From the perspective of legal globalization understood as the transfer of legal jurisdiction away from individual states to transnational bodies, the most significant challenge to the traditional distinction between punishment and war as between that which takes place inside the territorial boundaries of the state and that which takes place between states has been the development of international criminal tribunals. Yet while there can be little doubt that the existence

28

jeremy elkins

of these tribunals does challenge that distinction, it is a legitimate question how far they do so. And the answer to that question must depend on at least two considerations: first, the extent to which those institutions adopt the character of a genuine system of criminal justice in the full ethical sense in which that has come to be understood in the modern Rechtsstaat, and second, on the extent to which their authority is genuinely supranational—that is, genuinely independent of those states that are subject to, or whose nationals are subject to, their jurisdiction. But in fact, each of these two conditions has tended to be satisfied only in inverse relation to the other. The first great instance of an ostensibly international criminal tribunal in modern times was the Nuremberg tribunal after World War II, which was given jurisdiction to try “persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations,” were charged with having committed or having conspired to commit “crimes against the peace” related to the initiation of an illegal war, war crimes (involving “violations of the laws or customs of war”), or crimes against humanity.13 What distinguished the Nuremberg trials from what had come before was not the idea that there were universal laws of war, but the assumption of authority by an international criminal tribunal to prosecute violations of those laws. Yet if the Nuremberg tribunals claimed the status of an international criminal court, and adopted some of the characteristics of national criminal courts, they differed from both in a number of respects, and raised for many the specter of victor’s justice. The Treaty of Versailles, too, had been described as (and itself speaks of) punishment and penalties for violations of the law of war.14 But the character of the penalty provisions of that treaty has often been thought closer to the exactions of a military conqueror than of a balanced judgment of law; and ultimately the provisions in that treaty for an international trial of World War I war crimes were abandoned in favor of allowing German courts to try their own soldiers.15 The Nuremberg tribunals struggled to claim a different character. But even the statement of the relevant law established by the victors after the end of the war (over which the greatest influence was exercised by the U.S. chief prosecutor)16 refused the specificity that would ordinarily be expected of criminal law, articulating each of the three major crimes in only the most general terms while qualifying any more specific statements of offenses as mere examples—“including but not limited to”—of what would count as violations

Beyond “Beyond the State” 29

of the law.17 One of the consequences of that refusal, and one of the great marks undermining the legal status of those principles, was the ease with which the Allied powers excluded any actions of their own—such as the Soviet attacks on Poland and Finland in , the Soviet mistreatment of German prisoners of war, the British and U.S. bombing of Dresden, and the American atomic bombing of Hiroshima and Nagasaki—as violations of law.18 In addition, the procedures and evidentiary decisions of the tribunal have been often criticized as violating the rule of law.19 Thus, while the Nuremberg tribunal offered itself as a supra-national tribunal imposing punishment on the model of a domestic criminal court, it still looked in many ways like an extension of war. The more recent international ad hoc criminal tribunals, most notably the International Criminal Tribunal for (the former) Yugoslavia and the International Criminal Tribunal for Rwanda, share some of that character. While the charters of these tribunals improve upon the Nuremberg model in a number of respects, including, importantly, the inclusion of judges from states that were not involved in the military conflict, they, too, not only establish the tribunals, and define their jurisdiction, but to some extent define retroactively the crimes under which the defendants are to be charged. And like the charter of the Nuremberg tribunal, they leave many of the central terms of the statement of crimes undefined or vague. In defense of these tribunals as genuinely courts of law, consistent with the ideal of the rule of law, it has been argued that the principle that crimes should be defined clearly and in advance of their prosecution—classically expressed by the dictum nullum crimen, nulla poena sine praevia lege poenali [no crime, no penalty, without a prior criminal law]—rests on the notion that persons ought not to be punished where they were not aware that their actions were wrong; but that such a principle has less force, or none at all, for acts that are not only malum in se but barbarously so. But the principle of fair warning is only one of the rationales for nullum crimen. A very different rationale, and one that goes to the heart of the ideal of the rule of law, is that crimes (although not only crimes) ought to be defined precisely enough to be able to apply equally to all, rather than being dependent on the discretion of those in power. For what distinguishes victor’s justice from legal punishment is not that the former is necessarily unjust—but that it is not law; and the question for an international tribunal that rests genuinely on the idea of the rule of law is not whether the defendants commit-

30

jeremy elkins

ted acts that were cruel or wicked, but whether those acts were criminal. Many states, after all, engage in acts (some states routinely) that are cruel, but that are defended as legitimate and necessary; and the right to make the judgment of what is justified under the circumstances is part of the traditional conception of state sovereignty. Because of this, one mark of the transition from victor’s justice—which is to say, an extension of war—to a genuinely transnational form of legal punishment is the prospective articulation of crimes in a form sufficiently precise that they can be applied to the conduct of all officials or persons, and not merely those who find themselves on the wrong end of an ad hoc tribunal. And from this perspective, the ad hoc character of these tribunals and their charters, combined with the generality of the statement of crimes over which they have jurisdiction—amounting in essence to a delegation of authority to further specify the crimes—gives these tribunals still a somewhat ambiguous status, somewhere between power and authority, between war and law. As I have said, the charters of those international criminal tribunals that have been established since Nuremberg nonetheless represent significant improvements in the character of these tribunals as courts of law, and there are several developments in particular that suggest the possibility of moving further in that direction. Surely most important among these is the establishment of the International Criminal Court. Even before the establishment of the ICC, there had been moves toward standardizing the meaning of genocide, crimes against humanity, and (relying on the postwar Geneva Conventions) war crimes. (The definition of genocide, for example, is precisely the same in the charter of the Yugoslavian and Rwandan tribunals—although the definition of crimes against humanity is not.)20 But the Rome Statute establishing the ICC went further by codifying the meaning of those crimes for all future cases to be decided before it. Moreover, the statute defines these crimes in much greater detail than had the charters of the ad hoc tribunals, and provides a procedure for further prospective specification of the elements of these crimes, with the expectation that over time the statement of criminal offenses will become more explicit and detailed.21 The Rome Statute, explicitly recognizing (in a section devoted to the “General Principles of Criminal Law”) the principles of nullum crimen sine lege and nulla poena sine lege, both limits the jurisdiction of the Court to prospective violations and requires that the definition of crimes be strictly construed.22 And while moving in these respects further away from the taint of victor’s justice, the

Beyond “Beyond the State” 31

Rome Statute also begins to move beyond the model of state sovereignty from the other direction, by abandoning the idea—still present in the charters of the Nuremberg and Yugoslavian tribunals—that the jurisdiction of the Court rests on consent to its authority on the part of those states whose nationals were to be subject to its jurisdiction. Thus, for example, the Rome Statute of the ICC includes as war crimes “grave breaches” of the Geneva Convention of , whether or not the violators were signatories to that convention. Yet in a number of important respects, the ICC still relies quite heavily on the traditional model of state sovereignty. The Rome Statute requires, with one exception, that when a state does not give its consent to the prosecution of its nationals, the Court may prosecute cases only with the consent (either as a signatory of the ICC or on a case-by-case basis) of the state on whose territory the alleged crimes took place. This is significant, for the nationality of the defendant and the location in which the alleged crime took place are the two most common bases on which the jurisdiction of national criminal courts has been recognized. In this respect, then, the ICC’s authority looks very much, not like an authority transcendent to states, but simply like a contingent delegation of authority from individual states to do what those states might have done directly. (While the Rome Statute prohibits signatory states from withdrawing their consent on an ad hoc basis, it allows states to withdraw prospectively with a year’s notice.) And in another blow to the idea of an international tribunal independent of state authority, the Rome Statute specifically requires the Court to respect bilateral agreements between states not to surrender to the ICC the other’s nationals without the home state’s consent—on the basis of which the United States (which has led the way on this) has gone very far in excluding its nationals entirely from the jurisdiction of the Court.23 The major exception to this characteristic of the ICC as a mere delegate of state authority is the provision allowing cases to be brought against any person on the referral of the U.N. Security Council. Yet in a different and obvious way, this provision also threatens the ICC’s promise to be an independent criminal tribunal under the rule of law, for the five permanent and veto-bearing members of the Security Council are thereby immunized from the ICC’s jurisdiction. Indeed the United States (during the Clinton administration) originally supported the establishment of the ICC only on condition that Security Council approval for prosecutions would be mandatory, precisely so as to prohibit any

32

jeremy elkins

prosecutions of U.S. nationals without its consent.24 (The insistence by other states that the ICC could prosecute cases brought by individual states without Security Council approval led to the Clinton administration’s criticism of the Rome Statute and its recommendation that its successor not submit the treaty for approval by the Senate.) And in the only referral to date by the Security Council (Sudan) to the ICC prosecutor, the Security Council explicitly exempted from prosecution, except with their state’s consent, the nationals of states that were not parties to the ICC—which includes, not coincidentally, three permanent members of the Security Council.25 None of this is meant to deny the important achievement that the ICC represents and the potential for its development as an even stronger body.26 It is rather to emphasize that in a number of respects, the ICC still relies on (even as it nibbles away at) the traditional authority of states to mete out criminal punishment for actions committed by its nationals or that take place on its territory. Yet at the same time in which the ICC was being proposed and established,27 a very different sort of development was occurring with respect to the globalization of criminal law, one that challenges far more deeply, and in a very different way from that of the development of transnational bodies, the traditional model of state sovereignty.

IV.  Crime and the Extension of the State That development is well illustrated by two kinds of cases. The first of these was the arrest and detention of former Chilean dictator Augusto Pinochet in the United Kingdom on October , , on a series of charges issued by a Spanish court. The proceedings that followed presented the extraordinary image of an ordinary Spanish criminal court pressing,28 against the diplomatic concerns of the Spanish government, extradition hearings in the UK against a former Chilean leader who had been issued a standing invitation by Britain’s former prime minister,29 for crimes committed on non-Spanish soil against (in part) non-Spanish nationals.30 Understandably, the focus of press attention was, substantively, on the issue of Pinochet’s claim of immunity (as a head of state) and, procedurally, on the issues concerning extradition. But from the perspective of legal globalization, what is perhaps more significant is the nature of the charges themselves.31

Beyond “Beyond the State” 33

Pinochet was charged by Spanish authorities with several types of crimes: genocide, terrorism, and torture. The first and last of these have been defined by U.N. conventions and recognized as international crimes over which there is some form of universal jurisdiction; and because of this many commentators have treated the Pinochet case as a straightforward example of international human rights law. Yet the Spanish prosecution was not simply an application of internationally defined crimes, either procedurally or substantively. Procedurally, the U.N. convention on genocide recognizes only the jurisdiction of those states in whose territory the crimes were allegedly committed, and “such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”; while the convention against torture requires of signatories only that they establish jurisdiction over acts of torture that are committed in their territory by their nationals or by a person who is currently present in their territory (unless such a person is extradited).32 Spain’s assertion of jurisdiction over Pinochet with respect to non-Spanish victims was thus neither required nor specifically authorized by any international conventions. And substantively, while the Spanish court (the Audiencia Nacional) that sustained on appeal the charges against Pinochet relied in part on the international conventions on genocide and torture in establishing the general nature of these crimes as international, it held that the meaning of genocide for the purposes of the case was to be determined by domestic law.33 This was a crucial holding, without which the genocide charges against Pinochet may not have been possible. For while the U.N. Convention on the Prevention and Punishment of the Crime of Genocide defines genocide in terms of various acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group,” the victims of the Chilean atrocities had not been selected on the basis of those categories, at least not in their ordinary sense.34 But the Audiencia Nacional, noting that the Spanish criminal code originally included in its definition of genocide an intent to destroy a “national ethnic, social, or religious group,” concluded that both the inclusion of “social” groups (which is not to be found in the U.N. definition) and “the lack of a comma between ‘national’ and ‘ethnic’” indicated that genocide under Spanish law was not “limit[ed] . . . to the international definition.”35 And although Spain had subsequently changed its criminal code to parallel the language of the U.N. Convention, the Court held that Spanish law still incorporates a “social conception of genocide”—that

34

jeremy elkins

is, a conception of genocide reflecting ordinary social use—which it found to include the attempt to destroy any “national human group” or “differentiated human group, characterized by some trait, and integrated into a larger collectivity,” such as, in the Pinochet case, the category of “those citizens who did not fit the type pre-established by the promoters of the repression as necessary for the new order to be installed in the new country.”36 More significantly yet, the crimes of terrorism with which Spain charged Pinochet had no specific parallel in an internationally codified crime. Instead, the Spanish courts relied on the Spanish criminal code, which defines terrorism as committing one or more of a variety of violent predicate acts while “acting in the service of, or collaborating with, armed bands, organizations or groups whose objective is to subvert the constitutional order or subvert serious breaches of the peace.”37 (Pinochet was also charged with “illicit association” in a terrorist group, a crime under Spanish law.) Moreover, while Spanish law does not permit its courts to exercise universal jurisdiction over an individual who has been “acquitted, pardoned, or punished abroad,” the Audiencia Nacional held that those whose cases had been dismissed with prejudice by Chilean courts on the grounds that their prosecution was barred by the  Chilean amnesty law could not be considered to have been granted a “true pardon pursuant to the Spanish law applicable in this proceeding,” but merely as having been excluded from prosecution by a “decriminaliz[ation of] certain conduct for reasons of political convenience.”38 Thus the Spanish court not only assumed jurisdiction over acts that took place in Chile by a non-Spanish national against (in part) non-Spanish victims according to substantive Spanish domestic law, but also on the basis of its rejection of a Chilean law and the dismissals of cases by Chilean courts as not amounting to pardons or acquittals under Spanish law.39 The Pinochet case is only the most famous of recent cases in which states have exercised universal criminal jurisdiction.40 One of the most intriguing instances prior to the arrest of Pinochet was the U.S. government’s somewhat ironic attempt (given its position on the ICC) to find a country whose domestic law provided for universal jurisdiction and which was willing to prosecute members of the Khmer Rouge regime. The United States had approached Canada for this reason (other candidates included Denmark and The Netherlands) and reportedly had made plans to “arrest” Pol Pot and to transport him there for trial.41 After Pol Pot’s death, the United States continued to prepare indict-

Beyond “Beyond the State” 35

ments against other former members of the Khmer Rouge and to investigate the possibility of bringing them to trial in a country with universal jurisdiction.42 Although hardly as dramatic a media event as the arrest of Pinochet, this was, from the perspective of legal globalization, perhaps no less significant: one country proposing to use military means to bring to trial in a second country under its domestic laws members of the former regime of a third country for crimes committed there against its own nationals. In this case, the relevant domestic laws that were to be applied universally were once again regarded as implementing principles of international law. But as in the Pinochet case, these were domestic versions of those principles; and as such, the plan for these trials was not merely to use domestic courts to enforce international law but also to extend the substantive provisions of domestic law outward beyond the territorial confines of the state. The second kind of case is of a very different sort from the Pinochet or Khmer Rouge cases, and it is one that has evoked very different (sometimes opposite) responses by many of the supporters of that case and many of its critics. But it is no less spectacular: the capture and trial of Manuel Noriega and his personal secretary by the United States on U.S. drug charges.43 While at least among democratic countries, and perhaps among all countries, it has been the United States that has most loudly criticized the ICC as violating the sanctity of the sovereignty principle, in the Noriega case the U.S. took the extraordinary step of invading another sovereign country and arresting its de facto leader on charges, not of committing such universal crimes as genocide or violations of the law of nations, but of transgressing very particular domestic narcotics laws and participating in a “racketeering enterprise” under U.S. law.44 And while a number of present and past U.S. officials opposed the prosecution of Pinochet and have raised concerns that such prosecutions of heads of state through the application of extraterritorial jurisdiction opens the possibility that law will be politicized—used to “settle political scores” in the words of Henry Kissinger,45 who issued a blistering criticism of the Spanish actions against Pinochet—these critics raised little concern about the invasion of Panama and the arrest of Noriega, despite the fact that the invasion and arrest just happened to coincide with Noriega’s taking actions as head of state that the U.S. administration believed threatened U.S. interests in the canal zone. After Noriega’s capture and arrest, his lawyers moved to dismiss the charges

36

jeremy elkins

against him on several grounds, including the inapplicability of U.S. criminal law to actions taking place entirely outside of the United States, and the immunity accorded to heads of state under international law. The district court, however, rejected both of these. It held that the application of U.S. drug laws to Noriega fell squarely and “unequivocally” within the long-standing principle of extraterritorial jurisdiction for criminal offenses that had an effect domestically, likening—quite extraordinarily—Noriega’s involvement in the manufacturing of cocaine destined for the United States to “a person standing in Canada who fires a bullet across the border which strikes a second person standing in the United States.”46 And of enormous significance, the Court dismissed Noriega’s claim of sovereign immunity on the grounds that such immunity was itself based entirely on domestic law (although “grounded” in customary international law), and was thus merely a “privilege” that the U.S. courts bestowed on foreign leaders out of “deference to [its own] Executive branch,” and “which the United States may withhold from any claimant.” Because the U.S. administration, the Court held, had “never recognized Noriega’s claim to be the legitimate head of state” of Panama, and because it clearly had not wished to shield Noriega from criminal prosecution, domestic law did not bar prosecution.47 In upholding this latter ruling (the former was not appealed), the Court of Appeals wrote: “The Supreme Court long ago held that ‘[t]he jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.’”48 And it held that in the United States, immunity for heads of state was vested in the executive, which “by pursuing Noriega’s capture and this prosecution . . . has manifested its clear sentiment that Noriega should be denied head-of-state immunity.”49 Spain’s pursuit of charges against Pinochet and the U.S. trial of Noriega involve what lawyers refer to as the “extraterritorial” application of domestic criminal law. But because extraterritorial jurisdiction has long been recognized in principle as an aspect of sovereignty, and yet rarely employed, the description of these cases merely in those terms may obscure their significance in representing a potentially enormous shift in the conception of states and their relation to law. To see the potential significance of these cases, it is necessary to go behind the language of extraterritorial jurisdiction: to ask what model of states these

Beyond “Beyond the State” 37

cases imply, and how legal globalization based on that model differs from the model of globalization based on transnational institutions. Earlier, I noted some of the ways in which international tribunals such as the ICC remain limited by state sovereignty. But even if the ICC were to become a fully independent authority, exercising a true universal jurisdiction without relying on the consent of individual states, it would, while representing an important limitation on individual state sovereignty, remain, as I have already said, within the traditional state sovereignty model. For such a tribunal would, in taking over a jurisdiction formerly held by individual states, in essence become a quasi-superstate for a limited set of issues. And while in such a circumstance, the extent of individual state sovereignty would be reduced, the basic shape of the state would remain essentially intact. (The very language of a “transfer” of authority from the state to another body suggests just this.) In contrast, the version of legal globalization represented by cases like that of Pinochet and Noriega involves a radically different relation of states to law. If in the traditional conception, states are conceived as self-contained units, touching each other only at the borders, each beginning where the other ends and ending where the other begins, in this alternative model, states appear as essentially extended entities: not as discrete, independent units with an inside and an outside that correspond to its territorial boundaries, but something more like Leibnizian monads, for which the world is a vast expanse of its own reach: a model, as it were, of states with no windows.50 On this model, legal globalization does not imply a shrinking of the state’s authority over law at all, but to the contrary an enlargement of it.51 And because the domain of active state jurisdiction—of the jurisdiction of each state in this model—is the whole world, the enlargement of the size of jurisdiction is also a change effectively in the shape of the state. Now, as I have said, the principle of extraterritoriality is nothing new, and despite the centrality of the standard conception of state sovereignty, the idea of states as infinitely extended has, in fact, long had a place in jurisprudential thought. Indeed, in an important respect, the standard model of sovereign states itself already implies just such an idea: for to the extent that states are thought of as having complete sovereign authority “within,” that authority must include the ability to decide how far and in what ways to respect rules and principles “outside” of it. (In this respect the model of states as extended entities is the limiting case of the model of states as territorially bounded. Or put differ-

38

jeremy elkins

ently—and more dialectically—the idea of states as infinitely extended is both contrary to the idea of bounded states and yet contained within it.) Thus, for example, even though many states recognize constraints of international principle (and in that sense a limitation on the authority of the state), the question of what international principles are to be considered a part of domestic law has long been considered a matter of domestic law.52 Similarly, while the model of sovereign states implies that each state is equally sovereign (again suggesting a principle of respect for something outside the state), that principle of restraint has sat in tension with the idea that whatever restraints are adopted are ultimately self-restraints.53 The model of states as infinitely extended already appears as well within the traditional model in the question of the respect that one state owes to the laws of other states. While the idea that states owe some kind of respect has sometimes been thought a general principle of international law, the question of how far the law of foreign jurisdictions will be recognized in domestic law, and made enforceable within domestic tribunals, is itself, once again, a judgment of domestic law. This is well illustrated in the decision of the seminal U.S. case, Hilton v. Guyat (). “International law,” the U.S. Supreme Court held, “is part of our law,” and the principle of the “comity of nations” rests at least in part on “international duty.” Yet in virtually the same breath, the Court undermined the independent force of such principles by asserting that the question of how to balance “international duty and convenience” with “the rights of its own citizens, or of other persons who are under the protection of its laws,” must be a judgment of domestic law. “Every nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded,” and because of this, “[t]he comity thus extended to other nations is no impeachment of sovereignty,” for it is ultimately “the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial to its interests.”54 While the recognition of the general principle of comity, and of particular provisions of foreign law, is thus in one sense an act of respect and forbearance, it is, in another sense, an extension of the state. This extension is of a different sort from that of universal jurisdiction and at least on the surface the opposite: not an application of domestic law beyond national borders but an acceptance by one state of foreign law into its domestic law. Yet insofar as this acceptance is itself understood as

Beyond “Beyond the State” 39

an act of sovereignty on the part of the accepting state, insofar as the force of foreign law is not a matter of right but made to depend on an act of domestic recognition, by this sovereign’s leave, that recognition is already implicitly a claim of infinite jurisdiction, an imperialism of will; it is the act of a monad for whom the law of the whole world appears to it as up to it. This model of the “extended state” exercising jurisdiction over all that lies before it appears within the traditional model in another form as well, which is yet closer to the sort of claims of universal jurisdiction that had been asserted in the Pinochet case. In one of the leading cases concerning the extraterritorial application of criminal law from the early twentieth century, The Case of the S.S. Lotus, the Permanent Court of International Justice (established by the League of Nations) was confronted with the question of whether Turkey had the right to try a French sea captain (who had subsequently come within Turkish territory) for acts committed on a French vessel on the high seas that had resulted in the destruction of a Turkish ship. France argued that international law prohibited a state from exercising criminal jurisdiction extraterritorially except where there was a special “title of jurisdiction recognized by international law.”55 The Permanent Court, however, rejected that claim and insisted that the rule went in the opposite direction: that “the very nature and existing conditions of international law” themselves “dictated” that a state always has extraterritorial jurisdiction, except where exercising jurisdiction would conflict with a specific rule of international law.56 Thus the Court held that while, for example, international law prohibited a state from exercising jurisdiction within the territory of another state, nothing prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad. . . . [The contrary] view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.57

40

jeremy elkins

Summarizing the “general principles recognized by civilized nations” in , the introduction to the special Harvard Law School research volume of the American Journal of International Law described “five general principles on which a more or less extensive penal jurisdiction is claimed by States at the present time.” Among them58 were the broad categories of acts that harmed the “national interest,” and persons who were within its custody.59 The general idea of states as extended entities, reaching infinitely beyond their own borders to the ends of the world, was thus, in a sense, and in several forms, always there. But especially because several of these forms involved acts of forbearance, and because the notion of “national interest” for purposes of exercising a more active jurisdiction was understood in limited ways, the exercise of this jurisdiction was sufficiently narrow that it made little headway against the general view of states as mutually exclusive jurisdictional units. The recent acceleration of globalization potentially challenges the traditional model not by introducing a wholly new conceptual idea of extended states but by pressing the exercise of extended state power. Globalization promotes new patterns of state jurisdictional extension both by altering ideas about what is in the national interest and by increasing the occasions for actions outside the state to have effects within it. The Pinochet case, which is a good example of the first of these, cannot be tied, at least directly, to globalization understood simply as the extension of markets. But if we think of globalization more broadly as the fostering of a civil society that is not coterminous with state boundaries,60 there is little doubt that the development of the idea of universal jurisdiction in human rights law—the idea that there is a national interest in punishing such violations—owes much to an increasing identification with the global community. The Noriega case is one of many possible examples of the second of these, in which, for example, increases in commerce between states, whether licit or illicit, give states more reasons to extend themselves beyond their borders to reach behavior that reaches them. As states find more occasions to extend themselves actively beyond their borders—or put differently, to assume more of that infinite jurisdictional space that they had always laid some claim to in principle—the nature of states changes; for states, like any social being, consist in part in how they act: in how and to what extent they actualize potential ways of being. And the result of this extension is a form of legal globalization that is quite different from that which is portrayed in the loss-of-state-authority picture of globalization.

Beyond “Beyond the State” 41

I have noted that the ability of international tribunals—both ad hoc tribunals such as Nuremburg and those for the former Yugoslavia and Rwanda, and (in different ways) standing tribunals such as the ICC—to exercise jurisdiction still depends to a significant extent on the power of individual states; and that to the extent that this is so, it undermines the legal credentials of such tribunals. Yet to at least the same degree, and potentially to a much greater degree, the globalization of law that involves what I have referred to as the extension of states will tend to produce a legal order that reinforces or exacerbates, rather than undermines, differences in power. For while every state can claim jurisdiction beyond its borders, the ability to exercise that jurisdiction effectively will often depend on the ability either to induce the cooperation of other states or to enforce jurisdiction through extraterritorial “police” actions. And because in each case the law is domestic law, there are fewer constraints here than in the case of international tribunals—the Noriega case is a clear enough example—on using law to pursue other state objectives; and thus more of an opportunity for globalized law to become politics by other means. And so while on the one hand, the extension of domestic law outward may have (as supporters of the Pinochet prosecution have argued) the potential for subjecting raw power to the constraints of law, on the other, the use of domestic law as foreign policy runs the risk not of elevating foreign policy to the rule of law but of demeaning the rule of law ideal in the service of foreign affairs. Given the constraints of space, I have focused on criminal cases, which present the most vivid examples of the model of the extended state. But in terms of the impact on the ordinary course of social life, other forms in which states have increasingly extended themselves, particularly in the area of economic regulation, may be of far greater significance. To take just one example, while the United States has been relaxing its antitrust enforcement, the European Union has been asserting its antitrust jurisdiction over foreign, including U.S., companies that do business in the EU. Some of these regulations fit easily under the traditional sovereign authority to regulate the terms under which foreign companies enter the domestic market. But others have pressed against the limits of the traditional exercise of that right. Thus the EU has successfully asserted the right to review mergers of foreign companies—blocking, for instance, the merger of two entirely U.S.-based companies (General Electric and Honeywell) which had been approved by U.S. authorities, and approving the merger of

42

jeremy elkins

two other U.S.-based companies (Boeing and McDonnell-Douglas) only after they agreed to comply with the EU’s conditions.61 If we think about these cases from the perspective of the U.S. government’s claim to exercise sole jurisdiction over U.S.-based corporations, these may fit easily into the loss-of-state-authority globalization narrative. But they are not a loss of state authority in general; indeed, in an important sense, what they involve is not less state authority, but more, and a conflict between states whose domain is increasingly less limited in practice by their territorial boundaries.

V.  War I have thus far been discussing one side of the traditional distinction between internal and external sovereignty; and I have been focusing on some of the tendencies toward what I have referred to as the extension of the state; or, to say the same thing in a different way, toward the projection or externalization of “jurisdiction” from “inside” to “outside”—as those have commonly been conceived in the traditional model. I now want to turn briefly to the other side of the traditional distinction, where I shall focus on that paradigmatic exercise of external sovereignty: war. We can begin here by noting the significant fact that many of the cases that I referred to in the previous discussion of punishment, whether they were the subject of international tribunals or extraterritorial action by individual states—Nuremberg, Yugoslavia, Rwanda, Pinochet’s Chile, the Argentine and Guatemalan regimes of the same period, Pol Pot’s Cambodia—involved something very much resembling a kind of domestic war. Of course, just as the idea of punishment as essentially “internal” to the state was never absolute in the “Westphalia-Rechtsstaat” conception, neither was the idea of war as involving “external” relations. The most obvious exception is civil war, but uprisings, rebellions, and the responses to them, which fall squarely within the domestic sphere, might also be regarded as having at least some characteristics of war. And, indeed, some of the cases that I have mentioned, most notably Yugoslavia and Rwanda, share some attributes of these traditional domestic military conflicts. Yet even the conflicts in the Balkans and the war in Rwanda were not simply military actions designed to maintain order or protect the functioning of the

Beyond “Beyond the State” 43

state. What they share with the other cases that I discussed in the earlier sections, and with many other familiar cases that I did not (because the means they employed did not subject them to criminal tribunals), is the use of state power (although this is more complicated in the Rwandan case) to engage in what Carl Schmitt referred to as an “existential” conflict: one that, for the perpetrators of the violence (at least) rests on the belief that “in order to preserve one’s own form of existence,” it is necessary to “negate . . . [the] opponent’s way of life.”62 The idea of war as a response to an existential conflict between entities whose forms of life cannot coexist is at home in the traditional conception of interstate relations. For if the state is understood as an autonomous, ethical unity, the possibility must always exist of an irreconcilable conflict between two such unities. (It is, indeed, not too much to suggest that the international rules of war that limit the tactics that can legitimately be used were thought necessary precisely because those are tactics to which the conception of war as an existential fight too easily led.) But in the Westphalia-Rechtsstaat conception of sovereignty, the possibility of foundational, existential conflicts is just part of what distinguishes external relations from internal. (It was an important part of Schmitt’s project to subvert this understanding of the distinction between the logics of inside and outside and for which he has aptly been referred to as a conservative “revolutionary.”)63 In that model, the relation of individuals to the state on the internal side is conceived as one of membership under law, in which differences among groups, however important, are subordinate to that common belonging.64 Indeed, the historical resolution to the great wars of religion—the primary “existential” division between “ways of life”—of sixteenth- and seventeenth-century Europe involved, on the one side, a strengthening of the state externally as an autonomous corporate entity (the principal idea that “Westphalia” has come to stand for) and, on the other, the domestic principle of religious toleration (part of the conception of the Rechtsstaat),65 which in its fullest form meant that (Christian, and later other) religious differences would not turn subjects (later, citizens) into enemies. As Hannah Arendt has written, it was the power of this latter principle, as it was embodied in “the political and legal structure of [the] new body politic,” and which thus required “political and legal equality,” that helps explain the “palpable inconsistency” that at “the height of its development in the nineteenth century,” the nation-state, which “had made nationality a prerequisite for citizenship and homogeneity of population the outstanding

44

jeremy elkins

characteristic of the body politic,” granted even “its Jewish inhabitants equality of rights.”66 It may be tempting to see the kinds of domestic wars that we have witnessed so commonly in the last several decades as latter-day versions of the early modern religious wars, in which certain differences are taken to be so fundamental as to transcend the commonality of membership (and sometimes even—as with the case of the religious wars—the boundaries of the state).67 That comparison, as far as it goes, is not unjustified. But the contemporary state is not the preseventeenth-century state; and the contemporary version of domestic war is better seen not as a reversion to an earlier state but rather (at least in the case of advanced states) as a turning in of the state, in which the highly developed, centralized institutions of the modern state, including (but not limited to) those of the national security apparatus, are turned against internal populations as if foreign states.68 If the developments that I discussed in the last section concern globalization as an externalization of the (traditionally understood) internal side of the state, the disturbing phenomenon of these domestic wars represents what we can term the internalization of the “external” relations of the state—and correspondingly the reduction of members to enemies. To be sure, this turning-in of the contemporary state’s war power is (even beyond the ordinary cases of civil war and domestic rebellion that I have mentioned) hardly a new phenomenon. As the passage from Arendt suggests, the idea of legal equality that is associated with a true Rechtsstaat may come to stand in tension (for Arendt, is a “palpable inconsistency”) with the idea of the state as a manifestation of a pre-existing nation, and the elevation of the latter over the former has commonly enough involved violence against those who, even if formal citizens, are regarded as outsiders to the true nation. But the twentieth century has been marked both by extraordinary and systematic uses of violence in waging such internal wars, and, especially in the latter half of the century, by the number of them.69 As between what I have referred to as the “extension” of the internal side of the state and the internalization of the external side of the state, there is, however, an important asymmetry. For while the former involves the expansion of law into areas that in the traditional model were external to the state’s ordinary assertion of legal jurisdiction, the internalization of war commonly does not involve the replacement of law with war but rather the incorporation

Beyond “Beyond the State” 45

of war into a (at least formally speaking) legal regime. The Nazi war against internal populations proceeded, infamously, through formal legal processes; the ethnic cleansing that took place in the former Yugoslavia followed formal constitutional processes; and many of the most ruthless practices of the Pinochet regime were authorized by the “extremely legalistic bureaucracy of the Chilean Armed Forces70—to mention just a few examples. And yet at the same time, this incorporation of war involves an exclusion of citizens from the protections of the Rechtsstaat, and, whether or not formally denaturalized, their removal from the body politic. The internalization of war thus involves something like the legal establishment of zones of war.71 Here, then, we have a kind of “legal globalization” that is of a very different sort from either the model of international tribunals, or the extension of state jurisdiction. If the first of these involves the appropriation of legal authority by bodies outside of ordinary states, and the second involves projecting the internal side of the state outward, this form of legal globalization involves something close to the opposite of both of these—namely, the introjection of the traditionally lawless spaces of international relations into the legal regime of the state.72  Although the internalization of war has often involved horrific practices, it need not. (The Nazi atrocities against domestic populations, for example, need be thought of as no more a necessary feature of the internalization of war than were the Nazi atrocities against prisoners of war intrinsic to a traditionally “external” war.) Moreover, the internalization of war need not be total; rather, we can observe elements of it existing alongside, and often in tension with, the ordinary constitutional processes of the Rechtsstaat. Indeed the internalization of war is itself part of the defining characteristic of what has commonly been termed the “national security state” (although this is not the only area it which it appears),73 and the growth of that state can to a great extent be measured just in terms of how far the model of war has been carried internally. As an illustration of how the internalization of war can appear within and alongside that of the Rechtsstaat, I shall consider briefly the most significant recent chapter in the evolution of the national security state in the United States: the internalization of the “war on terrorism,” particularly as it was being devised during the George W. Bush administration. As with the other developments that I have discussed, I shall focus not only on the specific measures successfully instituted but also

46

jeremy elkins

on the underlying logic that they suggest—and that in the case of the Bush administration was often explicitly asserted. And as with some of the other developments that I have discussed, the extent to which these should raise concern depends on how far that logic comes to be pressed. Immediately following the attacks of /, the Bush White House requested from Congress carte blanche authority to “deter and pre-empt any future acts of terrorism or aggression against the United States.”74 While Congress declined to include that broad language in the body of its resolution—which authorized the president to use force “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of /—it adopted that language (albeit limited to “international terrorism”) in the preamble.”75 And relying on both that resolution and a claim of inherent executive power, the administration has argued that the president has broad authority to conduct a general war against terrorism.76 Two months after the attacks, and claiming authority as commander in chief “by the Constitution and laws of the United States . . . including the Authorization for Use of Military Force,” President Bush issued an executive order establishing a system for military detention and trial of “Certain Non-Citizens in the War Against Terrorism.”77 The order began with a set of findings concerning the existence and danger posed by “international terrorism” and the necessity of “identify[ing] terrorists . . . disrupt[ing] their activities, and . . . eliminat[ing] their ability to conduct or support such attacks”; and formally declaring that “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.”78 Nowhere did the order define, or refer to a definition of, terrorism. There is, in fact, no internationally accepted definition of terrorism. The closest that we have is that contained in the “International Convention for the Suppression of the Financing of Terrorism,” which refers to acts “intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”;79 and similar language has been recommended by a High-Panel of the U.N. as a general international definition.80 The president’s order, however, did not limit military

Beyond “Beyond the State” 47

jurisdiction to such actions. Rather, it described those acts of “international terrorism” subject to military jurisdiction broadly as those that “have caused, threaten to cause, or have as their aim to cause, injury or adverse effects on the United States, its citizens, national security, foreign policy, or economy.”81 And it asserted that jurisdiction equally to actions undertaken by aliens residing in the United States and abroad. After four and a half years, the administration’s system of military commissions was invalidated by the U.S. Supreme Court,82 but on statutory grounds; and in response, Congress adopted the Military Commissions Act of . That act, although widely publicized as constraining the president’s authority, in fact used yet broader language than even the initial presidential order. For while the president’s order was ambiguous as to whether international terrorism was to be defined just as acts that caused such injury, adverse effects, and so forth, or whether instead it required a showing both of international terrorism (whatever that meant) and that the perpetrated act had caused harm to the United States, etc., the Military Commissions Acts dropped the requirement of terrorist activity altogether as a condition of detention and trial.83 Instead, it authorized holding any alien in military custody whom the military determined to be an “unlawful enemy combatant,” which the act defined broadly as a nonsoldier who engages in “hostilities against the United States” (the meaning of that phrase was left undefined); and it authorized the use of military commissions to try, at the discretion of the administration, any such person who has allegedly engaged in, whether on foreign or U.S. soil, any one of a wide range of what would otherwise be treated as ordinary domestic crimes, including what the act (adopting military terminology to describe such crimes) termed “attacks” on individual persons and property.84 The extent of the government’s constitutional authority to detain aliens and to subject them to trial by military tribunals had not, by the end of the Bush administration, been definitively resolved by U.S. courts.85 And to the extent that it had not, it was the executive’s view, only rarely limited by Congress, and for the first five years after the / attacks often endorsed by Congress, that shaped U.S. legal practice. While the Bush administration refused to offer a general public statement of its view of its constitutional authority, that view can be pieced together fairly clearly from a series of administration documents and statements. The first piece is found in a September , , memo issued by the Office of Legal Counsel—a memo now generally regarded as reflecting the view of the

48

jeremy elkins

White House at the time it was written. Issued in response to an administration request for an opinion on the president’s authority “to take military action in response to the terrorist attacks on the United States on September , ,” the memo, after quoting Hamilton that as “the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority, which is to provide for the defense and protection of the community in any matter essential to its efficiency,” concluded that the president “as Commander in Chief and the sole organ of the Nation in its foreign relations,” has the authority to “deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September .”86 The second piece is reflected in the November  presidential order establishing military tribunals, and in the Bush administration’s brief in the Padilla case, both of which claimed that this broad presidential authority extended beyond the use of military force in the narrow sense of committing troops, to that of protecting the nation from threats to its national security from wherever they might emanate, including “seiz[ing] and detain[ing]” “enemy combatants” either domestically or in foreign military actions (Padilla was seized at O’Hare Airport).87 The third piece is also represented in the administration’s brief in the Padilla case, which argued that the president’s authority to seize, detain, and try those whom it labeled enemy combatants was not limited to aliens (Padilla was a U.S. citizen).88 And the fourth piece, which appears in several of these documents and as well in the Bush administration’s brief in Hamdi v. Rumsfeld (which raised the question of what process was due to a U.S. citizen taken in Afghanistan and detained as an enemy combatant in a South Carolina naval brig), is that the relevant war was neither the war in Afghanistan nor even the confrontation with al-Qaeda, but the war on terrorism.89 Putting these together, then, we get the broad legal claim that in fighting an (undeclared) war on terrorism, the president has essentially unlimited authority to seize, detain, and try through military tribunals (established and structured on the president’s unilateral authority) both aliens and citizens whom the president deems to have committed, or to be a threat to commit, what the administration deems to be terrorist activities, including “attacks” on civilians or property (that is to say, actions otherwise known as criminal assault, vandal-

Beyond “Beyond the State” 49

ism, or any number of otherwise ordinary crimes) that cause “adverse effects.” The Bush administration did not have the occasion to press this understanding to its full conclusion, and the courts have suggested that it would have a difficult time doing so. But in a number of ways, that administration’s broad view of executive authority to internalize the war on terrorism was not only adopted by Congress in the Military Commissions Act, but was successfully implemented beyond the system of military detention and trial. As we now know, the Bush administration had for years engaged in, without congressional authorization, surveillance of telephone calls, emails, and Internet usage of both citizens and noncitizens. And in the immediate aftermath of /, the Bush administration wrote and succeeded in pushing through Congress the USA PATRIOT ACT, an explicitly antiterrorist measure—its title is an acronym for United in Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism—which gave the FBI broad authority to obtain documents and any other “tangible things” in an investigation of both citizens and noncitizens, simply by asserting that it was doing so to “protect against international terrorism or clandestine intelligence activities” and without the need to provide any evidence to a court supporting its claim.90 The term “clandestine intelligence activity” was left undefined, while international terrorism was, for the purposes of the act, defined broadly to include any activities that “appear to be intended” to “influence the policy of a government by intimidation or coercion” (those terms are undefined as well) if they “involve” acts “dangerous” to human life (there was no requirement of mens rea: of an intention to endanger human life, of reckless disregard of human life, or even of a failure to take reasonable care to prevent endangerment to human life) that violate any “of the criminal laws of the United States or of any State,” (whether or not the violation was for the purpose of “intimidation or coercion,”) if either the action “transcends national boundaries,” or the perpetrator “operates” across international lines.91 And section  of the act applied the same definition without the international component to a new category of “domestic terrorism.” How this language might be interpreted and applied remains to be seen. (While the Obama administration has dropped the language of a war on terrorism and has withdrawn the memos of the Office of Legal Council, the statutory language remains, and a future administration could easily revive the broad legal claims that the Bush administration made.) But on a broad reading

50

jeremy elkins

of such terms as “coercion” and “dangerous,” it could easily end up including civil disobedience and other forms of protest that directly or incidentally involve violating some federal or state law. (It is hard to imagine that had this definition of domestic terrorism been available during the civil rights movement, it would not have been construed by the Hoover FBI to include the use, in Martin Luther King’s words, of “direct action . . . to . . . create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue.”)92 And during the G. W. Bush administration, as well as during the Reagan and G. H. W. Bush administrations, there was a clear move to include within terrorism socially disruptive actions, challenges to constituted authority, and “extremist” ideologies.93 Thus during the first Bush administration, the attorney general established what is still the FBI’s definition of terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.”94 And in , the FBI’s counterterrorism division moved in the direction of giving the language of domestic terrorism a very broad reading by describing Greenpeace’s cutting of drift nets used by commercial fishing operations as an example of terrorism, and defining what it called “eco-terrorism” generally as any “use or threatened use of violence of a criminal nature against innocent victims or property by an environmentally-oriented subnational group for environmental-political reasons, or aimed at an audience beyond the target, often of a symbolic nature.”95 If pursued in this direction, the war on terrorism would come to include among domestic enemies those whose violations of the ordinary criminal law are motivated by a desire to influence governmental policy.96  The tendency to turn the war on terrorism inward is, as I have said, just one other version of the broader phenomenon of the internalization of war. But the latter is itself merely one form of a yet broader phenomenon in which the traditionally external side of state sovereignty is turned back in on the domestic state. Just as the earlier discussion of the externalization of criminal punishment was intended merely as a particularly vivid example of the tendency to press outward the traditional internal jurisdiction of the state, so the discussion here of the internalization of war is intended merely as a particularly poignant example of the opposite tendency: to introject within the state the external side of tradi-

Beyond “Beyond the State” 51

tional state sovereignty. In the case of the latter as in the case of the former, there are important other developments that a longer discussion would explore. One of these, which I can only mention here to suggest the character of some of these other developments, is the increasing importance of international trade agreements in structuring the terms of domestic life. This is a very different form of the internalization of external relations from that of war. Indeed, some will argue that it is not a form of internalization at all, but a standard case of the exercise of a state’s sovereign external authority to structure the relations with other states. That is so, however, only if we treat the state as a whole; and it is in that regard worth remembering that in the development of the modern republican state the power to engage in foreign relations (what Locke referred to as the “federative power”) was considered a very different kind of power from the legislative authority to govern internal affairs. In many contemporary states, that difference is still reflected in the constitutional structure: while the national legislature may have authority to ratify international agreements, the details of those agreements are typically negotiated by executives; and in federalist systems, state or provincial authorities generally have little or no role at all to play in the formation of such agreements. As the scope of international agreements expands, and as domestic life comes to be governed more extensively by such agreements, the internal constitutional order will tend increasingly to be altered to reflect external relations. Relations between states, that is to say, become increasingly reflected in the organization of and within states; and it is in this sense that we can speak once again of the introjection of external relations into domestic governance:97 the world order transposed in the domestic order. This leads directly to a final point. One of the most significant constitutional consequences of both the externalization of domestic law and the internalization of foreign relations is the expansion of executive power. Globalization is not the only force responsible for this expansion, but it is an important one, and it has raised, and rightly raises, democratic-constitutionalist concerns. There is not the space here to explore these, but they ought to be central to the attention that we give to the phenomenon of (and high on the agenda of research about) legal globalization. For the purposes of this essay, the relevant point is that, as against the conception of globalization as a net loss of state power, what these developments involve is, in part, a shift in power within the state from some actors to others, and in particular an expansion of executive power through its traditional prerogatives in foreign affairs.

52

jeremy elkins

VI.  Conclusion My aim in these pages, as I indicated at the beginning, has not been to offer a comprehensive theory of legal globalization. Instead, what I hope to have done is to bring together a number of developments, each of which has been written about individually, but whose collective character has perhaps not been sufficiently appreciated, to suggest several aspects of globalization that are very different from its common representation as involving a loss of state authority with respect to law. As with all political developments, those that I have discussed here will affect different states in different degrees, and their impact on the effective use of state power will depend on the particular aims of particular states and on the particular resources that particular states can bring to bear in advancing their agendas. But there is no reason to think in general that legal globalization inherently involves a net loss of state authority. There are some developments that may result in just that. But in important ways globalization may involve not a general loss of state authority but a reconstruction of the identity of states, in which “inside” and “outside,” rather than referring to the boundaries of the state, stand in a relation of complex interpenetration; in which the character of states is marked by a simultaneous projection of the domestic onto the world and introjection of the world into itself.

Notes . Most prominently, the International Criminal Tribunal for Rwanda, and the International Criminal Tribunal for the former Yugoslavia. In addition to these international ad hoc tribunals, there have been several joint national-international tribunals proposed or established, including the Special Court for Sierra Leone, the Special Tribunal for Cambodia, and the proposed Special Tribunal for Lebanon. . In , just as the Nicaraguan government was preparing to file suit in the International Court of Justice to challenge the U.S. intervention in that country, the Reagan administration purported to withdraw the U.S. from the jurisdiction of the Court for a period of two years concerning matters in Latin America. Although the ICJ ruled that the United States could not withdraw on three days’ notice, it did recognize a right to withdraw with reasonable notice (Case Concerning Military and Paramilitary Activities in and against Nicaragua [Nicaragua v. United States], November , , para. ,  I.C.J. ,  I.L.M.  []). Despite the ruling, the administration announced in January  that it would not participate in the proceedings on the merits. In , the

Beyond “Beyond the State” 53

Bush administration withdrew from the “Optional Protocol to the Vienna Convention on Consular Relations” after the ICJ ruled against the United States. . James Madison, letter to George Washington, October , , reprinted in Michael Kammen, ed., The Origins of the American Constitution: A Documentary History (New York: Penguin, ), . . Thomas Hobbes, Leviathan (London: Penguin, ), I.xiii, xiv. . The term “projection” is not meant here in the standard psychoanalytic sense of identifying as part of the external world an attribute or object found within. The idea of projection here is rather what I shall later refer to as the “extension” of the state. The idea of “introjection” as used here is closer to the psychoanalytic meaning of taking inside an attribute or object originally found without, and more specifically involves, as I shall discuss, the incorporation of relations once conceived as essentially external. . I use the term “Westphalia” as it has been often used and without worrying about the historical accuracy of the term: to refer to the idea of the state as an essentially complete political system and, conversely, to the principle of nonintervention in the affairs of other sovereign states. . Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbet (Cambridge, U.K.: Cambridge University Press, ), para. , , emphases in original. . John Locke, Second Treatise, in Two Treatises of Government (d edition), ed. Peter Laslett (Cambridge, U.K.: Cambridge University Press, ), iii.. . Hegel, Philosophy of Right, para. . . In contrast to jus ad bellum, which concerns the justification for war. . For some isolated exceptions, see Timothy L. H. McCormack, “From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime,” in Timothy L. H. McCormack and Gerry J. Simpson, The Law of War Crimes: National and International Approaches (The Hague: Kluwer Law International, ). . The distinction between punishment as involving relations internal to the state and war as involving external relations has been challenged at a more fundamental level from the other direction by some theorists, notably Carl Schmitt and, building on him, Giorgio Agamben, who have argued that the modern state itself simply represents a condition of war internalized. The Hobbesian model of the sovereign as possessing absolute authority while also “bearing the person” of each member of the society (Leviathan, xviii:) already suggests the limiting case of the distinction between punishment and war; for if, on the one hand, it can be said that the introduction of a sovereign power ends the state of war among members of civil society and that the sovereign cannot make war on subjects because “every particular man is” himself “Author of all the Soveraigne doth,” (ibid., xviii:), on the other hand, the sovereign may treat a subject as an enemy, even “Banish[ing] his Subject,” during which time, “he is not Subject,” but a “lawfull enemy

54

jeremy elkins

of the Common-wealth” (ibid., xxi, xxiii). For Schmitt, however, war against a subject is not merely the limiting case of domestic politics, but constitutive of it. The essential political distinction is between friends and enemies; and if, as Hobbes says, “the nature of war consisteth not in actual fighting, but in the known disposition thereto during all the time there is no assurance to the contrary” (ibid., xiii), then politics, in the Schmittian account of it, remains a state of war: for as between friends and enemies, civil war must remain an “ever present possibility” (The Concept of the Political [Chicago: University of Chicago Press, ], ). The state of nature, then, as Agamben takes up the point, is not replaced by the civil state, but incorporated by it. “Contrary to our modern habit of representing the political realm in terms of citizens’ rights, free will, and social contracts,” the basic political relation “from the point of view of sovereignty,” Agamben argues, is the state of nature (Homo Sacer [Stanford: Stanford University Press, ], ). For if the sovereign is, as Schmitt has it, “he who decides on the exception,” the system of legal rules is always contingent and is in part constituted by the always-existing possibility of being suspended. And the sovereign capacity to decide on the exception is nothing less than the capacity to strip subjects of their legal persona, and to reduce them to “bare life,” which “more precisely” than a “war of all against all” is the real condition of “the Hobbesian state of nature.” This suspension of the law is not, Agamben insists, simply an exception to the law, but rather that which the legal order presupposes; and the state of exception is thus not quite a regression to a prepolitical state but an actualization of what is constitutive of sovereignty and political life. It is “only bare life [that] is authentically political,” and it is the sovereign capacity “to do anything to anyone” that is the “originary structure” and “the threshold that constitutes and dwells within” “the law of the city.” The “state of nature is not a real epoch chronologically prior to the foundation of the City but a principle internal to the City, which appears at the moment the City is considered tanquam dissoluta, ‘as if it were dissolved’” (ibid., , – [emphases removed]). It is not possible within the scope of this paper to give proper consideration to these claims, which would include taking up such questions as whether there is an essential political distinction, and a truth of the state or sovereignty; whether the sovereign, indeed, has the capacity to suspend “the law,” and, if so, what sort of capacity that is; and still further whether, if both of these are true, that capacity constitutes the truth of the state and sovereignty. We can set these questions aside because our primary concern here is not with the ontological truth (whatever that might mean) of the state (or particularly of the modern Rechtsstaat) and of sovereignty, but with how these have been imagined, and with the implications, or potential implications, of some developments in the globalization of law for traditional ways of conceiving of the state and its relation to law. To the extent that one accepts the Schmittian-Agambenian account of the essential character of the state and sovereignty, one will see some of these developments as actualizing or making explicit what has always been present (as Agamben himself sees

Beyond “Beyond the State” 55

contemporary biopolitics and “the camp” as manifest expressions of what has always been the constitutive character of political life). But they need not be thought less significant for that reason. And insofar as the character of the state is partly constituted by how it is understood, the developments on which I shall focus here must be considered as potentially altering the state and its relation to law. . Charter of the International Military Tribunal, August , , Articles  and . Some of the defendants were also charged with violating international treaties. . In addition to the provision for reparations (Article  and following), the Versailles Treaty provided for the trial of the former kaiser, William II, on charges of offending “international morality and the sanctity of treaties” (Article ), and declared acceptance by the German government of “the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war” (Article ). . Only thirteen German soldiers were ultimately convicted, and they were given very modest prison sentences. The trial of Kaiser Wilhelm was prevented by The Netherlands, where he had fled and which “to everybody’s relief . . . refused to surrender him to the victorious powers.” Istvan Deak, “Misjudgment at Nuremberg,” New York Review of Books , no.  (October , ). . Ibid. . Thus, for example, “crimes against humanity” were defined only as “atrocities and offenses” that “include[ed],” but were specifically said not to be “limited to,” “murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.” Control Council, Law No. , Article II..(c). The specific charter of the military tribunal eliminated some of the “including, but not limited to” phrasing, but it left that language in the “war crimes” provision, and made no attempt to further specify such terms as, for example, the “ill-treatment” of civilians and prisoners of war, “inhumane acts,” and “military necessity” (Constitution of the International Military Tribunal). . Deak, “Misjudgment at Nuremberg.” . Many of these are noted in ibid., in which Deak argues that the defendants could successfully have been tried under the German criminal law itself, although not, of course, on the range of charges for which they were indicted. For discussions of some of the rule of law questions raised by such tribunals, see, generally, Judith Shklar, Legalism: Law, Morals, and Political Trials (Cambridge, MA: Harvard University Press, ). . Notably, the latter does not require that the acts specified be committed as part of an “armed conflict,” but only a “widespread or systematic attack.” . Article . Emblematic of the concern with establishing the elements of crimes in

56

jeremy elkins

advance, the charter of the ICC provides that the tribunal will have jurisdiction over the crime of aggression only after it has been defined by amendment (Article ). . Part III, Articles  and . . Article . The United States has concluded bilateral treaties with about  of the  states that are signatories to the Rome Statute. The “American Service-Members Protection Act” of  prohibits any agency of the United States from participating in an investigation by the ICC without presidential consent, prohibits military aid to most countries that have not signed Article  agreements, and authorizes the president “to use all means necessary and appropriate to bring about the release” of U.S. prisoners detained by the Court. . Of the five permanent, and veto-wielding, members of the Security Council, China was never a signatory, Russia’s signature was never ratified, and the signature of the United States, also never ratified, was withdrawn by the Bush administration. . Security Council Resolution . For an argument that Resolution  will undermine the ICC, see Heather Cash, “Security Council Resolution  and Conflicting Principles of International Law: How the Future of the International Criminal Court Is at Stake,” Brandeis Law Journal  (Spring ): . In , the United States, after insisting that it would otherwise continue to veto a renewal of the peacekeeping mission in Bosnia, successfully pushed through the Security Council a resolution (permitted under Article  of the Rome Statute) preventing prosecution of nonparty nationals for a year. The prohibition was renewed the followed year as Resolution , which also stated the Security Council’s intention to renew it annually, although in the wake of the revelations of the Abu Ghraib atrocities in , the Security Council declined to do so. The U.S. opposition to the Rome Statute was explicitly grounded on the traditional model of state sovereignty. And the “American Service-Members’ Protection Act” asserted in the strongest terms the model of international law as a treaty between states: “It is a fundamental principle of international law that a treaty is binding upon its parties only and that it does not create obligations for nonparties without their consent to be bound. The United States is not a party to the Rome Statute and will not be bound by any of its terms. The United States will not recognize the jurisdiction of the International Criminal Court over United States nationals” (Section  []). . Just as the European Union has developed from the idea of a common market to a quasi-state, and is likely to develop further in that direction, so the ICC may well come to take on a life further removed from its origins in a treaty of, and to a great extent as a delegate of, sovereign states. . An International Criminal Court was first proposed in , in the midst of the (second phase of the) Nuremberg trials and the Tokyo War Crimes Tribunal, but the U.N. work on these was halted because of disagreements in , and did not resume until .

Beyond “Beyond the State” 57

. The Spanish extradition request was later joined by requests from Belgium, France, and Switzerland. . Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Philadelphia: University of Pennsylvania Press, ), . . Although the charges against Pinochet were originally limited to injuries perpetrated against Spanish citizens, these were later amended to include victims from other countries. Richard J. Wilson, “The Spanish Proceedings,” , and “Spanish Request to Arrest General Pinochet” (Doc. ) in Reed Brody and Michael Ratner, eds., The Pinochet Papers (The Hague: Kluwer Press, ). . As a practical matter, of course, the ability of states to press extraterritorial claims will often depend on the cooperation and law of other countries, including extradition treaties and the international obligations that are recognized by domestic law. In the Pinochet case, Home Secretary Jack Straw, applying the domestic rule that only acts that would be criminal under both British law and the law of the extraditing country would be extraditable, refused the authority to proceed on the genocide charges. (Parliamentary Records, December , , reprinted in Brody and Ratner, Pinochet Papers, –.) And in Pinochet III, the Law Lords held, under the same rule, that Pinochet could not be extradited for acts committed as head-of-state except for those acts of torture committed after the UK Criminal Justice Act of , Article , which specifically (in accordance with the U.N. Convention against Torture) established universal jurisdiction for torture and included public officials within its scope. Yet a state’s ability to enforce its criminal laws universally will not always depend on the cooperation of other states. Not only will states sometimes be able to apprehend the subject of a warrant on their own territory, but those states that have the ability and willingness to do so may circumvent extradition laws by forcibly abducting criminal suspects—as Israel did with Adolf Eichmann, and as the United States has done in a number of cases. (The kidnapping of suspects as an alternative to extradition was approved by the U.S. Supreme Court in United States v. Alvarez-Machain [ U.S.  ()]. In that case, the U.S. arranged for the kidnapping of Alvarez-Machain on suspicion of having participated in the torture and death of a DEA agent, after the Mexican government refused to extradite him. He was ultimately acquitted of the charges and successfully sued one of his kidnappers for emotional damages.) . U.N. Convention on the Prevention and Punishment of the Crime of Genocide, Article ; U.N. Convention against Torture, Article . The convention against torture also authorizes, but does not require, signatory states to establish jurisdiction over acts of torture that are committed against their nationals. The text of the convention, however, is ambiguous as to whether a state has an obligation to establish jurisdiction over an alleged offender present in its territory only when it refuses extradition to a country that itself has jurisdiction based on the criteria enumerated; or whether it has an obligation

58

jeremy elkins

to establish jurisdiction if it refuses to extradite to any country that has asserted jurisdiction over the individual charged. In the Pinochet case (“Pinochet III”), the House of Lords, relying on the drafting history, interpreted the convention as adopting the latter view—that is, as establishing with respect to any extradition request for the crime of torture the principle “aut dedere aut punire—either you extradite or you punish.”  A.C.  (H.L. ), . . The Court did not feel it necessary “to examine whether the crime of torture is, in our law, an offense subject to international prosecution,” since the “trial will necessarily have to reach crimes of torture in the context of genocide” anyway. Order of the Audiencia Nacional, . However, because British Home Secretary Jack Snow subsequently refused to allow extradition to proceed on the genocide charges, the British courts ultimately focused on the torture charges independently of the genocide claim. . In seeking to strengthen the grounds for extradition, Judge Baltasar Garzón, the judge who had issued the original charges against Pinochet, later added a charge of intent to destroy a group based on its atheistic or agnostic views. Wilson, “The Spanish Proceedings,” . . Order of the Audiencia Nacional, – (italics mine). . Ibid., . It is unclear to what extent the Court also relied on the idea that the convention itself “takes on life by virtue of the successive signatures and accessions to the treaty by members of the United Nations who shared the idea that genocide was an odious scourge that they should commit to preventing and punishing” (ibid.). International tribunals, however, have not themselves adopted the broader view of genocide; and even to the extent that it is thought that Spain was merely interpreting the U.N. convention, it is the Spanish interpretation, whether or not accepted by other states, that is taken to be relevant. . Spanish Criminal Code, –. Wilson’s translation (“The Spanish Proceedings,” ). . Order of the Audiencia Nacional, –. . The Court suggested, but did not decide, that the amnesty law might also be considered contrary to jus cogens—fundamental and peremptory principles of international law that cannot be altered even by treaty. It thus had at least a plausible basis for deciding the issue on international law grounds, rather than, as it did, on grounds of domestic law. . Others include Belgium’s indictment of former Chadian dictator Hissène Habré (“Belgium Indicts Chad’s Ex-Leader,” New York Times, September , ), and several other Spanish indictments: of Ricardo Cavallo, a former Argentine navy officer who was successfully extradited from Mexico to face Spanish charges of killing and torturing dissidents during the military dictatorship; of members of the Chinese leadership on charges of genocide in Tibet; and of former Guatemalan generals and de facto heads

Beyond “Beyond the State” 59

of state Óscar Humberto Mejía Victores, José Efraín Ríos Montt, and Pedro García Arredondo. . “Canadians Surprised by Proposal to Extradite Pol Pot,” New York Times, June , ; “Death of Pol Pot: The Inner Circle: U.S. Wants to Try Khmer Rouge Leaders,” New York Times, April , . . “Death of Pol Pot.” . The secretary was Lt. Col. Luis Del Cid. . The precise charges were engaging in a pattern of racketeering activity; importing and conspiring to import cocaine; distributing cocaine; aiding and abetting in the manufacture of cocaine destined for the United States; and causing interstate travel and use of facilities in interstate commerce to promote an unlawful activity. U.S. v. Noriega,  F. Supp.  (), . . “The Pitfalls of Universal Jurisdiction,” Foreign Affairs, July/August, . .  F. Supp., –. While the Court held that the application of criminal law to extraterritorial actions that produced effects within the United States was a “traditional principle . . . of international law,” the sources that it cited were either U.S. cases or references to treatises that merely cited the usual practices of states (). . Ibid., . .  F.d.  (), . . Ibid., . . Gottfried Wilhelm Leibniz, Monadology, in Monadology and Other Philosophical Writings, ed. and trans. Robert Latta (Oxford: Oxford University Press, ), §. . That is, it does not imply a shrinking of the authority of the state per se. What it will often mean in practice is—as I noted in the case of international tribunals—the increase in power of some states over others. . Like the courts of many countries, U.S. courts have held that domestic legislation ought to be construed when possible in accordance with international law (“an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ,” Murray v. Schooner Charming Betsy,  U.S. [ Cranch] [], ; and see Restatement [Third] Foreign Relations Law, §), but that where legislation clearly repudiates international rules, the courts will nonetheless give it effect (Restatement, §). This, to be sure, is, in part, a matter of what domestic courts will enforce, which can be distinguished from what international obligations apply; and domestic courts have themselves commonly recognized the existence of international obligations that they will not enforce. (To take the United States once again as an example, U.S. courts have held that while “a subsequent act of Congress may supersede a rule of international law or an international agreement as domestic law,” still “the United States remains bound by the rule or agreement internationally” [ibid.].) But it is not only a question of en-

60

jeremy elkins

forceability. Even with respect to those general principles of international law that are recognized by states as directly enforceable in their tribunals, it is some such recognition by the state that, at least from the perspective of the state, renders those principles part of domestic law, and only to the extent that they are so recognized. Statements of international law have themselves commonly reflected the infinite sovereignty of states to determine their own jurisdiction. As one commentator has put it: [T]he effect of looking first to international case law for some insight into the proper bounds of a state’s judicial or legislative reach is rather jarring; there is an immediate reference back to the domestic case law and the place of the particular jurisdictional question in the state’s own legal system. It is as if the nature of sovereign statehood itself compels international discourse to answer any challenge to sovereign power by deflecting the issue away from a consideration of universal norms and back to the state’s own concept of sovereign jurisdiction. Edmund M. Morgan, “Criminal Process, International Law, and Extraterritorial Crime,” University of Toronto Law Journal , no.  (): . . For a nice set of illustrations and examination of this tension, see, generally, Morgan, “Criminal Process.” .  U.S.  (), – (quoting Justice Story, Conflict of Laws, and Chief Justice Taney in Bank v. Earle). For a discussion of the tension in Hilton v. Guyat between the idea that comity is required by international law and the idea that it is domestic law that determines the force of international law, see Joel R. Paul, “Comity in International Law,” Harvard International Law Journal  (Winter ): ff. . A translated version of the decision is available at http://www.worldcourts.com/ pcij/eng/decisions/.._lotus, accessed //. . Ibid., . . Ibid., –, emphasis added. . Along with jurisdiction over acts committed in its territory, by its nationals, or against its nationals. In addition, states have long recognized universal jurisdiction against so-called enemies of mankind (Hostes humani generis)—paradigmatically, pirates. . “Introductory Comment,” American Journal of International Law  (): Supplement: Research in International Law. The former of these has often been divided between crimes committed against “the security, territorial integrity or political independence” of a state (“Draft Convention on Jurisdiction with Respect to Crime,” Article , ibid., ), and crimes, wherever the perpetrator is located, that have effects domestically, which the draft convention described as “participation outside [a state’s] territory in a crime committed in whole or in part within its territory” (Article , ibid., ).

Beyond “Beyond the State” 61

In the United States, the Restatement (Third) of Foreign Relations Law § holds that “a state has jurisdiction to prescribe a rule of law with respect to ()(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory,” as well as “() certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.” . As with the expansion of international markets, the growth here is—one hopes needless to say—not ex nihilo but a matter of degree. The idea of universal standards of human rights has, as I have already mentioned, ancient roots, as does the idea of a jus gentium, which takes on further meaning in the early modern period. And the idea of a human society beyond state boundaries has a long ancestry as well, both before and after the Enlightenment versions of it. But differences in degrees can be differences in kind, and unless we are to dismiss all talk of globalization, we are necessarily talking about such matters of degree. . For a discussion of these cases and others, see David J. Feeney, “The European Commission’s Extraterritoriality Jurisdiction over Corporate Mergers,” Georgia State University Law Review  (Winter ): . . Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, ), . . See, for example, Richard Wolin, “Carl Schmitt: The Conservative Revolutionary: Habitus and the Aesthetics of Horror,” Political Theory , no.  (August ). . Hegel, Philosophy of Right, §§–, §–. . Our concern here, as I have said, is not with the historical terms of the Peace of Westphalia, but the idea for which Westphalia has come to be taken. But it is worth noting that the Peace of Westphalia itself was in part at odds with this conception of a Rechtsstaat; and Hegel himself criticized the Peace of Westphalia for identifying the state with the religion of the sovereign without recognizing the principle of freedom of conscience. “The German Constitution,” in Hegel, Political Writings, ed. Dickey and Nisbet, trans. Nisbet (Cambridge, U.K.: Cambridge University Press, .) . Hannah Arendt, Origins of Totalitarianism (New York: Schocken Books, ), –. . For example, one of the charges against Pinochet was participation in “Operation Condor,” an international campaign of terror directed against Latin American leftism. . In a similar vein, Richard Wolin writes that in the thought of Schmitt and other “conservative revolutionaries” and in “Nazism’s triumph” itself, we find not “a disdain of modernity simpliciter,” but “simultaneously . . . an assimilation of technical modernity and a repudiation of Western political modernity: of the values of political liberalism as

62

jeremy elkins

they emerge[d] from the democratic revolutions of the eighteenth century.” Wolin, “Carl Schmitt: The Conservative Revolutionary,” –. . I leave aside the complicated question of when to treat forced population transfers as among these internalizations of war. For a partial list of such transfers, see Jennifer Jackson Preece, “Ethnic Cleansing as an Instrument of Nation-State Creation: Changing State Practices and Evolving Legal Norms,” Human Rights Quarterly , no.  (): –. . Genaro Arriagada Herrera, Pinochet: The Politics of Power, trans. Nancy Morris (London: Unwin Hyman [Routledge], ). . At the extreme, this may involve what Agamben has referred to as the “camp”— the reduction of persons to what he calls “bare life.” But it need not; and in light of the near-universal rejection of the notion that states have unlimited authority within their territories and the corresponding claims of universal jurisdiction to prosecute human rights violations, it is hardly obvious—to return to a point made earlier in these notes—that the camp should be said to be the truth of the modern state. In support of the idea that these legalized zones of exclusion should nonetheless be seen, at least in part, as spaces of war, it is relevant that many of the standards now considered universal standards of human rights—for example, the prohibition of torture—were initially articulated as rights of prisoners of war. . One very important difference, however, between international relations and this internalized version of it is that, in the former, nonmembers of one state are commonly recognized as having some kind of protected status by virtue of being a member of another state, whereas the latter often involves the creation of stateless persons. . Over the past several decades, the language of war has been used in (especially) the United States to frame the response to a variety of social problems, and in some cases, the state’s relation to certain domestic populations—particularly in the “war on crime” and the “war on drugs,” where it easily hovers between the metaphorical and the literal. I explore the use of the war model in “The Model of War,” Political Theory , no.  (April ), which I regard as a companion essay to the present one. . CQ Daily Monitor, Friday, September , , ; U.S. Congress, Congressional Record, th Congress, st session, Senate, S–S [daily edition]. . “Authorization for the Use of Military Force,” PL –, . . In Rasul v. Bush, the government characterized the congressional resolution as “emphasiz[ing] . . . that ‘the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States’” ( WL , ). In his statement accompanying the signing of the Authorization for the Use of Military Force, President Bush described his authority in terms of “terrorism” yet more broadly: Senate Joint Resolution  recognizes the seriousness of the terrorist threat to our Nation and the authority of the President under the Constitution to take action to deter

Beyond “Beyond the State” 63

and prevent acts of terrorism against the United States. In signing this resolution, I maintain the longstanding position of the executive branch regarding the President’s constitutional authority to use force, including the Armed Forces of the United States and regarding the constitutionality of the War Powers Resolution. Our whole Nation is unalterably committed to a direct, forceful, and comprehensive response to these terrorist attacks and the scourge of terrorism directed against the United States and its interests. (Available at http://georgewbush-whitehouse.archives.gov/news/releases///-.html, accessed //) The White House Office of Legal Counsel asserted that “the President has the constitutional power . . . to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States,” as well as “to prevent and deter future assaults on the Nation” (Memorandum Opinion for the Deputy Counsel to the President, “The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them,” available at http://www.usdoj.gov/olc/ warpowers.htm, accessed //). Although the administration has often spoken of “international” terrorism, the term “international” in general is ambiguous. It can refer to the relation between nations or to actions that are transnational or global. The distinction between these two is less clear in the case of terrorism, because terrorist actions are often perpetrated by nonstate actors, aimed at civilian populations, and launched geographically from within the states where the attacks occur rather than on a standard battlefield. Still, there is an important difference between a war against international terrorism as aiming at certain groups that operate internationally or that are a part of an international network, and a war against international terrorism as aiming at a kind of action or tactic that is “global” only in the sense of being used in many parts of the world. Internalizing the war on terrorism has relied in part on eliding this difference, an elision that becomes far more significant when the definition of terrorism is expanded, as it has been in the United States, beyond its ordinary understanding to include ordinary crimes and acts, including some that might not be criminal at all, into acts of war. .  FR  (November , ). . Ibid., Section (d), (f). . United Nations Resolution /, adopted by the General Assembly on December , . . The Secretary-General’s High-Level Panel on “Threats, Challenges, and Change” defined terrorism as “[a]ny action . . . [that] is intended to cause death or serious bodily harm to civilians or non combatants, [if undertaken] with the purpose of intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.” Article VI.B..(d), par. . The report is available at http:// www.un.org/secureworld/report.pdf, accessed //. .  FR,  (Sec. (a)()(ii).

64

jeremy elkins

. Hamdan v. Rumsfeld,  U.S.  (). . Instead, terrorism and providing material support for terrorism are listed as among the many crimes that military commissions can try. Military Commissions Act. P.L. -,  ( Stat. ),  USCA (v)() and (). . Ibid., a (); (v). . In the last decision on the issue during the Bush administration, the U.S. Supreme Court denied—by the slimmest of margins—Congress’s attempt in the Military Commissions Act to remove the authority of courts to hear habeas corpus petitions from persons held at Guantanamo, but it left open the question of what procedures aliens held there are entitled to as a condition of detention and trial, and of how far aliens arrested—or “captured,” as the Bush administration preferred to put it—in the United States on charges of “hostilities towards the U.S.” and committing one of the predicate crimes, can be removed from the ordinary criminal justice system. Boumediene v. Bush,  S.Ct. . In al-Marri v. Wright ( F.d.  []), a Fourth Circuit panel rejected the president’s claim of authority to detain outside of the criminal justice system an alien seized within the United States, and the Second Circuit rejected that claim with respect to a U.S. citizen (Padilla v. Rumsfeld,  F.d.  []). The U.S. Supreme Court, however, held that the Second Circuit did not have jurisdiction in that case ( U.S.  []), and the case was subsequently relitigated by another panel of the Fourth Circuit, which held that the president had authority to detain a U.S. citizen (Padilla v. Hanft,  F.d  []). Before the case could be appealed to the U.S. Supreme Court, the government returned Padilla to the criminal justice system and prosecuted him on lesser charges. . “The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them” (September , ), available at http://www.usdoj.gov/olc/warpowers.htm, accessed //. . Rumsfeld v. Padilla, Brief for Petitioner,  WL , . . Ibid., . In its brief in Padilla, the administration analogized Padilla to the U.S. citizen who was among the Nazi saboteurs captured on U.S. soil during World War II and who was tried by a military tribunal and executed. . The Bush administration’s refusal to limit its claim of war powers to anything less than the global “war on terror” so frustrated the district court judge hearing the case that he ordered the administration to submit a response to the questions “With whom is the war I should suggest that we’re fighting?” and “Will the war never be over as long as there is any member [or] any person who might feel that they want to attack the United States of America or the citizens of the United States of America?” In reversing the district court’s order, the Fourth Circuit Court of Appeals criticized the judge for “question[ing] the government’s most basic contentions regarding the ongoing hostilities” and held that the “political branches are best positioned” to define—or as it put it, “comprehend”—“this global war in its full context”  F.d., , .

Beyond “Beyond the State” 65

. The USA PATRIOT Improvement and Reauthorization Act of  modified this provision to require the FBI to provide “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation,” but did not give the Court the authority to review those grounds. PL -,  HR , Sec. (b)()(A). . In the statutory definition that the PATRIOT Act replaced, acts of international terrorism were limited to those involving assassination or kidnapping. 2. “Letter from Birmingham Jail,” reprinted in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. (New York: HarperOne, ). 3. Three years after declaring a war on terrorism, the second President Bush lamented that “[we] actually misnamed the war on terror. It ought to be the struggle against ideological extremists who do not believe in free societies who happen to use terror as a weapon.” “Remarks to the UNITY: Journalists of Color Convention and a Question-and-Answer Session,” August ,  (// Wkly. Compilation Presidential Documents ). There is good reason to believe that the Bush administration intended for the war on terrorism to play a role similar to that once played by the war on communism in subsuming undesired insurgencies abroad and undesired political and social activities at home. For an explicit statement of the parallel of the “war on terror” with the war on communism, see, for example, President Bush’s speech at the National Endowment for Democracy, available at http://georgewbush-whitehouse.archives.gov/news/releases///-.html, accessed //. 4.  FR - (), codified in  CFR .. . “The Threat of Eco-Terrorism,” Testimony of James F. Jarboe (Domestic Terrorism Section Chief, Counterterrorism Division, FBI) before the House Resources Committee, Subcommittee on Forests and Forest Health, February , , available at http://www.fbi.gov/congress/congress/jarboe.htm, accessed //. . Much of this paragraph is taken directly from Elkins, “The Model of War.” . As a matter of practical affairs, it has, of course, always been the case that, especially for less powerful states, external relations have structured and limited the possibilities for domestic governance.

State Law without Its State karen knop

Introduction The impetus for this book is the powerful observation that “in recent years, the close nexus between state authority and legal order has been challenged in remarkable ways on both the macro and micro levels.” State authority is hemmed in by international and regional institutions, resisted by ethnic and religious minorities that apply their own norms, and side-stepped by the international business community, worldwide Internet community, and other transnational communities that have developed seemingly autonomous bodies of rules to regulate their interactions. International law, the law of subcultures within the state, transnational nonstate law—each is a kind of “law without nations” or nonstate law.1 “What happens to law,” the editors ask, “when the nation is left behind, when law floats free of its embeddedness in the imagined community we call a nation?” How can we make sense of the challenges to state law by these other legalities—should we see them as salutary or disruptive? And finally, they ask, is the concept of legal pluralism adequate to capture this law without nations? The trend is neatly captured by the titles of two influential works from the mid-s. In “Power Shift,” foreign policy expert Jessica Matthews asserts: “National governments are not simply losing autonomy. . . . They are sharing powers—including political, social, and security roles at the core of sovereignty— with businesses, with international organizations, and with a multitude of citizens groups, known as nongovernmental organizations.”2 In Losing Control?, a series of lectures on sovereignty in an age of globalization, sociologist Saskia Sassen describes the constraint or displacement of state law by macrolevel law. She focuses on the mushrooming of human rights treaties and their monitoring

State Law without Its State 67

bodies into an international human rights regime, and the rise of private transnational legal codes and supranational institutions such as the World Trade Organization.3 Those who push back against such descriptions emphasize the continuing strength of the state and its law. One important approach that complicates the picture is to demonstrate that alternative normative orders are not independent of the state: state law is integral to nonstate law. Indeed, Sassen herself accents this imbrication.4 Another tack is to show that nonstate law is not the only challenge to state law. The law of other states can also effectively limit a state’s sovereignty, extraterritorial legislation being the prime example. Like the accounts they contest, though, these approaches hold fixed the categories of state law and nonstate law. Disagreement turns on their relative clout, the relationship between them, or the recognition of particular subcategories. In contrast, my point of departure is the fluidity of the state/nonstate distinction. That is, state law can become disembedded from its state, and hence it can become a kind of nonstate law. This disembedding has attracted attention mainly when accomplished by nonstate actors such as international arbitrators. Instead, the focus of this chapter is on disembedding by another state. Specifically, I will analyze various ways in which this occurs through adjudication in another state’s courts, practices hiding in plain sight, so to speak. Here the result is neither state nor nonstate law, the law of neither one state nor the other, but a third thing: state law without its state but not without a state. Comparative constitutionalism is one such practice. Consider these examples. In , the U.S. Supreme Court invalidated a state law setting the maximum hours of work for bakers. A century later, the number of top courts in other countries that have considered the famous decision Lochner v. New York5 is such that it is now possible to describe a non-U.S. Lochner jurisprudence. Tracing the role of the Lochner era in constitutional discourse outside the United States, Sujit Choudhry argues that Lochner has developed different negative emphases in different countries. In the Constitutional Court of South Africa, Lochner is equated with judicial activism, meaning the constitutionalization of judicial policy preferences; in the Supreme Court of Canada, Lochner stands for economic libertarianism; and in the Supreme Court of Israel, Lochner represents constitutional crisis.6 Choudhry’s point is that Lochner is the ultimate “antimodel” of comparative constitutional experience.7 Implicit in Choudhry’s de-

68

karen knop

scription, however, is a different point—namely, Lochner has a non-U.S. legacy that is neither U.S. law nor the law of these other states. The South African, the Canadian, the Israeli Lochners are each a representation of Lochner in that legal system. Lochner is not simply there to be imported; rather the local Lochner is produced by the adversarial adjudicatory process in the importing state. In  the Supreme Court of Canada set out the analytical framework governing the general limitations provision of Canada’s constitutional bill of rights, which guarantees its rights and freedoms “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”8 The limitations analysis in R. v. Oakes9 has been cited by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the United Kingdom, Vanuatu, and Zimbabwe, turning it into a major model for rights-based constitutional adjudication.10 Yet other countries have not followed what is widely acknowledged to be the Court’s almost immediate retreat from Oakes, instead relying on the Oakes test in its original form.11 Thus, like Lochner, the production of Oakes through the judicial process in other states is neither Canadian law, nor is it the law of those states. It is a representation of Canadian law within another state’s legal system. Lochner and Oakes are part of a much-discussed trend toward comparative constitutionalism among high courts in a range of countries—a trend so scrutinized that statistics showing the declining influence of the U.S. Supreme Court and the rise of citations to the Canadian Supreme Court, the Constitutional Court of South Africa, and the European Court of Human Rights have made the front page of the New York Times.12 Thus, the editors’ question about nonstate law can be turned around and asked of state law: what happens to law when the nation is left behind, when law floats free of its embeddedness in the imagined community we call a nation?13 Comparativists recognize that to compare, a judge must ascertain the foreign law and thus inevitably produces her own account of it, whether intentionally or not.14 However, this effect of disembedding has not been dwelled on much by those who find promise in the movement of constitutional ideas across borders. In comparative constitutionalism, the high-stakes questions tend to be whether judges have recourse to foreign law, and if so, when and how that can be justified. More generally, the different modes in which adjudication by one state can

State Law without Its State 69

generate an image of another state’s law have neither been grouped together nor compared. “State law without its state,” as I call it, is not a phenomenon that has attracted attention as such. My objective is not to catalogue every possible type of this disembedded state law, but to identify and differentiate three types, judicial exercises in comparative constitutionalism yielding one. The second type comes from cases of a transnational nature that either necessitate or allow the evaluation of another state’s laws. The third type of disembedded state law—the least controversial and the most routine—is produced by “choice of law” cases in private international law, the field also known as conflict of laws. Private international law is the part of private law that deals with cases having a connection to some legal system other than that of the jurisdiction in which the case is being tried, the other jurisdiction being either a foreign state or another subdivision of the same state. The connection could be, for example, that the contract in dispute was made with a foreign company or was to be performed in a foreign country, or the lawsuit concerns liability for an accident that happened abroad or ownership of property situated abroad. The choice of law question for a court is whether one or more of the issues should be decided according to its own law or according to the laws of one of the foreign jurisdictions connected to the case. When the answer is the foreign law, then the court effectively disembeds that law from the foreign legal system. Thus, in counterpoint to the editors’ description of the rise of nonstate law, this chapter explores what we might learn from conceiving of “state law without its state” as a single notion. Together, the three types of disembedded state law I examine offer a new context for the editors’ questions about law without nations. Does recognition of this notion alter the widely held view that the state is losing its grip on law? To begin, I illustrate how it complicates the analysis of gains and losses for state law. Next, once disembedded state law is clearly differentiated from the macrolevel and microlevel forms of nonstate law described by the editors, we see how it can mimic nonstate law. As such, disembedded state law can either enhance or detract from its nonstate counterparts. Hence, the editors’ question about the salutary or disruptive effects of law without nations is reframed as the salutary or disruptive effects of disembedded state law on law without nations. I go on to explore the nature of disembedded state law in its three variations. Here, private international law serves as an important analytical resource

70

karen knop

because it systematically asks the sort of nitty-gritty questions that have been treated somewhat glancingly or episodically in the other two contexts. How is the content of a foreign law proved, is it treated as a law or a fact, how far should the judge go in adopting the standpoint of the foreign legal system, how exceptionally should the judge reject the foreign law? The technicality of these questions holds our attention on “state law without its state” rather than shifting it to some other process such as translation or evaluation. As will be shown, the answers are not the same for the three types of disembedded state law. The analysis does not, for example, point to a persnickety insistence that foreign law always be established through expert evidence. Rather, it prompts such counterintuitive questions as whether misunderstandings actually pose a problem for a particular theory of why a judge could have recourse to foreign law. And if understanding is not essential, then what does that say about what “state law without its state” is? In addition, these private international law questions highlight the intersubjective experience of describing another’s law—which brings us to the editors’ question about legal pluralism. In the context of this chapter, their question becomes whether legal pluralism is adequate to capture “state law without its state.” The response, of course, depends to a large extent on the definition of legal pluralism. I conclude with the suggestion that current anthropological insights into legal pluralism’s lessons, which feature the exercise of intersubjectivity, mesh with what I seek to draw out in this chapter. A word about my choice of examples should be added here. Although the types of disembedded state law I discuss are general types, states engage to different degrees in the practices that give rise to them. All states must deal with private international law cases in which one or more of the parties, or some other aspect of the story, may be foreign to the state or its law, but not all states are inclined to consider foreign laws in the two other adjudicative contexts I identify. Indeed, I discuss the uneven patterns of comparative constitutionalism among national courts. Furthermore, the content of private international law differs from one state to another. A number of my examples are drawn from Canada and the United Kingdom, and the private international law approach I invoke as an analytical resource is that of the Anglo-Canadian common law, for the reason that these jurisdictions offer one window—but certainly not the only window—into the nature and extent of “state law without its state.”

State Law without Its State 71

Disembedded State Law, Continued In comparative constitutional examples like the non-U.S. Lochners and the non-Canadian Oakeses, courts disembed state law in the process of interpreting their own law. A different type of disembedded state law arises in cases of a transnational nature that either necessitate or allow the evaluation of another state’s laws, whether law on the books or law in action.15 In this scenario, a court considers another country’s legal system not for the purpose of comparison but as part of decisions it confronts such as granting asylum, extradition, or deportation. In common-law countries, various legal doctrines generally require the courts to abstain from judging the acts of another state,16 so these instances are unusual. Insofar as they exist, it tends to be the availability of international legal standards that opens the door. More striking for our purposes, though, are the cases in which courts go beyond an external measure of legality, such as international law, and offer a view from inside the other state’s law. In the  case Abbasi v. Secretary of State for Foreign and Commonwealth Affairs,17 the English Court of Appeal did not abstain from discussing the legality of indefinite detention at Guantanamo Bay, although, as Sir David Williams remarked, “One suspects that the argument of non-justiciability would have prevailed without more ado only a few years ago.”18 Furthermore, the Court proceeded to do so under U.S. law. The issue in Abbasi was whether the British Foreign Office had a duty to exercise its right of diplomatic protection on behalf of Feroz Ali Abbasi, a British national captured by U.S. forces in Afghanistan and held at Guantanamo Bay. By the time the case reached the Court of Appeal, Abbasi had been held captive for eight months without access to a court or any other form of tribunal or even to a lawyer. Because the basis for Britain’s right of diplomatic protection, and for Abbasi’s argument that he was entitled to that protection, was that the United States had violated Abbasi’s fundamental right not to be arbitrarily detained, the Court had to consider whether the United States was in violation of international human rights law. The Court could have confined its reasons to international human rights law, but instead it began with the great U.S. legal tradition of habeas corpus that the United States shares with Britain. Meaning literally “you have the body” in Latin, habeas corpus is a writ directed to the person detaining another that commands him to produce the body of the prisoner or person detained. Its

72

karen knop

purpose is not to determine guilt or innocence, but to test the legality of the imprisonment or detention. Described by Sir William Blackstone as the most celebrated writ in the English law,19 habeas corpus is guaranteed by the U.S. Constitution.20 Writing for a unanimous Court of Appeal, Lord Phillips quoted from the U.S. Supreme Court (which had adopted the words of a British case) on “the ‘extraordinary prestige’ of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence.”21 And he concluded that “[t]he recognition of this basic protection in both English and American law long predates the adoption of the same principle as a fundamental part of international human rights law.”22 Thus, Abbasi included the English court’s description of U.S. law from inside the U.S. legal tradition—expressed with the awareness that the U.S. Supreme Court was likely to hear the appeal in Rasul v. Bush on the issue of whether habeas corpus was available to Guantanamo detainees.23 The penultimate paragraph of Abbasi underlines this internal standpoint: The position of detainees at Guantanamo Bay is to be considered further by the appellate courts in the United States. It may be that the anxiety that we have expressed will be drawn to their attention. We wish to make it clear that we are only expressing an anxiety that we believe was felt by the court in Rasul. As is clear from our judgment, we believe that the United States courts have the same respect for human rights as our own.24

A similar effect is produced in the Supreme Court of Canada case United States v. Burns.25 Burns involved a U.S. request for the extradition of two Canadian teenage boys wanted in connection with the gruesome baseball bat murder of one of the boys’ parents and sister in the state of Washington. The question for the Court was whether the Canadian minister of justice should obtain assurances from the United States that the death penalty would not be imposed on the boys. Departing from its previous case law,26 the Supreme Court ruled that assurances are constitutionally required in all but exceptional cases and were required in this case.27 Unlike in Abbasi, where finding the United States in violation of fundamental human rights was a necessary step in the analysis, the Court in Burns could have confined itself to what Canada as a non–death penalty state should do, without expressing any views on the death penalty in the United States. The bilateral Canada-U.S. extradition treaty gave either state an unqualified right to request assurances that the death penalty would not be imposed, or, if im-

State Law without Its State 73

posed, would not be carried out. Nevertheless, since the treaty did not require the requested state to provide assurances, the minister of justice had to exercise his discretion in a way acceptable to the United States as well as Canada.28 In the leading case prior to Burns involving extradition to the death penalty, the Supreme Court of Canada had not ventured onto the terrain of U.S. law. The majority in that case had stressed generally that respect for state sovereignty and the need for international cooperation on criminal matters required Canada to show a certain degree of deference to differences between Canada’s criminal laws and those of other states. Deference was precisely about not discussing another state’s laws. The dissenting judges had emphasized Canadian constitutional values as controlling. Although the effect of the dissents would have been a curtailment of modes of punishment in the United States, they also did not intrude into the death penalty debate in the United States, but rested on the premise that the United States would respect Canada’s different constitutional values. The majority and dissenting judgments in the earlier case are, therefore, mirror images of each other. In contrast, the Supreme Court’s analysis in Burns includes linking Canada’s rejection of the death penalty, and hence its need to ask for assurances, with the situation in the United States: “[W]hen Canada looks south to the present controversies in the United States associated with the investigation, defence, conviction, appeal and punishment in murder cases, it is with a sense of appreciation that many of the underlying criminal justice problems are similar.”29 The Court then detailed the scale and recent escalation of the controversy over the death penalty in the United States, based on concerns about error and bias similar to those that led to the abolition of the death penalty in Canada.30 It pointed out that the controversy had increased particularly in some of the retentionist states, including the state of Washington, the state to which the boys in the case would be extradited. While the Court was careful not to draw conclusions on the merits,31 it sought to show that support for abolition was growing in the United States and could be justified on the body of American evidence. In addition, rather than dwelling on the nature of capital punishment itself, the Supreme Court ultimately based its decision on the recognition of the chances and patterns of error, the ground that had emerged as the strongest argument against the death penalty in the United States. Similarly, it substantiated increasing concern about the “death row phenomenon” with information from a

74

karen knop

report by the Chief Justice of the state of Washington on the long delays before execution,32 and with dissenting opinions by justices of the U.S. Supreme Court, past and present.33 Through Canadian eyes, we thus see the widespread and heightened controversy about the death penalty within the United States, and the statistical data on wrongful convictions that problematizes this most final of punishments. Not all cases involving diplomatic protection, extradition, or similar transnational issues will lead the court to reason from inside the other state’s legal system, as opposed to assessing that system against the standards of international law or against its own domestic legal standards. It may well be that in Abbasi and Burns, the court’s awareness of the active legal controversy in the other country played a role in its choice to do so.34 Regardless of the measure of legality used, however, these sorts of transnational cases all involve some account of the other state’s law. The third type of disembedded state law arises in private international law. Thus far, consideration of another state’s law has been framed as controversial or exceptional. Precisely the opposite is true for private international law. This field of law is predicated on the prospect of law coming undone across borders: couples who are legally married in the eyes of one jurisdiction and not another (so-called limping marriages), persons whose ownership of property is recognized in one jurisdiction and not another, and so on. The other jurisdiction’s law is necessarily among the choices of law to govern the dispute. Foreign judgments too are there to be recognized. And both are increasingly engaged by the greater movement of people from immigrants, laborers, and students to tourists and day-trippers; of goods through channels that include huge multinational corporations and local artisans selling handicrafts over the Internet; and of ideas and images. By way of illustration, consider that in German private international law, issues of marriage, divorce, maintenance, guardianship, custody, and adoption are decided according to the law of the individuals’ state of nationality. If they are nationals of France, then German courts apply French law to resolve the issue. If they are Turkish nationals, then Turkish law, and so on. In a striking example of disembedded state law, the number of European family law cases that turn on the law of an Islamic state is such that Mathias Rohe speaks of the formation of a “European Sharī‘a”35 and describes what he calls a German Sharī‘a.36

State Law without Its State 75

Complicating the “Law without Nations” Story With the concept of disembedded state law in mind, let us return to the book’s animating idea: state law is losing ground to nonstate law from both above and below. The fate of citizenship is a good reminder of this story. As Peter Spiro observes, the state’s bestowal of nationality matters less than before because international human rights law gives non-nationals many of the rights previously reserved to nationals. Insofar as nationality still matters, the state has less freedom to choose its nationals because of international legal obligations to reduce statelessness and not to discriminate on the basis of sex.37 In parallel, as Kim Rubenstein emphasizes in response to Spiro, non-national identities are becoming and should become more legally salient.38 Thus, the state’s prerogative to express and reinforce national solidarity through nationality is eroded by international law, from above, and alternative solidarities from below. As mentioned in the introduction, one approach to refining the “losing control” story is to demonstrate how alternative normative orders are not independent of states and state law. International law is conventionally made by states, and state law determines its status within the state’s legal system. The norms of ethnic and religious minorities operate within and against state legal structures including federalism, self-government, and other autonomy regimes for substate groups, and collective and individual rights. Lex mercatoria, “the transnational law of economic transactions” that Gunther Teubner calls “the most successful example of global law without a state,”39 depends on whether the state’s law allows international arbitration and enforces arbitral awards.40 The other objection touched on earlier is that the “losing control” story neglects the extent to which one state’s laws can limit another state’s ability to control what occurs in that state’s territory. Under international law, a state can legislate extraterritorially on certain recognized bases; for example, it can regulate the conduct of its nationals abroad. Some states go further and assume jurisdiction on the more controversial basis that even if all of the conduct complained of takes place in another state, it is producing “effects” within the state’s territory, a basis used notably by the United States in the area of antitrust regulation.41 The disembedding of one state’s law by another is a different way in which the law of other states has implications for the editors’ account of the rise of nonstate law. In the context of comparative constitutionalism, state law also

76

karen knop

accumulates more power outside its borders as it influences constitutional interpretation in other states. Distinct from leading through its foreign policy, the state leads by its domestic example.42 On the downturn, for instance, U.S. legal scholar Anne-Marie Slaughter has lamented the declining citation of U.S. Supreme Court decisions by foreign courts: “We are losing one of the greatest bully pulpits we have ever had.”43 On the upturn, Canadian Adam Dodek frames the growing influence of the Canadian Supreme Court’s constitutional rights jurisprudence as an element of Canada’s “soft” power in the world.44 Such patterns of foreign citation have figured prominently in debates over the uses and value of comparative constitutionalism in the courts, often centered on Slaughter’s influential model of transgovernmentalism; in particular, her model of communication between courts worldwide. Slaughter argues that the state is not losing power to other actors.45 Instead, state power is metamorphosing, and in ways that increase the prominence of other states’ laws. Slaughter’s story of the rise of governmental networks involves a shift away from international treaties negotiated by generalist diplomats, to nonbinding types of policy coordination among specialized national bureaucrats and their counterparts in other states through the exchange of information, best practices, and other methods that tend to result in the spread of national legal solutions. Among the governmental networks that Slaughter singles out is a global network of national, regional, and international judges who communicate across borders in a variety of ways and cite one another’s judgments.46 Although the state may gain power through these practices of transjudicialism, it may also lose a certain amount of control to the global network of judges because they influence the judicial interpretation of its law within its jurisdiction. The mutual exchange of information and mutual regard is seen to promote the rule of law and human rights worldwide; specifically, the knowledge sharing and peer pressure characteristic of networks serve as constraints on judges who might otherwise be vulnerable to political crises and other extrajudicial matters.47 Whereas some commentators see transjudicialism as beneficial engagement in a common enterprise, others are wary of soft forms of imperialism effected through the spread of the laws of powerful states.48 Slaughter’s analysis of transjudicialism includes personal communications between judges (judges talking to one another) and citation patterns (judges citing one another’s judgments) as part of the phenomenon, but the two do not always line up. Conversations

State Law without Its State 77

among judges at international judicial conferences, during court-to-court visits, and through other means may go back and forth; citations tend to go primarily in one direction. “While there may not be ‘giving’ and ‘receiving’ courts in the same sense as during the colonial period, the question . . . is whether old patterns are simply replicating themselves in a division between courts that approve and those that seek approval.”49 Authors who make this point usually have the U.S. Supreme Court in mind,50 but the Supreme Court of Canada is not that different. For instance, although New Zealand’s statutory bill of rights bears a striking resemblance to the Canadian Charter of Rights and Freedoms, and Canadian decisions are cited far more frequently than those of any other state in New Zealand rights litigation,51 a  study found that the Supreme Court had yet to reference a decision under the New Zealand statute in the seventeen years since it was enacted.52 The same question about two-way traffic may be asked about prominent non-Western courts. Whereas the Supreme Court of India tends to cite mainly English and U.S. cases, other courts in South Asia seem more inclined to cite one another, and, at least in the area of public interest litigation, the Supreme Court of India appears to have been a major influence on judiciaries in Pakistan, Bangladesh, and other South Asian countries.53 The converse of the imperialism critique of transjudicialism is the postcolonial critique that some courts may reject foreign legal parallels in order to disaffiliate from their former colonial ruler or to mark their political independence from a hegemonic power rather than for any reason related to the law’s substance.54 Other observers of transjudicialism argue that although certain courts tend to be cited more often, they are not necessarily those of powerful states. Instead, their prominence can be explained by the fact that they are dealing with a more established constitution with more extensive jurisprudence, and by features common to the cited and citing courts, such as the existence of a liberal democratic regime, historical ties, and similarities in constitutional structure.55 Then again, when the state’s law is invoked by foreign courts, that state is not in control of its interpretation, as the Lochner and Oakes examples show. The state loses control of this form of soft power insofar as its law takes on a meaning beyond the authority of the state. Transjudicialism is not only about the number of positive citations. The foreign law may be distinguished as inappropriate to the national context or, more negatively, may be cited as a cautionary tale.56 Indeed, an empirical survey of the Supreme Court of Canada’s

78

karen knop

constitutional rights cases from  to  found that distinguishing foreign jurisprudence from the Canadian context was the second most common reason for the Court’s references to foreign law.57 Moreover, positive citation by a foreign court may turn out to invert the meaning of the judgment. In a study of the mis-citation of Canadian case law in judicial decisions from the Privy Council (on appeal from the Bahamas), the Israeli Supreme Court, and even the Supreme Court of Canada itself concerning extradition to the United States for drug-related prosecution, Ed Morgan argues that all of these decisions cite the same sources and engage in the same process of analysis, and all circle back from constitutional rights to international relations in a way that augments state power.58 The result is “an unlikely alliance” between long-arm U.S. law enforcement in the “war on drugs” and the transnational use of the Supreme Court of Canada’s constitutional case law—ironically often considered too activist to be cited in U.S. courts. As Morgan puts it: “In seemingly climbing aboard what has become a policy obsession for the United States, foreign courts have pulled a contorted Canadian mask over their legal face.”59 Another example of affiliation60 based on misconstruction is found in Rayner Thwaites’s analysis of the Canadian Supreme Court’s use of comparative law in a case involving the constitutionality of Canada’s security certificate regime, which provides for the removal of noncitizens from Canada on security grounds and for detention pending removal.61 Thwaites argues that although the Canadian court framed its decision as being consistent with relevant UK and U.S. cases, it took such a bird’s-eye view of the foreign decisions that it arrived at a criterion for limiting detention that proved capable of accommodating opposite positions on the legality of indefinite immigration detention. Whereas the Supreme Court of Canada gave legal sanction to detention for so long as a speculative possibility of removal exists, the foreign decisions read immigration detention as limited by a requirement that there be a real prospect of removal within a reasonable time. Thus, the Court’s claim of consistency papers over a fundamental divergence. Of course a court’s rejection, criticism, or mistaken inversion of a foreign legal solution may or may not lead the foreign state to re-evaluate its law, although commentators who posit a dialogic model of comparative constitutionalism point to this possibility.62 In Lawrence v. Texas,63 the U.S. Supreme Court held that a state law criminalizing sodomy between consenting adults was unconsti-

State Law without Its State 79

tutional under the due process clause, reconsidering its earlier holding in Bowers v. Hardwick.64 Citing two decisions of the European Court of Human Rights decided after Bowers, Justice Kennedy wrote for the majority: “To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom.”65 However, even if the citation of foreign law does not result in any loss of authority within the foreign state, the potential for negative or inaccurate citation qualifies the assumption that the use of its law abroad represents a gain in extraterritorial influence. A similar gain and loss argument can be made about private international law. Rather than losing ground to nonstate law, the state’s law gains ground as it contributes, via private international law, to regulating certain spheres of life among its diaspora, growing communities of its emigrants and transmigrants who live in other states. And yet, insofar as the religiously based law of foreign states is considered by judges in the country of immigration, the risk arises of what Mohammad Fadel terms “legal Orientalism,”66 referring to Edward Said’s hypothesis that the West’s superior power enables it to “represent” the Other and thereby render the Other unable to speak for itself.67 Lastly, transnational public law cases such as Abbasi and Burns are more straightforward. The foreign court not only discusses the other state’s law, thereby breaking that state’s monopoly on the interpretation of its law, but its discussion may also have concrete consequences for the other state. In the case of Abbasi, the English Court of Appeal offered an account of the U.S. legal tradition of habeas corpus at a time when the U.S. Supreme Court was likely to hear an appeal on that very issue. Indeed, the Court explicitly contemplated that “the anxiety that we have expressed will be drawn to their attention.” Similarly, in Burns, the Supreme Court of Canada’s judgment contained a representation of the U.S. criminal justice system arguably aimed not only at securing assurances that the death penalty would not be imposed in this case, but even at contributing to the U.S. capital punishment debate. All this is not to endorse gain and loss as the best way to analyze the relevance of disembedded state law, but simply to illustrate how the notion of “state law without its state” complicates the editors’ picture of the rise of nonstate law at the expense of state law.

80

karen knop

Relationships of Disembedded State Law to Nonstate Law Because accounts of “law without nations” neglect the practices whereby one state’s law can be disembedded by another state’s courts, they also do not examine the interaction of the resulting law with the very law without nations they describe. I next touch on how this disembedded state law can play a role similar to nonstate law, specifically to international law and to the norms of ethnic, religious, and other minorities within the state. As a result, disembedded state law can sometimes act as a forerunner for nonstate law, while at other times its availability as a substitute serves to lessen recourse to or recognition of the relevant nonstate alternative. Is disembedded state law “salutary” then, to use the editors’ term? That depends in part on whether we approve of a given nonstate challenge to the traditional state-law nexus, and, in turn, whether disembedded state law furthers or impedes that challenge. In debates over what sources of law should be off limits to national judges, the use of international law (nonstate law) and the comparative use of foreign law (which generates disembedded state law) are sometimes lumped together.68 International lawyers in particular object to this failure to distinguish. Prime objections are that the state has taken part in making international law and has consented to be bound by it, neither of which is true of foreign law.69 Little attention has been paid, however, to the relationship between the two. Specifically, foreign law can either work with or cut against recourse to international law. In a helping mode, foreign law can serve as a placeholder until international law catches up. In Burns, the Supreme Court of Canada looked to international law to interpret the right to life, liberty, and security of the person in the Canadian constitution. It found a trend in international human rights law toward prohibiting the death penalty or extradition to the death penalty. But an actual prohibition had not emerged in international law. Instead, the Court relied on a tallying up of states that had outlawed capital punishment, together with a detailed comparison of the experiences in Canada, the United Kingdom, and the United States. Thus, comparative constitutional law substituted for an international human right not (yet) in existence, assisting the Court to justify the change from its earlier ruling that Canada need not seek assurances the death penalty would not be imposed.70 To the contrary, because foreign law permits the substitution of a hand-

State Law without Its State 81

picked set of comparisons for international law, it can also serve those who wish to roll back international law (perhaps the better to advance). Although the charge of cherry-picking is leveled at the use of international as well as foreign law, and is most often made against internationally minded judges, there are key differences. If a judge uses international law to inform the interpretation of a right in the constitution, then she must look to the international treaties, customs, and general principles of law binding on her state. If instead she compares the provision to similar provisions in other constitutions, then she designs the comparison.71 The possibility that the judge can select the foreign law to suit her purpose has prompted some judges and commentators to criticize comparative constitutionalism as no more than looking over the heads of the crowd and picking out one’s friends.72 Among the rejoinders are that courts can and have issued directions to lawyers specifying when foreign law may be cited,73 the constitution’s wording may point to appropriate comparisons,74 and, in any event, the adversarial process by its nature acts as a control on the selective use of foreign law.75 Nevertheless, constitutional comparisons enable the judge to set the bar lower than in international law. In addition, they may undermine the use of international law generally by providing international law skeptics with the alternative of “real” law, that is, actually existing law in other states.76 Another relationship of help or hindrance is between the norms of ethnic, religious, and other minorities (nonstate law) and private international law (which gives rise to disembedded state law).77 Although we tend not to think about it as such, private international law contributes to the policy of multiculturalism for immigrant, transmigrant, and other communities within the state. As is well known, public law recognizes cultural diversity through such vehicles as human rights, the rights of individuals belonging to minorities, and the collective rights of minorities. Examples include the individual’s right to freedom of religion, the right of members of a cultural minority to enjoy their culture in community with other members of the group, and the right of some groups to a certain autonomy regime such as a distinctive personal law or form of power sharing.78 Private international law, however, may also recognize diversity. By way of example, consider a couple that enters into a certain type of marriage in a state where such marriages are legal and then immigrates to a state that prohibits them. The question of the validity of the marriage arises in the new state, per-

82

karen knop

haps in the context of sponsoring the immigration of family members where immigration law invokes private international law to determine who is a family member, or of some private law issue such as support or inheritance. If the new state has choice-of-law rules that refer the validity of the marriage to the law of the parties’ intended domicile after the marriage, then its private international law does not have a multicultural effect. The couple intends to make their home in the new state, so private international law holds them to the same family law as everyone else in the state and hence does not recognize their marriage from the old state. Then again, if the couple splits their time between the new state and the old, a judge might be open to finding that they are still domiciled in the old state.79 If so, then private international law would recognize the marriage. What if instead the new state has a choice-of-law rule on the validity of marriage that relies on the parties’ ante-nuptial domicile? Then an immigrant’s existing marriage would be respected even though such a marriage would not be possible in that state. Finally, imagine that the state of immigration has a choice-of-law rule that says that the validity of a marriage depends only on the law of the place of celebration,80 what is known as a pure lex loci celebrationis rule. This rule enables still greater diversification within the state of immigration: not only is an immigrant’s existing marriage recognized, but children born and raised in the new state can return to the family’s state of origin to enter into the same type of marriage and have it recognized. And a pure lex loci celebrationis rule has a diversifying effect that goes beyond immigrant and transmigrant communities. For instance, a foreign same-sex marriage would be recognized as valid even if the couple traveled to the foreign jurisdiction solely to get married and has no past, present, or future ties to that jurisdiction. In the result, private international law’s recourse to the law of other states may play a role similar to public law’s respect for nonstate law such as religious law. There are, of course, differences. If the immigrant’s state of origin delegates questions of personal status to religious law, the difference may not be significant. But if the state of origin’s laws reflect the dominant religion or seek to codify other religions, then it is important to differentiate religiously based state law from religious law and also to recall that not all immigrants will be from that dominant religion. A second difference is that public law’s policy of multiculturalism deals with whether to permit individuals to enter into certain relationships within the

State Law without Its State 83

state, whereas private international law is concerned with existing relationships entered into outside the state. Thus, private international law may go further. It is striking that a  proposal in Ontario81 to include Muslim personal law among the religious laws used to arbitrate family and inheritance law cases under the provincial Arbitration Act was rejected by the Ontario government, but, as a matter of private international law, the law of Muslim states applied and continues to apply to family and inheritance law cases in Ontario where the case has links to a Muslim state and the relevant choice-of-law rule indicates that the law of the Muslim state governs. Polygamy is another such example. An individual cannot enter into a polygamous marriage in England or Canada.82 However, English courts, and similarly Canadian courts,83 have come to recognize foreign polygamous marriages for many purposes, including barring a subsequent monogamous marriage in England, matrimonial relief, generally legitimacy of and succession by children, and succession by wives.84 As these examples show, private international law may effectively expand multiculturalism beyond the policies found in the state’s public law. On one reading, private international law goes further still because it may act as the thin end of the wedge. By recognizing as legal that which would be unrecognized or illegal if entered into within the state, it may help to normalize and ultimately to legalize these practices within the state. This was the strategy of some same-sex marriage advocates in the United States. Before same-sex marriage was available anywhere, gay and lesbian couples held commitment ceremonies that had cultural but no legal significance. Now that some countries and some U.S. states have legalized same-sex marriage,85 weddings celebrated in these jurisdictions have come to supplement the cultural practices. In the six-year period since same-sex marriage became available in Canada in June , for instance, , gays and lesbians from the United States were married in Toronto.86 As part of an advocacy initiative, the Civil Marriage Trail project has assisted New York same-sex couples to get married in Canada. The advocacy goal was to have the Canadian same-sex marriages recognized in the United States and thereby to increase the pressure to legalize same-sex marriage in the U.S.87 The state of New York currently recognizes same-sex marriages from other jurisdictions, although it does not perform them.88 But even if any form of recognition is refused under private international law, foreign laws force U.S. courts to speak of same-sex marriage as law.89

84

karen knop

The opposite reading of private international law’s relationship to public law’s multiculturalism is that instead of putting pressure on the state to legalize religious or cultural practices, private international law serves as an escape valve by providing a compromise. Israel might be an example. Same-sex marriage is not legal in Israel, but the Israeli Supreme Court has allowed five same-sex Israeli couples who married in Canada to be registered as married in Israel. Its ruling highlighted the existing phenomenon of “Cyprus marriages,” whereby going to Cyprus to get married is a routine way for Israelis to circumvent the requirement of religious marriage, and the effectiveness of the practice has been upheld by the Israeli Supreme Court.90 It is possible to see Cyprus marriages as an outsourcing of multiculturalism that cuts against efforts to change Israeli family law. In short, then, disembedded state law can play roles similar to those played by nonstate law, but whether it enhances or detracts from the latter is dependent on the context.

Nature of Disembedded State Law The discussion so far has situated “state law without its state” relative to state law and nonstate law. I now turn to the nature of disembedded state law as law, particularly its potential transformation from law into something else when it is drawn into another state’s legal system. Here, private international law, the most routine of our three disembedding devices, offers a valuable analytical template because it asks a set of questions that both draws out the nature of disembedded state law and highlights differences among the three types. (By private international law, I mean the traditional Anglo-Canadian common-law approach to private international law.) These questions go beyond net influence to examine how the content of a foreign law is proved, whether it is treated as law or fact, how far the judge should go in adopting the standpoint of the foreign legal system, and how exceptionally the judge should reject the foreign law. I begin with how the content of the foreign law is established, which relates to how closely its image is likely to resemble its self-image in its own legal system. Unlike the Abbasi and Burns variety of transnational case and unlike comparative constitutionalism, private international law requires proof of foreign law. If a choice-of-law rule points to foreign law as the law governing an issue, private

State Law without Its State 85

international law specifies the method of establishing its content.91 In commonlaw private international law, the parties must prove the foreign law through the introduction of expert evidence.92 The judge cannot determine the foreign law for herself, but requires expert, situated knowledge. Although the rules of proof are intended to establish what the foreign law is, the adversarial process can be understood, I suggest, as encoding the idea that the foreign law is contestable and that what is established is a product of competing testimony by foreign law experts and the judge’s perspective on that testimony. Thus the common-law rules on proof of foreign law reflect the responsibility of reproducing the foreign law as it exists in the foreign legal system, while the techniques reflect the recognition that this is not possible and ultimately it will be a best approximation. The court may well get the foreign law wrong,93 but as Annelise Riles has written, “[It] could also be argued that the very fact of the honest, affirmative, and committed attempt to get it right is its own achievement.”94 Transnational cases of the Abbasi and Burns sort do not involve proof of foreign law and, more telling, may not aspire to the same type of accuracy as private international law.95 If the court’s goal in such cases is arguably to be convincing both locally and in the foreign state, then the emphasis is not on presenting the foreign law as it would be understood by a judge or lawyer in the foreign legal system—but as it could be understood. Think of the Canadian Supreme Court’s account of miscarriages of justice in the United States in Burns. The court’s aim in such cases impels it to summon and integrate enough information about the other legal system to be convincing within it, which necessitates a different, perhaps even a more profound, sort of identification with the foreign law than in private international law. Comparative arguments can be made in constitutional cases without proof of the foreign law, yet this potential for dabbling has not caused much concern among comparative constitutionalists.96 The contrast with international law is instructive. In Canada, for instance, judicial notice is taken of international law, meaning that judges are expected to know it. Nevertheless, Canadian courts have sometime referred to expert evidence in assessing international law, and a few judges and commentators have signaled that there should be a place for expert evidence, whether because it would facilitate recourse to international law, ensure its accuracy, or both.97 One reason that comparative constitutionalists seem to be fairly untroubled by the absence of a judicial responsibility to know

86

karen knop

the foreign law or the absence of a procedure for ascertaining its meaning is that comparisons come in different shapes and sizes. Cheryl Saunders argues that the kind of understanding needed of foreign law depends on the nature of the comparison: the demands are higher when foreign law is invoked on the basis of some functional equivalence, and higher still when the foreign legal solution is adopted.98 In support, Saunders cites Sujit Choudhry’s point that when the Court’s use of comparative constitutional materials is “as a way of facilitating a greater understanding of one’s own legal system,” the primary goal is not apprehending all the details of the materials but “identifying the normative and factual assumptions upon which they are based, or the lessons that have been ascribed to them in the constitutional discourse of that jurisdiction.”99 The insight that the particular challenges of understanding a foreign law depend on the particular reason for the comparison is a fruitful one. What our focus on disembedded state law adds is an emphasis on the creative production involved in any description of foreign law and hence the potential for serendipitous and nonserendipitous misunderstandings. But are misunderstandings even a problem? If we take up Choudhry’s example of comparison as a way to facilitate greater understanding of one’s own legal system, then the need for accuracy is—surprisingly—unclear. On the one hand, we might assume that for foreign law to provoke deeper reflection on the judge’s own legal system, perhaps causing the rethinking of a line of cases or the discovery of a law’s latent meaning, the judge’s understanding of the foreign law must be sufficiently sophisticated. On the other, given that foreign law serves here as a catalyst for a fresh analysis of domestic law using standard domestic law methods, then arguably it does not matter whether the image of the foreign law resembles that law as understood in the foreign legal system, so long as the image prompts self-reflection. Mark Tushnet has likened this use of foreign law to a judge’s reliance on what she takes from a great work of literature,100 which might lead us to inquire into what here, if anything, is distinctive about law as opposed to literature. With respect to other justifications for comparative constitutionalism, the importance of accuracy may be clear; for instance, justifications that treat foreign laws as generating valuable empirical data: conventional wisdom,101 consensus,102 or the legal equivalent of widely accepted scientific information.103 To give another instance, some authors regard comparative constitutionalism as

State Law without Its State 87

reflecting a shared rights-enhancing enterprise that will differ in the national particulars.104 Here too the underlying principles, at least, must presumably be commonly understood. The second inquiry into the nature of disembedded state law—namely, whether the foreign law is treated as fact or law—is connected to the first.105 This may be seen as a question about modes of reasoning. In private international law, the fact-or-law question comes up in such contexts as whether the judge can conduct her own research into the foreign law in addition to the expert evidence offered, whether she can interpret the sources for herself when faced with conflicting expert evidence, and whether an appeal court is bound by the trial judge’s findings on foreign law. Moreover, if foreign law is a fact, its content as found does not enter the state’s legal system as a precedent, and each case involving that foreign law necessitates a new inquiry that, in turn, produces a new image of it. Here too, we see a spectrum among our three types of disembedded state law. Common-law private international law treats foreign law as a fact.106 At the other end of the spectrum, the judges in the Abbasi and Burns cases applied the same modes of reasoning to the foreign law as to their own, which suggests that they approached it as law. In Abbasi, the English Court of Appeal traced a tradition of habeas corpus through both English and U.S. law. In Burns, the Canadian Supreme Court analyzed miscarriages of justice, especially in murder cases, as a possibility for error built into systems of criminal justice. In between, comparative constitutionalism’s approach varies with the rationale for considering foreign legal material. Those more inclined to functionalist explanations tend to treat it as fact (solutions to the same problem in different legal systems, test data, and so on), whereas those inclined to normative explanations are more likely to treat it as law and enter into the legal reasoning of the foreign system.107 The third question, that of standpoint, is crystallized in a technical doctrine often considered the bête noire of private international law: the doctrine of renvoi. The issue in renvoi is the judge’s perspective, as the following rather technical hypothetical shows. A citizen of country C is domiciled abroad and dies in the country of her domicile, which is country D. She has died without a will, and the issue of succession to her estate arises in her country of citizenship. C’s private international law rules say that succession to her movable estate is

88

karen knop

governed by the law of D. But the law of D could have one of two meanings. It could be D’s ordinary laws governing intestacy: the rules that apply to cases of intestacy wholly within the country, with no connections to any other jurisdiction. Alternatively, the law of D could mean D’s private international law rules on intestacy. Suppose that D’s internal law governing intestacy indicate that a certain person would succeed to the estate, but D’s private international law says that succession is governed by the law of C (the renvoi), and C’s ordinary laws on intestacy say that a different person would succeed. What does the judge sitting in C do? One option is that since her private international law points her to the law of D, she does whatever a judge in D would do if he were deciding this issue himself. This is sometimes called the foreign court theory of renvoi and is described as involving impersonation, or judging “as if ” she were a foreign judge applying the law that he would apply within his legal system. There are other options, but I single this one out because it is the most extensive exercise in what Annelise Riles has described as private international law’s lateral thinking.108 The issue of renvoi helps us to notice how the judge’s standpoint in the other two categories of disembedded law can also be an exercise in lateral thinking, although not the same exercise as in the foreign court theory. One of the virtues ascribed to comparative law, including comparative constitutional law, is that of “making strange” one’s own law by seeing it through another’s eyes. In other words, the judge sees her own law as if she were a foreign judge. In transnational cases such as Abbasi and Burns, the making strange is produced differently because it is a judge seeing the foreign law through her own eyes and thus creating an alternative interpretation for that foreign legal system. Foreign law/foreign eyes, own law/foreign eyes, foreign law/own eyes—all are departures from the own law/own eyes that is standard. The final question generalized from private international law is the law’s critical valence. In Anglo-Canadian common law, when a choice-of-law rule points to a foreign law, that law will not be applied if its content is repugnant to the public policy of the forum or if the result of its application in the context is contrary to that public policy. Two well-known examples from English private international law are Nazi laws depriving Jews of their property,109 and Iraqi laws seizing Kuwaiti assets in time of war and contrary to U.N. sanctions.110 Public policy refers to underlying values of the forum’s law, necessitating a com-

State Law without Its State 89

parison that goes beyond the existence of a difference to determine whether the foreign law is fundamentally contrary to those values. Thus the public policy exception controls whether disembedding produces a negative image of the foreign law; whether the court’s consideration ends in rejection and implicitly critique. In comparative constitutionalism, this practice of rejecting foreign law (as in the Lochner example) has been termed “aversive” constitutionalism.111 And in transnational cases such as Abbasi and Burns, the Court’s consideration of foreign law can clearly give rise to critique or advice.

A Word about Legal Pluralism Is there an existing school of thought that captures what I have categorized as disembedded state law? The editors propose legal pluralism as a possible framework of analysis for the array of current challenges to the close nexus between state authority and the legal order. Does legal pluralism do justice to disembedded state law? The insights of legal pluralism are many and diverse, so I will confine myself to those that seem most relevant to the question.112 Legal pluralism emerged from the study of colonial and newly independent states and was originally concerned with problems stemming from the imposition of colonial law onto existing systems of customary and religious law.113 It was a reaction against legal positivism and its assumptions that the state has a monopoly on law, and that law and nonlaw must be strictly distinguished. To official law, legal pluralism added living law, positing that people’s lives are “regulated by various independent but related legal orders, each valid on its own terms.”114 These insights are capable of encompassing two basic features of disembedded state law. One is that one state breaks another state’s monopoly on its law when the state’s courts use that law in various ways. Second, because the plurality of legal orders is heterogeneous, legal pluralism can include state-made law deployed and hence disembedded by other states, as well as more familiar instances of state-made law applied by nonstate actors.115 Legal pluralism attends not only to the plurality of legal orders but also to the interaction between them. Accordingly, legal pluralism scholars are interested in law as hybrid. In a transnational context, they have written on what is sometimes called “glocalization,” examining ways in which international law

90

karen knop

takes on meaning nationally to produce norms that are simultaneously global and local.116 Another transnational example is international arbitration, where scholars have focused on the places at which arbitration lifts off from state law and arbitral awards touch down for enforcement, two sites where the state’s law shapes or is shaped by nonstate law. Hybridity captures something generally about the quality of disembedded state law, but I suggest that it is not the most apt of legal pluralism’s insights. For Annelise Riles, the most significant lesson of the legal pluralism experiment sprang from efforts to describe another’s “culture” objectively and is the awareness of the place of the storyteller in the creation of the story. From this starting premise, Riles traces anthropology’s development of new ways of knowing cultures that shift from gathering the facts of other cultures to the understanding that the anthropologist is “engaged in a collaborative, inter-subjective experiment in creative production, along with ‘others’ whom we regard as co-creators, not merely as ‘objects’ of the researcher’s study.”117 This process is a kind of lateral thinking, whereby anthropologists try to know the world by thinking through problems “as if ” through others’ knowledge devices. They are not necessarily seeking to analyze a foreign culture through the prism of that culture; the culture under examination might instead be their own. Riles gives the example of an English anthropologist analyzing debates about new reproductive technologies in the United Kingdom as if through the lens of Melanesian conceptions of personhood. This lateral thinking is a methodology that Riles has attributed to private international law techniques. I have sought to show that this “as if ” quality extends to disembedded state law more generally and can be understood more precisely by asking private international law’s nitty-gritty questions of other types of disembedded state law. In addition, the “as if ” quality of this thinking sums up the ethical imperative to try one’s best to re-create the other perspective. Arguably, this is particularly pronounced when the perspective is another state’s law. As Antony Anghie and others have elaborated, conceptions of state sovereignty have been marked by colonialism.118 And yet with sovereignty comes a respect formalized in doctrines of deference that serve as cautionary thresholds (for example, in Abbasi) and doctrines of comity in private international law. Commenting on a media report of a German judge’s refusal to expedite a divorce case brought by a Moroccan woman whose Moroccan husband abused her, Mohammad Fadel

State Law without Its State 91

criticized the judge’s reasoning that wife abuse is common in Morocco and the Koran sanctions such physical abuse. “[With] utter casualness [ . . .] this judge could make gross generalizations about Moroccans, the Quran and, implicitly, Islamic law. Apparently, she could make these factual conclusions without the assistance of any experts, whether anthropologists with some knowledge of Moroccan society or scholars of Islamic law, a large number of which reside in Germany.”119 Had this been a private international law case, Fadel maintains, the principle of comity would have been the ideal antidote for such legal Orientalism. He describes it as “a principle of neighbourliness . . . a spirit of respect, not one of condescension. In fact, judges . . . are required explicitly to engage in an act of empathy with the laws of the other legal system.”120 There are multiculturalists, feminists, proponents of deliberative democracy, and others who theorize in these nonstate law contexts what Fadel describes. However, private international law is distinctive—perhaps both within law and beyond—because this is bred in the bone of even its most technical of debates. Discussions about whether state law is gradually yielding to “law without nations” are most often premised on a contest between state and nonstate law, with participants adding weight to one side or the other. The starting point for this chapter was the observation that a simple state/nonstate divide leaves out the fact that a law can be made by one state and used by another. This fact is simultaneously evidence on the side of state law and on the side of those who see law “floating free of its embeddedness in the imagined community we call a nation.” As such, I have sought to show that it illuminates both the persistence of state law and the nature of nonstate law.

Notes Parts of this chapter draw on ongoing work with Ralf Michaels and Annelise Riles on conflict of laws and the idea of “theory through technique” to be developed from this field of law. See, for example, Karen Knop, “Citizenship, Public and Private,” Law and Contemporary Problems  (): ; Annelise Riles, “Cultural Conflicts,” Law and Contemporary Problems  (): ; Karen Knop, Ralf Michaels, and Annelise Riles, “International Law in Domestic Courts: A Conflict of Laws Approach,” American Society of International Law Proceedings  (forthcoming ). I am grateful to Ralf and Annelise for their generous support. I also thank Anthea Roberts and Rayner Thwaites for their helpful comments on an earlier version of the chapter.

92

karen knop

. In keeping with the editors’ usage, I include international law in the notion of “law without nations,” that is, nonstate law. I also follow their terminology in using “state” and “nation” interchangeably. . Jessica T. Matthews, “Power Shift,” Foreign Affairs , no.  (): , . . Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, ), . . Sassen has written of the national, including national legal systems: “It is here that the most complex meanings of the global are being constituted, and the national is also often one of the key enablers and enactors of the emergent global scale.” Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, ), . See also Saskia Sassen, A Sociology of Globalization (New York: W. W. Norton, ). .  U.S.  (). . Sujit Choudhry, “The Lochner Era and Comparative Constitutionalism,” International Journal of Constitutional Law  (): , . . Ibid., citing Heinz Klug, “Model and Anti-Model: The United States Constitution and the ‘Rise of World Constitutionalism,’” Wisconsin Law Review : . . Canadian Charter of Rights and Freedoms, s.. . []  S.C.R. . . Sujit Choudhry, “So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section ,” Supreme Court Law Review, d ser.,  (): , . . Ibid., . . Adam Liptak, “U.S. Court, a Longtime Beacon, Is Now Guiding Fewer Nations,” New York Times, September , , A. . The same question might be asked about certain types of federal systems. See “State Law as ‘Other Law’: Our Fifty Sovereigns in the Federal Constitutional Canon,” Harvard Law Review  ():  (contrasting opposition to foreign law citation with acceptance of the citation of state law in U.S. constitutional adjudication). . See, for example, Pierre Legrand, “Comparative Legal Studies and the Matter of Authenticity,” Journal of Comparative Law , no.  (): , –, –. . Evaluation is also part of a choice-of-law analysis because a court will not apply a foreign law that is regarded as contrary to its public policy, but the main purpose is application. . See, for example, Malcolm N. Shaw, International Law, th ed. (Cambridge: Cambridge University Press, ), –. . [] EWCA Civ , http://www.bailii.org/ew/cases/EWCA/Civ//. html. A later case raised the same issue with regard to British residents. Al Rawi v. Secretary of State for Foreign and Commonwealth Affairs, [] EWCA Civ  (Eng. C.A.),

State Law without Its State 93

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ//.html. For Abbasi in context, see Matthew Happold, “The Detention of Al-Qaeda Suspects at Guantanamo Bay: United Kingdom Perspectives,” Human Rights Law Review , no.  (): . . Sir David Williams, “Courts and Globalization,” Indiana Journal of Global Legal Studies  (): , . . Blackstone’s Commentaries on the Laws of England, bk. , . . U.S. Const. Art. I, s.. . Abbasi, para. . . Ibid., para. . . Later decided in Rasul v. Bush,  U.S.  (). . Abbasi, para. . See also Happold, “The Detention of Al-Qaeda Suspects,” . . []  S.C.R. . My discussion of this case draws on Karen Knop, “Reflections on Thomas Franck, Race and Nationalism (): ‘General Principles of Law’ and Situated Generality,” New York University Journal of International Law and Politics  (): , –. . Kindler v. Canada (Minister of Justice), []  S.C.R. ; Reference Re Ng Extradition (Can.), []  S.C.R. . . United States v. Burns, . . This was a practical consideration. Legally, the minister’s discretion was limited by the Canadian constitution. . United States v. Burns, . . Ibid., –. . Ibid., –. . Ibid., –. . Ibid., . . Compare Abbasi with Al Rawi, and Canada (Minister of Justice) v. Khadr, []  S.C.R. . . Mathias Rohe, “The Formation of a European Sharī‘a,” in Muslims in Europe: From the Margin to the Centre, ed. Jamal Malik (Münster: Lit Verlag, ), , . . Mathias Rohe, “Islamic Law in German Courts,” Hawwa: Journal of Women of the Middle East and the Islamic World  (): , . . Peter J. Spiro, “An Emerging International Law of Citizenship?” American Society of International Law Proceedings  (): . . Kim Rubenstein, “Rethinking Nationality in International Law,” American Society of International Law Proceedings  (): . . Gunther Teubner, “‘Global Bukowina’: Legal Pluralism in the World Society,” in Global Law without a State, ed. Gunther Teubner (Aldershot: Dartmouth, ), , . . See Robert Wai, “Transnational Liftoff and Juridical Touchdown: The Regulatory

94

karen knop

Function of Private International Law in an Era of Globalization,” Columbia Journal of Transnational Law  (): . . See, for example, Shaw, International Law, –. . This, of course, assumes that the state wants other states’ laws to look like its own. . Quoted in Liptak, “U.S. Court, a Longtime Beacon.” . Adam M. Dodek, “Canada as Constitutional Exporter: The Rise of the ‘Canadian Model’ of Constitutionalism,” Supreme Court Law Review, d ser.,  (): , , –. . Anne-Marie Slaughter, “The Real New World Order,” Foreign Affairs  (September/October ): . See also Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, ). . Slaughter, A New World Order, chap. ; Anne-Marie Slaughter, “A Typology of Transjudicial Communication,” University of Richmond Law Review  (): . . Anne-Marie Slaughter and William Burke-White, “The Future of International Law Is Domestic (or, The European Way of Law)” Harvard International Law Journal  (): , –. . See generally, for example, Benedict Kingsbury, “Sovereignty and Inequality,” European Journal of International Law  (): . . Hannah L. Buxbaum, “From Empire to Globalization . . . and Back? A Post-Colonial View of Transjudicialism,” Indiana Journal of Global Legal Studies  (): , . . See, for example, Sandra Day O’Connor, Associate Justice, Supreme Court of the United States, Remarks (Southern Center for International Studies, Atlanta, Georgia, October , ), http://www.southerncenter.org/OConnor_transcript.pdf. . James Allan, Grant Huscroft, and Nessa Lynch, “The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?” Otago Law Review  (): , , . . Dodek, “Canada as Constitutional Exporter,” , . An empirical survey of Supreme Court of Canada constitutional rights cases from  to  found that half of the Court’s references to foreign law were to U.S. constitutional law and  percent of the remainder to UK cases. Bijon Roy, “An Empirical Survey of Foreign Jurisprudence and International Instruments in Charter Litigation,” University of Toronto Faculty of Law Review  (): , –, . . Arun K. Thiruvengadam, “In Pursuit of ‘the Common Illumination of our House’: Trans-Judicial Influence and the Origins of PIL Jurisprudence in South Asia,” Indian Journal of Constitutional Law  (): , , . . See, for example, Frederick Schauer, “The Politics and Incentives of Legal Transplantation,” in Governance in a Globalising World, ed. Joseph S. Nye and John D. Dona-

State Law without Its State 95

hue (Washington, DC: Brookings Institution Press, ), , ; Thiruvengadam, “In Pursuit of ‘the Common Illumination of our House,’” . . See, for example, Christopher McCrudden, “A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights,” Oxford Journal of Legal Studies  (): , –. . See, for example, Choudhry, “The Lochner Era”; Kim Lane Scheppele, “Aspirational and Aversive Constitutionalism: The Case for Studying Constitutional Influence through Negative Models,” International Journal of Constitutional Law  (): . . Roy, “An Empirical Survey of Foreign Jurisprudence,” . . Edward M. Morgan, “Traffic Circles: The Legal Logic of Drug Extradition,” University of Pennsylvania Journal of International Law  (): . . Ibid., . . Compare Judith Resnik, “Law as Affiliation: ‘Foreign’ Law, Democratic Federalism, and the Sovereigntism of the Nation-State,” International Journal of Constitutional Law  (): , –. . Rayner Thwaites, “A Coordinated Judicial Response to Counterterrorism?: Counterexamples,” in Mapping Transatlantic Security Relations: The EU, Canada and the War on Terror, ed. Mark Salter (Routledge, forthcoming ). . See, for example, Mark C. Rahdert, “Comparative Constitutional Advocacy,” American University Law Review  (): , –. .  U.S.  (). .  U.S.  (). . Lawrence, . . Mohammad Fadel, “German Judge and Legal Orientalism” (posted March , ), http://archive.eteraz.org/user/mohammadfadel/diary, now available only at http://progressiveislam.org/german_judge_and_legal_orientalism. . Edward W. Said, Orientalism (New York: Vintage Books, [] ). . On the tendency, see, for example, Sujit Choudhry, “Migration as a New Metaphor in Comparative Constitutional Law,” in The Migration of Constitutional Ideas, ed. Sujit Choudhry (Cambridge: Cambridge University Press, ), , –. . See Gerald L. Neuman, “International Law as a Resource for Constitutional Interpretation,” Harvard Journal of Law and Public Policy  (): , –. See, further, Vicki C. Jackson, Constitutional Engagement in a Transnational Era (Oxford: Oxford University Press, ), –. . The Supreme Court of Canada has also used surveys of foreign jurisdictions in other constitutional cases to demonstrate an established or emerging pattern. See Roy, “An Empirical Survey of Foreign Jurisprudence,” –. . In practice, the use of international law in domestic courts may not live up to this distinction. For example, the demonstration that an international custom exists

96

karen knop

may cite only a few select states, just as a comparative analysis may. See Anthea Roberts, “Comparative International Law?” work in progress, August , . . The image is from Roper v. Simmons,  U.S.  () at  (Scalia, J., dissenting). See also USSC Chief Justice Roberts at the confirmation hearing on his nomination as Chief Justice, September , , available at http://www.post-gazette.com/ pg//.stm. For a parsing of this argument, see Christopher McCrudden, “Judicial Comparativism and Human Rights,” in Comparative Law: A Handbook, ed. Esin Örücü and David Nelken (Oxford: Hart Publishing, ), , –. . See Practice Direction on the Citation of Authorities, []  Weekly Law Reports  (Eng.) (issued by the Lord Chief Justice of England and Wales, April , ), paras. –, available at http://www.hmcourts-service.gov.uk/cms/.htm. . See, for example, Canadian Charter of Rights and Freedoms, s. (“such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”). . See Cheryl Saunders, “The Use and Misuse of Comparative Constitutional Law,” Indiana Journal of Global Legal Studies  (): , –; Vicki C. Jackson, “MultiValenced Constitutional Interpretation and Constitutional Comparison: An Essay in Honor of Mark Tushnet,” Quinnipiac Law Review  (): , –. . For example, the Supreme Court of Canada in its constitutional cases refers to foreign law much more often than international law. Roy, “An Empirical Survey of Foreign Jurisprudence,” , . See Jackson, Constitutional Engagement, – (discussing the view that in contrast to foreign law, international law is more “law-on-the-books” or “cheap talk”). . The remainder of this section draws on Knop, “Citizenship, Public and Private,” Pt. IV. . For one typology of the state’s ways of dealing with nonstate law, see Ralf Michaels, “The Re-State-ment of Non-State Law: The State, Choice of Law, and the Challenge from Global Legal Pluralism,” Wayne State Law Review  (): , – (rejection, incorporation, deference, and delegation). . See, for example, Prakash A. Shah, “Attitudes to Polygamy in English Law,” International and Comparative Law Quarterly  (): , . . Some states use a combination of choice-of-law rules. . See Marion Boyd, “Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion” (December ), http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf; “Ontario Premier Rejects Use of Sharia Law,” CBC News, September , , http://www.cbc.ca/story/canada/national////shariaprotests-.html. . In , polygamy charges against two religious leaders of a Mormon community in the interior of British Columbia were dismissed for procedural reasons. Rather

State Law without Its State 97

than appeal the court’s decision, the BC attorney general brought a reference to the province’s Supreme Court to determine whether the criminal prohibition against polygamy is constitutional. Blackmore v. British Columbia (Attorney General) (),  B.C.L.R. (th)  (S.C.); Reference re Criminal Code,  (Canada),  BCSC . . There are some differences between English and Canadian law. For the Canadian position and comparison, see Martha Bailey et al., “Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada,” in Angela Campbell et al., Polygamy in Canada: Legal and Social Implications for Women and Children. A Collection of Policy Research Reports (Status of Women Canada, November ), available at http:// www.vancouversun.com/pdf/polygamy_.pdf, at – of paper. . See Lawrence Collins, ed., Dicey, Morris and Collins on the Conflict of Laws, th ed., vol.  (London: Sweet and Maxwell, ), –; J. H. C. Morris, The Conflict of Laws, ed. David McClean and Kisch Beevers, th ed. (London: Sweet and Maxwell, ), –. . See “DOMA Watch, Issues by State,” http://www.domawatch.org/stateissues/index.html. . City of Toronto marriage license statistics are organized by individuals, and the members of the couple may come from or live in different places. “Map of the Week: Same-Sex Marriage in Toronto,” Toronto Star, June , , http://thestar.blogs.com/ maps///map-of-the-week-samesex-marriage-in-toronto.html (data from June , , to May , ). . “Civil Marriage Trail : From N.Y. to T.O.,” January , , http://www. samesexmarriage.ca/advocacy/marriage_trail.htm; “Gay Couples Travel to Canada for Valentine’s Day Weddings,” USA Today, February , , http://www.usatoday.com/ news/world/---canada-marriage_x.htm. For a more recent example of the impact of recognition, see Tim Craig, “Uproar in D.C. as Same-Sex Marriage Gains,” Washington Post, May , , http://www.washingtonpost.com/wp-dyn/content/article////AR_pf.html (approval of bill to recognize same-sex marriages performed elsewhere seen as precursor to debate over whether to legalize same-sex marriage in the city). . See Godfrey v. Spano; Lewis v. New York State Department of Civil Service,  N.Y. d  (). . See Brenda Cossman, “Betwixt and Between Recognition: Migrating Same-Sex Marriages and the Turn Toward the Private,” Law and Contemporary Problems  (): . . See Aeyal Gross, “Israel’s Supreme Court Orders Registration of Same-Sex Marriage Conducted in Canada,” Lesbian/Gay Law Notes : , , available at http:// www.nyls.edu/user_files////////ln.pdf. . See, generally, Maarit Jänterä-Jareborg, “Foreign Law in National Courts: A Comparative Perspective,” Recueil des Cours  (): .

98

karen knop

. For a fuller account, see Lawrence Collins, Dicey, Morris and Collins, vol. , ch., as supplemented by Lord Collins of Mapesbury, ed., Third Cumulative Supplement to the Fourteenth Edition, Dicey, Morris and Collins on the Conflict of Laws (London: Sweet and Maxwell, ), ch.; Janet Walker, Castel and Walker Canadian Conflict of Laws, th ed., vol.  (Markham: LexisNexis/Butterworths,  updated electronically), ch.. . On the possibilities of unproven and misproven foreign law in such a system, see Richard Fentiman, “Foreign Law in English Courts,” Law Quarterly Review  (): , –. . Riles, “Cultural Conflicts,” . . For the purpose of general comparison, I leave aside the tension between private international law’s aspiration to accuracy, as reflected in the need for proof of foreign law, and the traditional presumption that, in the absence of any, or adequate, evidence of foreign law, foreign law is presumed to be the same as the law of the jurisdiction in which the case is heard. Changing judicial attitudes toward this presumption are analyzed in Richard Fentiman, “Laws, Foreign Laws, and Facts,” Current Legal Problems  (): , –. See also Lord Collins of Mapesbury, Third Cumulative Supplement, –. . Exceptions include Cheryl Saunders, Vicki Jackson, and Sujit Choudhry, discussed below, and see discussion in Jackson, Constitutional Engagement, – (on fair and accurate usage and procedures for gathering and considering foreign law). For a critic’s view, see Richard Posner, “No Thanks, We Already Have Our Own Laws,” Legal Aff., July–August , available at http://www.legalaffairs.org/issues/July-August-/ feature_posner_julaug.msp (pointing to the problem of using foreign opinions without knowledge of the complex socio-historico-politico-institutional background from which they emerge). . See Gib Van Ert, Using International Law in Canadian Courts, d ed. (Toronto: Irwin Law, ), –; Anne Warner La Forest, “Evidence and International and Comparative Law,” in The Globalized Rule of Law: Relationships between International and Domestic Law, ed. Oonagh E. Fitzgerald (Toronto: Irwin Law, ), ; The Hon. Justice Louis Le Bel and Gloria Chao, “The Rise of International Law in Canadian Constitutional Litigation: Fugue or Fusion? Recent Developments and Challenges in Internalizing International Law,” Supreme Court Law Review, d ser.,  (): , –. . Saunders, “The Use and Misuse,” –. Along similar lines, Vicki Jackson notes that in a recent U.S. Supreme Court case on the constitutionality of the juvenile death penalty, “the virtual unanimity of countries around the world—across a range of legal systems—arguably mitigates the need for the more detailed questions of why we choose particular countries as comparators, or of exactly how comparable their law and legal culture are.” Jackson, “Multi-Valenced Constitutional Interpretation,” . . Choudhry, “The Lochner Era,”  [emphasis in original]. See also, for example, Aharon Barak, “The Supreme Court,  Term—Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy,” Harvard Law Review  (): ,  (“Com-

State Law without Its State 99

parative law awakens judges to the potential latent in their own legal systems”),  (“The judge does not refer to the detail of the foreign laws. Rather he examines the function that the legal institution fulfills in the two systems”). . Mark Tushnet, “The Possibilities of Comparative Constitutional Law’,” Yale Law Journal  (): , –. . See, for example, Eric A. Posner and Cass R. Sunstein, “The Law of Other States,” Stanford Law Review  (): , arguing that the Condorcet Jury Theorem, which states that under certain conditions a widespread belief accepted by a number of independent actors is very likely to be true, supports consultation of foreign materials when specific criteria are satisfied. . See, for example, the earlier discussion of United States v. Burns. . See, for example, Jeremy Waldron, “Foreign Law and the Modern Ius Gentium,” Harvard Law Review  (): , –. . See, for example, Lorraine E. Weinrib, “Constitutional Conceptions and Constitutional Comparativism,” in Defining the Field of Comparative Constitutional Law, ed. Vicki C. Jackson and Mark Tushnet (Westport, CT: Praeger, ) , –, –; Lorraine E. Weinrib, “The Postwar Paradigm and American Exceptionalism,” in The Migration of Constitutional Ideas, ed. Sujit Choudhry (Cambridge: Cambridge University Press, ), , –. . The method for ascertaining the law need not affect its character as law. As has been observed, “Something is not fact simply because one does not know the law and proof is required.” La Forest, “Evidence and International,” . . This having been said, foreign law is a question of fact “of a peculiar kind.” Parkasho v. Singh [] P , . For a nuanced account, see Fentiman, “Laws, Foreign Laws, and Facts,” –. . On the distinction between a functional and a normative rationale, see Neuman, “International Law as a Resource,” ; McCrudden, “Judicial Comparativism and Human Rights,” –. . Riles, “Cultural Conflicts,” –. . Oppenheimer v. Cattermole, [] AC . . Kuwaiti Airways Corp. v. Iraqi Airways Co. (Nos.  and ), [] UKHL ;  AC . . See Scheppele, “Aspirational and Aversive Constitutionalism.” . For two recent introductions to the literature on global legal pluralism in particular, see Paul Schiff Berman, “The New Legal Pluralism,” Annual Review of Law and Social Science  (December ): ; and Ralf Michaels, “Global Legal Pluralism,” Annual Review of Law and Social Science  (December ): . . See Sally Engle Merry, “Legal Pluralism,” Law and Society Review  (): , –. . T. W. Bennett, “Comparative Law and African Customary Law,” in The Oxford

100

karen knop

Handbook of Comparative Law, ed. Mathias Reiman and Reinhard Zimmerman (Oxford: Oxford University Press, ), , –. . See Merry, “Legal Pluralism,” – (discussing subordinate groups choosing to draw on the symbols and meanings of the state legal system). . See, for example, Shalini Randeria, “Glocalization of Law: Environmental Justice, World Bank, NGOs and the Cunning State in India,” Current Sociology , no. / (): . See also Boaventura de Sousa Santos and César A. Rodríguez-Garavito, “Law, Politics, and the Subaltern in Counter-Hegemonic Globalization,” in Law and Globalization from Below: Towards a Cosmopolitan Legality, ed. Boaventura de Sousa Santos and César A. Rodríguez-Garavito (Cambridge: Cambridge University Press, ), , – (on subaltern cosmopolitan legality); Balakrishnan Rajagopal, “Limits of Law in Counter-Hegemonic Globalization: The Indian Supreme Court and the Narmada Valley Struggle,” in Law and Globalization from Below: Towards a Cosmopolitan Legality, ed. Boaventura de Sousa Santos and César A. Rodríguez-Garavito (Cambridge: Cambridge University Press, ), . . Riles, “Cultural Conflicts,” . . Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, ). . Fadel, “German Judge and Legal Orientalism.” . Ibid.

Law without Nation? The Ongoing Jewish Discussion suzanne l ast stone

I. Introduction In his preface to Law and Revolution, Harold Berman urged us “to overcome . . . the identification of all our law with national law and all our legal history with national legal history.”1 He penned these words in  when, he claimed, an age was coming to an end: the age of the Western legal tradition. By the mid-twentieth century, that tradition, born in revolution, was itself facing a revolutionary crisis—the disintegration of community. “Bonds of race, religion, soil, family, class, neighborhood and work community” had “dissolved into abstract and superficial nationalisms,” concomitant with “the decline of unity and common purpose in Western civilization as a whole.”2 Religion and law, Berman noted, are the traditional symbols of community in the West, yet religion became a private matter and law a matter of practical expediency. “Neither expresses any longer the community’s vision of its future and its past; neither commands any longer its passionate loyalty.”3 Berman was engaged in an intellectual retrieval project. He hoped to cure the ills of the twentieth century by looking backward at the Western legal tradition and resuscitating the integration of religion and law—at least, at the metaphoric level in order to restore to law a transcendent or utopian cast—along with an integrative jurisprudence that did not reduce law to a set of rules or technical devices nor merely identify it with the positive command of the national sovereign. Although Berman mentions vaguely some countersigns to the nationalist idea—increased economic, cultural, and scientific interdependence on a regional and worldwide basis—he could hardly anticipate the immense transformations of the last thirty years as the nation-state yielded to the market-state and the twin phenomena of globalization and privatization took wing. On the heels

102

suzanne last stone

of these transformations, law, too, is changing dramatically as it develops new mechanisms to support this interdependence. The existence of the European Union, together with the globalization of the commercial world, has propelled the search for transnational law—general principles of law that transcend the law of any nation-state—and that can be applied to purely internal and not only international cases.4 Talk of a global constitutionalism, over and above divisions of nationalism and ethnicity, of a ius humanitatis, a transnational humanitarian and human rights law, is now commonplace. Thus, Europeans are debating the need for a new ius commune, a common legal tradition that transcends the law of any nation-state, and even the United States is engaging the community of nations by resorting to foreign law in constitutional interpretation. The new alliances across the globe and a growing cosmopolitanism, however, have not yet produced a genuine world legal community nor restored a common sense of the transcendent purpose of law. If anything, law has become more technical, more bureaucratic, and more mass-produced. Instead, in answer to the social disintegration and loss of community Berman identified, increased globalization has been accompanied by the countervailing fragmentation of national identities into local identities and by a resurgence of religious belief. Indeed, if the last five hundred years of Western history were marked by the emergence of utopian political movements aimed at creating perfection in the immanent reality of this world—Jacobinism, communism, the Enlightenment, the American and French revolutions, and National Socialism—today we are witnessing the rise of trans-state, transnational utopian religious movements. These movements, by and large, aim to achieve this perfection through the construction of new collectivities and reconstruction of collective boundaries.5 Even apart from any utopian aim, world historical religions are being constituted for the first time as “de-territorialized, transnational global imagined communities, detached from the societal settings in which they were traditionally embedded.”6 The simultaneous globalization and fragmentation of political life has led many theorists to conclude that we are in a period of “paradigmatic transition,”7 in which the decline of the significance of national boundaries and of nationstates as the privileged unit of analysis is merely the most visible sign. While the decline of nation-states, and their loss of charisma, has been a large topic in the academy, it is only recently that attention has been given to the challenge of

Law without Nation?

103

globalization for the project of jurisprudence and legal theory. The new division of social life into global and local units puts into question, as Berman foresaw, two fundamental premises of modern understandings of law: the identification of law with the political agency of the state and the idea of law as a scientific inquiry, divorced from the subjective systems of religion and morality. Yet the major jurisprudential theories dominating twentieth-century Continental European and Anglo-American legal thought, particularly positivist models such as the one put forward by H. L. A. Hart, are inextricably entangled with these premises. A central task of jurisprudence is to give a picture of law adequate to sustain a legal culture, but what picture of law can coherently explain contemporary legal practices? While no new cosmopolitan jurisprudential theory has yet emerged, many legal theorists grappling with this question cite legal pluralism as central to any new descriptive project.8 As Brian Tamanaha points out, it has been heralded as the “key concept in a post-modern view of law,”9 and “capable of identifying authentic legal phenomena operating on a global level.”10 This new turn to legal pluralism comes, paradoxically, just as that descriptive project seemed to have fallen apart due to deep division over the foundational question of what is the concept of law.11 Nonetheless, as Tamanaha has recently argued, if one adopts a nonessentialist view of law as the social practices to which people conventionally attach the label “law,” such as religious law, international law, or natural law,12 the focus shifts to the ways these “legal” systems coexist and interact, which has the potential to yield a richer picture of law. I want to single out two recent accounts of how plural legal orders interact, especially as it relates to globalization. First, the emergence of the local and the global, in contrast to the nation-state, as the potentially privileged units of analysis in the postmodern world, has provided an opportunity to resuscitate an older intellectual category: the particular and the universal. Thus, Patrick Glenn, like Berman before him, argues that the rise of transnational law returns us to jurisprudential models long obscured by the dominance of contemporary positivism, the jurisprudential conception that accompanied the rise of national or municipal legal systems. Transnational law, Glenn urges, is the old system of a common law, a universal law in relation to its “inescapable intellectual companion,” the particular law.13 This universal law, although it may originate outside of the particular legal community, can be drawn on even in

104

suzanne last stone

an internal context. Thus, for Glenn as for Berman, the coexistence of universal and particular legal systems within a single complex legal order, was a longstanding conceptual instrument of the Western legal tradition, and is at the heart of the new transnational turn. If Glenn emphasizes a return to premodern law, a thinker such as Boaventura de Sousa Santos sees in the contests between the global and the local—between state and nonstate law—opportunities to return to law a utopian dimension. Santos argues against the artificial intellectual distinction between state and civil society, which confines politics to the state while excluding it from other sites of social power.14 Instead, nonstate, local forms of law embedded in society, which oppose state law, have for him emancipatory potential. Islamic law, he argues, is one example of a local law embedded in society that is used to counter the dominant law of the modern nation-state.15 Thus, Santos revives in new form Berman’s project of resuscitating the connection between law and religion. For Santos, however, that connection is one of dynamic interlegality, in which each legal system challenges the other. I intend to explore these two themes—the relationship of the universal and the particular as well as the utopian use of nonstate law—in the context of investigating the Jewish legal tradition’s complex relationship today to the nation-state of Israel. This legal tradition constituted, from the beginning, a revolution against the idea of identifying law with territory or state. While the Bible tells the story of origin of a legal system intended for a sovereign Jewish nation—that is, a national law for Jews living in their land and pursuing a political life—the rabbis transformed the biblical conception and created a transnational legal culture known as the halakha. The ordinary features of statehood—political structures—and the ordinary features of collective identity so apparent in the Bible—from land to language—were largely subsumed into the halakha, which claimed to be both a portable political entity16 and the new, exclusive definition of national identity. The rise of a new Jewish national center and site of national identity in the State of Israel is profoundly challenging this exilic pattern. Indeed, it is prompting halakhic thinkers to re-envision the law, either by retrieving a new version of the older biblical model of a national law or by carving out new roles for halakha vis-à-vis the nation-state. The contemporary emergence of new conceptions of halakha along nationalist lines, and the counter-responses it has evoked, provides a fascinating

Law without Nation?

105

opportunity to re-examine the conceptions of law that underlay halakha and supported it as a transnational legal culture. In contrast to the usual depiction of halakha today as comprehensive, self-sufficient, and unified 17—aspiring to create a total, sacred society—I offer an alternative picture of halakha as the coexistence of universal and particular legal systems within a complex legal order. These systems are conceptually and normatively distinct, although they interact within the overarching halakhic framework. The universal is not the domain of the transcendent, however, as moderns have come to think. Instead, the universal is that part of halakha shared with all conventional societies. The particular is over and above the universal; it is the domain of true justice or the sacred and, to the extent it is embedded in civil society, is available to critique and counter the dominant law of the nation-state. In the next section, I offer some necessary historical background by tracing the transformation of the biblical view of a national, collective law to the classical rabbinic transnational model, and then outlining the tensions inaugurated within Jewish legal thought with the rise of the modern nation-state and especially the State of Israel.

II.  The Return of the Repressed: From the Bible to the State of Israel18 According to its story of origin, the Jewish legal system came into being by way of a historical covenant at Sinai. The covenant was made with a particular people, orienting Jewish collective life in a particularist direction. Moreover, the story tells of the founding of a nation organized for political action. Not only is biblical law concerned with issues pertaining to the land of Israel and to the establishment of political structures, it also addresses the rights of citizens and resident strangers within the nation-state. In short, the Hebrew Bible presents law for national, political life. This is religious nationalism: the religious law is the national law of the people of Israel. The biblical metaphors of intentional disobedience to the law revolve around treason and betrayal no less than sin.19 This national, political, and religious order came to an end with the destruction of the Second Temple in  C.E. An alternative concept of collective identity emerged: a collective dedicated to the observance of the law, which, in turn, was conceived of as transnational in scope. The Bible became Judaism’s

106

suzanne last stone

canonical national history yet it is only part of the Jewish legal system (halakha), which is composed of the written law (the first five books of the Bible describing the law received by Moses) and the oral law (recorded in the Mishna and Talmud). Indeed, the biblical picture of a religious polity was, to a large extent, simply transferred over to the halakha even though it was developed in exile without a state, or official institutions such as a Supreme Court, or national center. It was believed that halakha created all the political institutions necessary for continued self-governance across the globe. As Eliezer Schweid put it, the halakha functioned as “a portable political entity.”20 This conception of the law reverses the biblical image: the law itself constitutes the nation, and without the law there would be no nation. This notion only solidified with the gradual transformation of the Talmud from a scholastic document into a devotional object—a new site of divine space taking the place of the Temple or the arena of history.21 The law book—that is, the Talmud—became the new embodiment of the nation. This was a revolutionary transformation, and one can catch many glimpses of the early rabbinic struggle with the biblical conception of Torah as national law. Perhaps the most dramatic concerns the issue of what Paul Kahn has termed law’s space—its borders and jurisdiction.22 Spinoza, more than anyone else, articulated the problem. From the perspective of the Bible, as well as good political theory, the law was obligatory only in the land under conditions of sovereignty.23 Halakha can have no authority in the diaspora and is not binding on the Jewish community. The talmudic rabbis raised this very problem, questioning whether God had authority to punish violations of the law in the diaspora and sought to resolve it by positing a theory of tacit consent by the people during exile.24 The national-collective orientation of the Bible also was transformed. The biblical conception of national law portrays rewards and punishments for performing the law in national-collective terms: the nation as a whole performs the law and reaps material blessings or punishment. In late antiquity, however, religious orientations arose that were more focused on the individual and on individual salvation. Paul’s famous critique of “the law as death” transforms the biblical focus on collective performance into one of individual performance. Viewed from this new individualist perspective, no individual can adequately perform the law, and hence, it is a snare. The rabbis, too, transformed the national-collective orientation of the law into a far more individualized system.

Law without Nation?

107

As Shlomo Fischer points out, “[O]bservance of Jewish law in exile became incumbent on the individual Jew, or in regard to a number of cases, on the local community, which was conceived as being constituted by individual Jews.”25 While “the obligations upon the individual Jew derived from his membership in the primordial community, nonetheless, “the legal-behavioral implications of this membership are worked out in regard to the individual.”26 The rabbinic abolition of collective punishment, despite its biblical pedigree, is but one example of how deep the new individualist orientation ran. The rabbinic conception of the law as the sole locus of national identity and as a fully functional, albeit portable, political entity succeeded in no small part because the imperial corporatist models in which Jews were situated cooperated. Contrary to what Salo Baron labeled the lachrymose view of Jewish history, the legal and political autonomy Judaism enjoyed under Roman rule, feudal Europe, and the Ottoman Empire was remarkable. Jews maintained their own court systems throughout this time and possessed sufficient legal autonomy to enforce traditional Jewish law. Enforcement was effected by means of a range of sanctions―from corporal punishments to excommunication―and while they were ordinarily deprived of the power to execute criminals, the state’s execution of Jewish offenders was sometimes a joint affair, in consultation with the rabbinic authorities. To be sure, foreign rule occasionally intruded on autonomy, and the tradition developed early on, in the fourth century, a Jewish version of “render under Caesar, what is Caesar’s.” The Babylonian amora Samuel is credited with formulating the principle that “the law of the kingdom is the law.” In terms of duties owed to foreign rulers, the principle originally had limited practical application. The rise of the modern nation-state put an abrupt end to this era. Large parts of the halakha fell under the nation-state’s commitment to the unity of law and its monopolization of legal subjects formerly left to subgroup elaboration and enforcement. The standard history of Jewish legal transition to the new political formation of the modern nation-state tells a story of modern rupture and pragmatic accommodation. These accounts emphasize the post facto legitimization of the ideology of the modern nation-state, made possible because the halakha, like any rich legal tradition, had something available “to hang necessity and opportunity on.”27 According to this standard history, at the dawn of the Jewish emancipation, the old principle “the law of the kingdom is the law” was seized in order to justify the trading of Jewish sovereignty over governmental, communal, civil, and domes-

108

suzanne last stone

tic matters for equal citizenship rights. The principle thus facilitated and legitimated the reorganization of Judaism from a semisovereign entity into a voluntary organization. The principle figured prominently in the responses of the Assembly of Notables to Napoleon I’s questions about the suitability of Jews to fulfill the obligations incumbent upon them as French citizens. From then on, Judaism took its shape as a private religious faith, concentrating mainly on the performance of private rituals, with the retention of overlapping sovereignty with state only on issues relating to marriage and divorce. Again, according to the standard history, the principle became Judaism’s corollary for the division of the secular and religious realms of life, and in the process, was responsible for the modern demise of the halakha from a distinctive system governing all aspects of life—the social, civil, communal, political, and religious—to a manual for ritual performance. The rabbinic responses to Napoleon’s questions were cunningly framed, and “historians often regarded the answers as evasive and not truly representative of contemporary Jewish opinion.”28 One answer, directly responsive to Compte Clermont-Tonnere’s famous challenge,29 included the statement that “Jews no longer constitute a separate nation and they regard their incorporation into the great Nation as a privilege and a political redemption.” This answer was probably a compromise to satisfy both the traditionalist and reformer camps that composed the Assembly.30 Yet, despite the social upheavals and pace the historians, the conceptual basis for life as citizen within a host-nation already had been laid down by the talmudic abandonment of the biblical national-collectivist conception of identity in favor of an individualist orientation. Debate over the value of religious coercion as opposed to freely chosen observance could, indeed, be found within the talmudic tradition. So too the contraction of the sphere of halakha to ritual matters, as we will see later, had genuine halakhic purchase. From Moses Mendelssohn on through the rise of Zionism, modern Jewish thought engaged in a rich dialogue about the changes that needed to be made in the traditional Jewish vision of halakha to adjust to the new reality of the modern nation-state and, with it, the new phenomenon of a secular Jewish identity. With the modern separation of domains of life into separate spheres, argument centered for the first time on whether halakha was a political theory, a law, a religion, or an ethic. Mendelssohn himself followed Spinoza, although he arrived at a different conclusion. He, too, agreed that enforcement of the religious law was justified only when God Himself was the actual sovereign.31 Thus, the commandments of the

Law without Nation?

109

Torah had no obligatory validity from the institutional viewpoint of the diaspora. However unlike Spinoza, Mendelssohn believed that all Jews were obliged to perform the Torah’s commandments, which were moral obligations of the individual Jew to his creator, not legal obligations.32 Therefore, Mendelssohn called for the abolishment of the portable political institutions of the halakha, such as the excommunicative authority of the Jewish community.33 This was, for Mendelssohn, the true Jewish view—the culmination of the individualist orientation of the talmudic revolution. If Mendelssohn moved from politics to ethics, neo-orthodoxy moved from politics to law, insisting that the halakha was an autonomous legal system or “pure theory of law,” an argument parallel to the rise of modern legal positivism.34 Intertwined with this argument was renewed attention to an age-old question about the relationship of the universal and particular elements of Judaism. The prophetic writings proclaimed a universal message of peace and social harmony when the nations of the world worship the one God. Rabbinic thought elaborated on the universal dimension by positing social laws that were shared obligations of all legal societies in contradistinction to the primarily ritual laws particular to Jews. And underlying both was the persistent issue of a national-collective Jewish identity apart from halakha. The participants in this debate differed primarily over whether the Jewish community should give up its collective national identity, retaining only the sacral, only its universal parts, or whether it should seek to retain a national identity by trying to “find a way to achieve a compromise with the state.”35 While the reformers took the position that what is primary for Judaism is ethical monotheism, the more traditionally minded Jews continued to insist that the exclusive organizing principle of Jewish collective identity was obedience to halakha. No other Jewish national expression was required. But looking backward after the passage of a century, even some non-orthodox thinkers such as Mordechai Kaplan located one of the major ills of contemporary Judaism in its capitulation to the modern political order. In Judaism as a Civilization, Kaplan begins his list of the factors of Jewish disintegration with the political factor. For Judaism, the idea of citizenship in the nation-state is more pernicious, Kaplan writes, than for other religious groups, because Judaism was intended as a total society. Whereas before Judaism was conceived as a nation and as politically and culturally autonomous, and the halakha was conceived as a comprehensive Jewish national law, Judaism is now reduced to a private religion. He indicts neo-

110

suzanne last stone

orthodoxy in particular for its abandonment of much of the former subject matter of the halakha. Quoting from the Vilna preface to an edition of the sixteenth-century code of Jewish Law, the Shulkhan Aruch, which states that much of the laws contained therein are no longer operable because of the principle “the law of the land is the law,” Kaplan states: “We are amazed to find that the most important elements of Jewish law are as obsolete in neo-orthodoxy as they are in Reformism.”36 These eighteenth- and nineteenth-century debates set the stage for the contemporary contests over modern Jewish nationalism. Zionism, even before the establishment of the State of Israel, posed a major crisis to the traditional mindset. One issue was its identification as a secular, modern movement—a title that made it automatically inimical to religion. The issue I wish to focus on, however, is its wish to reactivate, in the present, the biblical national-collective worldview, such as territorial sovereignty and national-collective institutions of military and state. Most of the Jewish religious movements current in Israel are modern utopian movements. However they differ markedly in how they interpret the meaning of history. The ultra-religious do not relate to the state as a religious vehicle or as any means for perpetuating Jewish collective national identity. For them, “Jewish collective identity has become ‘bracketed’-- relegated to the distant biblical past or messianic future” and perpetuated in the present only through the community of the faithful.37 The religious Zionist movement, however, understands the establishment of the State of Israel both as religiously significant and a vehicle for reviving halakha as national law in the nation. Some wings of this movement see it in vivid messianic terms, as the beginning of the fulfillment of the redemption. For them, the state provides the opportunity to resuscitate the original biblical ideal of law in the nation and to re-sacralize the secular. The more sober, non-messianically oriented wings also see it as an opportunity to revive halakha as a religio-national law and Jewish national-cultural expression by developing the nascent democratic strains within it.38 Both wings of this movement have produced a remarkably large body of distinctive law that deals with subjects unaddressed for nearly two millennia, creatively fashioned out of sparse indigenous sources. This is not the place to linger on the fascinating question of whether the halakha could, indeed, be brought up to date through creative reinterpretation to address the needs of a fully functioning modern democratic state. Instead, I would like to concentrate on the different models of halakha that have emerged in reaction to

Law without Nation?

111

the establishment of the Israeli State. The impact of Zionism on contemporary halakhic methodology has been extensively addressed, especially by Arye Edrei, whose work I draw on here.39 Less attention has been paid, however, to the relationship of contemporary models of halakha to long-standing debates about the very nature of the halakha. Is it an ethic, a political theory, or an autonomous law? Is it addressed to individuals or collectives? Is it comprehensive or does it have gaps? What is the relationship of the universal domain it posits to the particular? My aim here is to show how contemporary responses of halakhic jurists to the establishment of the State of Israel are related to these numerous long-standing arguments within the Jewish legal tradition over the proper description of halakha itself.

III.  Three Contemporary Models of Halakha Among modern and contemporary halakhic thinkers and decisors in Israel, at least three different models of halakha have emerged that I have variously termed: the traditional transnational model (or “law as the nation”), the national-organic model (“law in the nation”), and the cosmopolitanism model (“law interacting with the nation”). The traditional transnational or “law as the nation” school of thought attempts to perpetuate a distinct post-talmudic conception of halakha as autonomous, pure transnational law: a normative framework independent of any philosophic, political, or mystical ideologies, whether religious or secular. This approach essentially treats the nation-state, and its institutions and policies, whether a host-state or the State of Israel, as external conditions or circumstances, to which the transnational halakha is objectively applied.40 Thus, the Jewish State is, at best, a neutral phenomenon like any other nation-state—a new political formation to be assessed under the traditional, autonomous legal categories of the transnational halakha. Pursuant to this approach, a variety of halakhic principles and doctrines are canvassed and marshaled to assess whether discrete and particular acts of statecraft, from war to secular legislation to a secular court system, are compatible with pre-existing halakhic rules. This school continues to reject a Jewish national identity apart from the transnational halakha itself. In contrast, the nationalist (“law in the nation”) model revives the original biblical conception of law as the law of a sovereign nation whose identity is

112

suzanne last stone

defined in collective, national terms. The law is conceived in terms of organic models, and the elaboration of norms concerning statecraft, such as the norms of war, proceeds from a collective point of view. The nation is a collective entity with rights and duties and not merely a bundle of individuals bound by individual halakhic obligations. Halakha, in this vision, is decidedly a politics—a means to achieve the spiritual and political perfection of the nation. Thus, the school harks back to Maimonides’s conception of the halakha as a politics aimed at perfection of the body and the intellect.41 The chief jurisprudential division between the nationalists and the transnationalists, as Shlomo Fischer has astutely observed, is the question whether the law recognizes only the rights and duties of individuals or also recognizes the Jewish state as a separate corporate embodiment of the nation, with collective rights. The latter entails a marked shift away from the individualist orientation of the talmudic revolution. Nowhere is this shift more evident than as applied to the issue of war, which exposes acutely the tension between a collectivist versus an individualist framework. For example, as Arye Edrei has analyzed at length, one of the key representatives of the nationalist school, Rabbi Goren, argued that there are “two planes to Jewish law: that of individual conduct, which is governed by classic halakhic norms such as saving lives wherever possible unless the right of self-defense is immediately activated, and that of national existence and institutions, bound by national-collective obligations as well as rights, including the right to conduct war and peace in the national interest without regard to the lives of its individual citizens.”42 It is this construction, at the normative level, of a national-collective plane in which different halakhic rules apply that the more traditional adherents of the transnationalist school of thought is at pains to deny. Instead, they are intent on preserving the traditional construction of halakha as a set of obligations addressing only individuals, whose adherence to these norms is the exclusive legitimate national expression. What both schools of thought have in common, however, is a commitment to a total halakhic society and to preserving a transcendent element in the law in both the domestic and international arena. Traditionalists have often asserted that halakha is seamless and has no gaps; there is a halakhic answer to every question. And, for the traditionalists, halakha is comprehensive, addressing every facet of life and human experience from the private to the public to the economic. A supposed gap in the law—such as rules of war—is merely apparent,

Law without Nation?

113

not real. The gap either signals that the conduct is forbidden to the individual or the rule must be extrapolated by analogy from other, developed areas of Jewish law, such as the criminal law. It is precisely by reasoning through the spiral of precedent that the transcendent dimension of halakha, embedded in the tradition, is retained.43 A commitment to halakha as total way of life is the position of the collectivist school, as well. Rabbi Goren, for example, rejected the idea of halakhic indifference to any area of life; rather, as a normative system, halakha is able and required to relate to all areas of life including areas such as war, which it had no experience of for two thousand years. Indeed, as Edrei explains, he claimed this was merely the logical extension of the traditional idea that Jewish nationalism is defined by its law rather than by territory or other sociological categories. He fashioned a separate normative system for war from biblical sources and even non-canonical ones, rather than rely on the developed criminal law precedents, because he was himself a military man who viewed the criminal law as an inadequate analogy for war. He hoped to retain a transcendent dimension to the newly fashioned rules by joining law with ethics and a sensitivity to a uniquely “Jewish worldview.”44 It is precisely this idea that the halakha is all-encompassing, covering every aspect of human life under a single, unified sacred framework and forming a total society governed by Torah law, that is ultimately disputed by the cosmopolitan school, which is the primary subject of this essay. I will address two distinct versions of what I have termed the “cosmopolitan model.” Indeed, they differ radically in motivation, content, and goal. They share, however, a jurisprudential picture of halakha with deep roots in the tradition, which until now has been largely overlooked and deserves genealogical attention. In the first school of thought, the nation-state is seen as essentially profane, either because nationalism demands that religious conceptions of holiness be extended to mundane—or even evil—acts of statecraft, such as war and international confrontation, or because nationalism fails to give precedence to the individual as an autonomous human being, subordinating the human being to society. The immediate impetus for this school of thought was the excesses of modern nationalism, including those of the Israeli state, and the cult of statism that surrounded it. At the same time, this school of thought is an intensification of the individualist orientation of the transnational halakha as a collective of individuals with society as secondary. In this view, the halakha is first and

114

suzanne last stone

foremost a sacred religion, defining the essence of divine worship, or an ethics guarding the status of the individual as against society, the state, or other collective ideologies. The mundane aspects of statehood, and nationalist law occasionally and obliquely addressed by the halakha, are not particular to halakha nor its essence; they reflect its universal, conventional, and therefore peripheral and profane aspect. Perhaps the best known proponent of this view was the late Yeshayahu Leibowitz, who initially thought the revival of the halakha in areas of public, national life was of deep religious significance and then changed his mind and became the foremost proponent for the radical separation of halakha from the state.45 In short, the role of halakha vis-à-vis the modern nation-state is ethical critique. The second version also attempts to overcome the modern nation-state formation by identifying the Jewish nation as such as merely one member of the global community of nations. In this view, all questions of national existence and statecraft involving the obligations of Jews vis-à-vis the international community, in contradistinction to domestic matters between Jews inter se, should be resolved by resorting to international law or a common law of nations. This position is most clearly articulated by Shaul Yisraeli in the context of discussing the laws of war.46 The actual impetus for this viewpoint is precisely the opposite of the one described above. In his analysis, Yisraeli makes clear that halakhic norms per se could not countenance the manner of conducting warfare acceptable within the international community. But rather than view halakha as a ground for ethical critique, Yisraeli sees halakha as allowing the incorporation of looser standards of behavior when the nation acts beyond its border.47 Both versions of the cosmopolitan school are dependent on essentially emptying the nation-state of concrete and particular halakhic rules. Instead, matters of statecraft and public order are viewed either as a realm of discretion—a halakhic gap where legal rules have run out—or as a sphere conceptually subject to a different set of legal rules from halakha proper. The most critical issue separating the two versions of cosmopolitans, then, is the role of the halakha as an ethics embedded in civil society that can serve as a counter to the law of the state.

Law without Nation?

115

The Cosmopolitan Halakha48 I want to draw on my earlier work on Jewish law and legal pluralism,49 as well as on Jewish law and the conceptual distinction between state and religion,50 to show how the cosmopolitan school, along with its distinctive jurisprudential picture of halakha, emerges from earlier traditions within Jewish legal culture about the legitimacy of political structures. The contemporary critique of nationalism as subordinating the individual to society can be conceptually traced to ancient discussions about the role of the Jewish king, while the contemporary attempt to link halakha with a global community advancing common law for humanity can be conceptually traced to ancient discussions about the nonJewish kingdom. Both of these ancient discourses, the one around the image of the Jewish king and the second around the image of the non-Jewish kingdom, are fascinating, as I have explored at greater length elsewhere, precisely because they change the paradigmatic picture of the halakha from one that is comprehensive and unified to one that is interstitial, pluralist, and composed of different jurisdictions generating law in accordance with fundamentally different principles.51 Each radically limits the ambit of the halakha: the first because it views political structures enforcing law for the sake of society as necessary but ultimately profane; the second because it views them as necessary and commanded and, as such, ultimately sanctified. The first identifies the essence of halakha with sacred ritual and the rights of the individual, and the second views large parts of halakha as replaceable by the law of other societies. Both of these approaches ultimately can be traced back to the tense coexistence within Judaism of the universal and the particular—of two normative systems, the one consisting of universal obligations binding all humanity and the other of commandments particular to Jews. The Bible first launched this complex internal structure by describing the pre-Sinai world as one filled with law given to humanity, including Israel’s forefathers. This account is transformed in the Talmud into a full-fledged description of two normative orders. The Talmud focused on the universal law primarily as an explanatory model for the law that existed before “the law”—the law given at Sinai—and used the model as a contrasting image of a conventional society, unlike the covenantal one forged at Sinai, in order to explore the differences between the two and construct identity.52 Although it left open the relationship between the two legal orders, it largely presented that relationship as

116

suzanne last stone

a historic progression, with the universal law superseded for Jews by the particular obligations revealed at Sinai. It was left to the medieval period to construct a far more complex relationship between the two, with the universal law serving in the eyes of some jurists, as I have claimed,53 essentially as an alternative source of norms even in a national Jewish context. This is a fascinating case illustration of the universal or common law existing, or even generated, outside of the particular legal system but available to it even in an internal context. A. The Jewish King in the Halakhic Imagination Deuteronomy : through : lists the officials of the polity—judge, king, priest, prophet—and assigns each a role, although there is considerable overlap of functions. In Deuteronomy , the king has only one positive duty: to write out a scroll of the law, read it every day of his life, and obey its commands. At the same time, the king is described as a monarch “like all the other nations.”54 The text thus immediately sets up a tension between a model of kingship that is culturally specific and one that is universal. Moreover, elsewhere in the Hebrew Bible, kings are portrayed as unfettered by the law or, at least, exercising a variety of powers, especially that of dispensing royal justice—and royal adjudication, even by good kings, is unhedged by the due process requirement, in Deuteronomy , that no defendant may be convicted except on the testimony of two conforming witnesses.55 Juristic reconciliation could take a variety of forms: that lawless kings reigned in Israel for much of the monarchy but that this did not sever the relationship of ruler to subjects or give rise to a right of resistance; that kings held legally defined emergency powers to administer royal courts or that they had political discretion to depart from Torah law in times of need, to name a few solutions that later emerged. A far more radical reading views the textual phrase “like all the nations” as a warrant for interpreting the powers of the Jewish king in light of a universal and not a particular concept of kingship. Maimonides seems to pursue this more radical reading, even though he couched his approach in the language of emergency powers. According to Maimonides, the Torah in its entirety is a divine political structure because all its laws have a purpose: the perfection of the body or the soul. The Torah’s commandments addressed to governmental structures are part of the perfection of the body because they aim at securing social order, which is a necessary condition for achieving perfection of the soul.56 Although, from a technical perspective, Maimonides gives the king (and

Law without Nation?

117

the court) emergency powers to depart from Torah law,57 these emergency powers are only theoretically temporary. They include power to punish free of the biblical procedural restrictions of two witnesses and forewarning.58 Maimonides seems to be the first among rabbinic jurists to view the biblically ordained two-witness rule as essentially formal and, thus, an obstacle to pursuing a rational system of procedure designed to ensure social order.59 On closer inspection, however, as Gerald Blidstein points out, Maimonides’s king, unlike the jurist-sage, has very little discretion. This is not a realm of politics or wisdom but of law. As Blidstein shows, Maimonides has transferred over to the Jewish king a separate body of talmudic law about the universal “Noahide” laws that bind non-Jewish societies.60 In addition to six substantive commands, Noahide law includes a command of justice, dinin,61 which Maimonides codifies as a duty to preserve social order by establishing a judiciary that will enforce the other substantive commands. The Talmud had already noted that “Noahides” punish in accordance with the testimony of one witness and without forewarning.62 In Maimonides’ Code, the Jewish king, like non-Jewish government, is authorized to punish on the basis of the testimony of one witness and no forewarning. “Maimonides’ entire edifice of monarchic powers identified Jewish and gentile governance as a single structure possessing similar goals and utilizing similar instruments.”63 The biblical language to appoint a king “like all the other nations” now becomes a warrant for resorting to universal norms of governance to define the powers of the Jewish king. Of course, these “non-Jewish” norms of governance are themselves off-shoots of talmudic jurisprudence.64 Nevertheless, they are universal and not particular norms (from the Jewish point of view). They operate, however, as a kind of indigenously “Jewish” universalist fall-back or residual law, which can be drawn on when the particular law requires supplementation or adjustment. While Maimonides paved the way for equating the Jewish king with a universal conception of kingship, he nonetheless stitched the Jewish king into the religious fabric and integrated political structures with particular religious norms, thereby creating a cohesive whole. Other medieval thinkers, however, more decisively split the two domains—universal Noahide law and particularist halakhic obligations—exposing a deep and creative tension between the two. Attention was turned not only outward but also inward. If the universal Noahide law is God-sanctioned, a reflection of the divine plan for moral political societies—and, indeed, a part of the halakha itself—what is the purpose

118

suzanne last stone

of the particular obligations given to Jews at Sinai, especially those that seem, at first blush, to address political and social order? Already in the Talmud and midrash, rabbinic discussion of Noahide law evidences a tacit theory about the distinction between aspirational and conventional societies and concomitantly the different duties members of covenantal as opposed to merely political societies bear. Indeed, the two-witness rule itself was thought to symbolize the covenantal community.65 This line of thought intersected with another longstanding debate about the “metaphysics of judging” in accordance with halakhic norms. As Haim Shapiro has shown, judging in the Talmud is deeply connected with the theme of God’s presence. Nevertheless, in the talmudic period, neither the notion of God’s presence in judgment nor the religious weight of God’s law seems to be an obstacle to the actual administration of justice. By the medieval period, however, adjudication in accordance with Torah law came to be seen by many thinkers as too fraught with holiness for this worldly enforcement.66 These two themes come together in the fascinating sermon of Rabbi Nissim Gerondi, a renowned talmudic commentator and physician in the royal court of Spain in the fourteenth century. This sermon, which over time became transmuted into a legal source, has become increasingly influential in halakhic circles in Israel, serving as a precedent for separating religious halakha from conventional state functions. In so doing, a structure has been created for the religious halakha to serve as a site of protest within civil society against the nation-state. Whether Gerondi’s sermon was motivated by practical concerns—“to provide a defense for allowing deviations from biblical-talmudic law in the workings of the contemporary Jewish polity”67—or theoretical ones—to offer a new conception of halakha—is open to debate. As I note elsewhere in more detail, Gerondi points to a central gap in the halakha. Torah law, with its requirements of judging in accordance with the testimony of two witnesses and forewarning, cannot enforce social order. Thus, it is deficient in comparison to conventional political systems. According to Gerondi, the Torah itself provides the means for correcting this deficiency. The king, who is concerned only with guilt or innocence, may punish without resort to the Torah method’s of criminal adjudication. Like Maimonides, Gerondi links the king’s authority to a general religious command to preserve social order: tikkun olam. This term cannot be found in the Pentateuch and is cited by the early rabbis, not as a rule but as an explanation for enacting a variety of social legislation. But both Maimonides and Gerondi are using the talmudic term as a generative

Law without Nation?

119

legal “principle.” Gerondi, at least, takes the Bible’s instruction about kingship as the source of this command. Gerondi’s discourse on kingship occupies a central place in contemporary conceptions of halakha in Israel because, for him, kingship is not an institution but, rather, a power that must always be embedded somewhere in the Jewish polity.68 The monarch is merely the site of social order historically chosen by the people, who may consent to another institutional form if they so desire, such as the Israeli Parliament. Second, the language about the need for public order and social welfare is so broad that it is virtually impossible to confine the “power” Gerondi is describing to punishment.69 Third, Gerondi does not place the king’s powers within the more conventional emergency jurisdiction model, although he cites the phrase once or twice. Moreover, the political domain is stripped of any aura of the sacred. Although there is a vague bow to the Jewish king upholding the religion, there is no attempt to integrate the king within the rest of the system, as Maimonides labored to do, nor is there any attempt to coordinate state power with religious law and institutions. This is a separate and theoretically permanent jurisdiction legitimately operating under its own rules. At first blush, one might interpret Gerondi as merely extending the Maimonidean thrust in new directions shaped by his halakhic predecessors living in Christian Spain and by the surrounding culture. His emphasis on monarchy as the product of the people’s consent and the opening he provides for legislative powers are all tied to the new theory of the self-governing Jewish community, the kahal, as a corporate form endowed with legislative, judicial, and administrative powers, forged by Nachmanides and Adret a century before.70 Medieval developments in canon law—the emergence of criminal law as public law, arguments about social deterrence, and relaxation in standards of proof—also date from this period. Where formerly, criminal conviction could be secured solely on the basis of two conforming eyewitnesses (or else by torture), there slowly developed in the twelfth and thirteenth centuries a sense of the need to convict on the basis of circumstantial evidence.71 Thus, across traditions, a new perception of a “public sphere,” having both powers and need for new forms of social regulation, came into being. Yet, in the course of elaborating the purpose of the king’s law, Gerondi reconceives the very purpose of the halakha altogether and decisively parts company with Maimonides. In contrast to Maimonides’s naturalist, rationalist defense of the Torah, Gerondi saw the divine law as a means to “transcend the natural” by de-

120

suzanne last stone

livering the community from the rule of nature.72 He did not share Maimonides’s basic framework, which assigns a rational and comprehensible purpose to each commandment. Instead, the sphere of Sinai law is the sacred and the numinous. Judging in accordance with biblical law was never intended as a practical means to govern society, he writes. Rather, its purpose is to bring on the divine effluence. Here, Gerondi can be interpreted in two ways, but these two readings are deeply interconnected in terms of their contemporary political implications. According to the less radical reading, judging in accordance with biblical procedural and substantive law is true justice because the law is exceedingly sensitive to the rights of the individual accused. True justice cannot take into account the needs of society and remain faithful to the rights of the individual. The Sanhedrin judged the people “according to that which is truly just in itself . . . according to the laws of the Torah alone, which are just in themselves.”73 Thus, Gerondi rejects out of hand Maimonides’ entire project of embedding divine law in society and integrating the two. According to the more radical reading, religious law, or, more precisely that part of the halakha that is particular, is a mysterious ritual. Thus, he writes, even the mishpatim (the social laws of the Torah whose purpose is evident), including evidentiary and procedural rules, are designed primarily to bring down the divine effluence. Indeed, Gerondi suggests, perhaps some of the social laws are, in reality, hukim (ritual laws whose purpose is not immediately evident to reason and may or may not be discoverable), and he goes on to include in this category the entire system of biblical procedure. Perhaps Gerondi intended to limit this notion to biblical penal law, but the logic of his argument and its intellectual roots is not confined to this subject. If we speak of Christian influences, by far the most important here is the Gelasian doctrine of two powers—pope and king. Yet Gerondi is certainly working off earlier rabbinic sources as well as extending the doctrine of Noahide law to one logical conclusion. He is following, as Gerald Blidstein pointed out, Yehuda HaLevi, who wrote about “the social—ethical law given to humanity (Noahide law) to which the spiritual-ceremonial law is added at Sinai,” and decisively splitting the two into the realm of the sacred and particular, where true justice is possible, as opposed to the realm of the profane and universal, where the needs of society are irreconcilable with the rights of individuals.74 The intellectual line I want to draw, however, extends back to a certain conception of priestly religion, and of criminal adjudication as a ritual service, and then

Law without Nation?

121

forward again to the twentieth-century criticism of excessive nationalism by Yeshayahu Leibowitz and others. According to one biblical conception of priesthood, their ritualized worship of God has no practical, this-worldly, political, or social function. Instead, “[T]he focus is solely on the encounter between a numinous God and a serving priest,”75 who is confined to the sacral realm—the Temple—and isolated from the social and political order. The reason to mark off the sacred from all other realms is connected to the idea of a wholly other God who transcends morality and politics and is uninvolved in human affairs. “Uncovering the hidden dimensions of divinity, bringing on the divine effluence, requires a set of rituals unrelated to human concerns.”76 Temple service in this view is divine worship “out of love” and not for instrumental purposes. Thus, secular space may emerge out of a certain conception of the deity rather than from external critique and opposition to religion.77 Gerondi’s picture of halakha as mysterious ritual and of criminal adjudication in accordance with divine laws that have no social purpose except to bring on the divine effluence reflects this conception. It is ritual observance, which must, of necessity, be divorced from social or political concerns in order to reveal the divine. Gerondi extends the priestly role to the judiciary, especially to the High Court, which was located in the Temple, and he writes elsewhere that its judges ideally should be priests.78 But, in retrospect, we can see how the judiciary and this priestly role were collapsed already in the Mishna, the formative text of Jewish law, which describes the polity as ruled by two agencies: judge and king.79 One may speculate whether the two are separated not only to secure the court’s independence but also in order to relocate in the judiciary and their rabbinic successors the sacral power formerly found in the Temple.80 Already in this early layer, judging is depicted as a sacral site, a site of the divine overflow,81 and judicial execution which is also depicted as a form of atoning sacrifice or ritual killing possible only while the court sat in the Temple.82 These theological conceptions have profound contemporary political implications. Gerondi’s intellectual successor is precisely that segment of the cosmopolitan school which perceives certain totalizing characteristics of political nationalism as idolatry.83 The nation-state is essentially seen as idolatrous, either because nationalism demands that religious conceptions of holiness be extended to mundane—or even evil—acts of statecraft, such as war and international confrontation, or because nationalism fails to give precedence to the

122

suzanne last stone

individual as an autonomous human being, subordinating the human being to society. The immediate impetus for this school of thought was the excesses of modern nationalism, including that of the Israeli state, and the cult of statism that surrounded it. At the same time, this school of thought is merely an intensification of the individualist orientation of the transnational halakha as a collective of individuals with society as secondary. Thus, as in Gerondi, the halakha is first and foremost a sacred religion, defining the essence of divine worship, or an ethics guarding the status of the individual as against society, state, or other collective ideologies. The mundane aspects of statehood, and nationalist law occasionally and obliquely addressed by the halakha, such as war, are not particular to halakha nor its essence; they reflect its universal, conventional, and therefore peripheral and profane aspect. Perhaps the best known proponent of this view was the late Yeshayahu Leibowitz, who initially thought the revival of the halakha in areas of public, national life was of deep religious significance and then changed his mind and became the foremost proponent for the radical separation of halakha from state.84 For Liebowitz too, Jewish religion is worship of God through observance of commandments that are divorced from human concerns and thus transcend the social and political. This is the realm of the sacred, and to preserve it, the state must be desacralized and stripped of any religious component, because vesting sanctity outside its proper place is idolatry. At the same time, however, the state is necessary from the perspective of the political and social, as Gerondi held. Hence, the role of halakha vis-à-vis the state in Liebowitz’s system is critique. Halakha becomes a source of criticism of nationalist-political ideology when the latter becomes total and radical, and tramples the status of the individual. Thus, this position is sharply distinguishable from that of the collectivists who seek precisely to re-sacralize the body politic and for whom the concept of Jewish kingship should be culturally specific, not universal. B. The Global Community in the Halakhic Imagination The halakha has long recognized the legitimacy of the non-Jewish state over certain domains. The principle dina de-malkhuta dina (“the law of the land is the [legitimate] law,” henceforward DDM), as noted, played a seminal role in the adjustment of Jewish law to the then new formation of the nation-state. Now it is playing a central role in adjusting Jewish law to the reality of a new globalized community.

Law without Nation?

123

On the face of it, no principle would seem to symbolize more visibly the loss of Jewish sovereignty than this one, which appears four times in the Babylonian Talmud. Several scholars have already noted how far this appearance is from reality,85 once one focuses closely on how the principle is actually deployed in the talmudic discussion. In none of these cases is it operating as a concession to foreign rule or an expression of powerlessness. On the contrary, in its original uses the principle serves to make the halakha fully functional in exile. Yet the internal logic of doctrinal progression has led to precisely the opposite result. The principle “the law of the kingdom is the law” is first articulated because it is necessary to enable Jews to fully comply with their halakhic obligations in exile. This postulate took on a life of its own as the jurists began to theorize in the Middle Ages about the conceptual basis for the principle. And, in a chain of logical progression, these conceptual bases begin to undermine the conception of halakha as an all-encompassing system. Instead, the sphere of halakha became more and more contracted. The locus classicus is a talmudic text86 that poses the question whether the kingdom is robbing Jews or Jews are robbing the kingdom. The legal question is whether Jews may utter a false vow in order to evade the king’s taxes. Samuel’s maxim is not questioned; rather, it is raised as an objection: if the king’s laws are valid, then evading the kings’ collectors through the artifice of uttering a false vow is robbery under Jewish law.87 The second example poses the legal question more starkly: Jews cross bridges built from palm trees expropriated from their Jewish owner by the king. The king’s act must be classified as legal or illegal in order to serve as a premise for further halakhic reasoning about the duties owed between Jew and Jew. If the king’s act is illegal, the property expropriated cannot be classified as abandoned. In such cases, Jews will be evading their own religiolegal obligations vis-à-vis the Jewish tree owners, who should be compensated for use of their property each time a Jew crosses the bridge. The Talmud does not define the prerogatives of kingship, other than citing examples of taxation and expropriation, but it does define what monarchical actions are “law” as opposed to tyranny. Taxes that have no limit and the unequal imposition of obligations—for example, precluding the tree owners from arranging equal distribution of their obligations—are robbery and not law of the kingdom. These two limits—lack of arbitrariness and equality in framing the law—are definitional of the word “law,” whether Jewish or non-Jewish, and function as internal conditions of legality.88

124

suzanne last stone

In the medieval period, as Shmuel Shiloh elucidates in his magisterial study, further rationales for this principle were explored. The Talmud already hints at a close association between the principle and the custom of the people,89 and many of the medieval theories revolve around one or another form of popular consent or social contract theory. As Shiloh notes, the theories also attest to the rich interpenetration of the medieval discussions of the rights of kings taking place in the European Middle Ages.90 Unlike in the case of Gerondi, the very definition of halakha does not change, but portions of halakha become theoretically optional and not mandatory as the principle is extended through a series of logical progressions and in tandem with the extension of the rights of kings in Europe far beyond the concrete context from which it sprang—taxes and land—and far beyond what is necessary to resolve actual, rather than theoretical, cases. The twelfth-century talmudic commentator Rashi potentially shifts the paradigm, however, by building a bridge between the principle and the by now familiar idea of a universal divinely ordained law, which played so critical a role in the discussion of the Jewish monarchy in the preceding section. Rashi focuses on the one instance in the Babylonian Talmud where DDM functions not as a duty-imposing rule but as a power-conferring rule to Jewish litigants in an intra-Jewish dispute to take advantage of non-Jewish validation of deeds even though the signatories are non-Jews and the method contrary to Jewish law.91 Here, DDM is allowing non-Jewish law to penetrate into Jewish law as an alternative norm.92 Rashi draws on the familiar Jewish legal principle that only one who is himself under a divine obligation to perform an action can be an effective legal agent for others. He explains the talmudic permission as resting on the notion that non-Jews are commanded to “institute justice”—citing the Noahide norm of dinin. Accordingly, they can be effective agents for all matters subsumed under that command. Recall that, from the internal perspective of rabbinic Judaism, this command obligates humanity to preserve social order by enacting systems of law.93 The kingdom’s law is rooted ultimately in divine command and therefore has legal and moral legitimacy equal to that of Jewish law. As the product of divine command, it is, in a sense, sanctified. Accordingly, non-Jewish legal activity can serve here as an alternative norm even for Jews and even when it is at variance with Jewish law. Conversely, with respect to matters not subsumed under the command of dinim—Jewish marriage and divorce bills—DDM cannot be

Law without Nation?

125

invoked as a power-conferring rule to utilize alternative norms. The implication of Rashi’s rationale is that large portions of the halakha are in fact replaceable by the law of other civilizations, thus shrinking the scope of halakha to matters of ritual and religious prohibition.94 I want to pause for a moment on the picture of halakha that can be extrapolated from Rashi’s comment here and in several other places. In my view, Rashi consistently understands halakha as composed of overlapping jurisdictions that legitimately generate law pursuant to divine command. Rashi’s position on Jewish lay legislation is consistent. He equates lay legislation with Torah law and the transgression of lay legislation as the abrogation of a commandment.95 The lay communal body has direct legal agency to bind others. This is a pluralistic, bottom-up picture of law, in which law emanates from a variety of potentially authoritative jurisdictions. Non-Jewish legal orders are one jurisdiction, comparable to law-generating institutions such as that of the Jewish king, the lay communal bodies, and the rabbinic courts. Discretion can exist only so long as law doesn’t exist to fill the space. And pursuant to Rashi’s interactive model, gaps in halakha disappear once law appears, whether the law is generated by the nonJewish state, the Jewish state, or even the international community.96 According to the pluralist conception, the function of DDM is to arbitrate which norms generated by diffuse jurisdictions are relevant in different circumstances. In this light, Rabbi Yisraeli ruled that the Jewish state was obligated by, and only by, international standards of war.97 From a technical perspective he relies on the talmudic dictum “the law of the kingdom is the law,” but he gives it an innovative meaning. Where formerly the dictum governed the obligations and privileges of individual Jews to their host-states, it now, in the elaboration by Rabbi Yisraeli, governs the obligations and privileges of the Jewish nation acting in the international context. And where formerly, the dictum extended only to the laws of a sovereign ruler, such as king or state, it now, in the elaboration of Rabbi Yisraeli, extends to international law on the theory that the non-Jewish kingdom could be defined in global terms, so long as the collective will of the world’s citizens ratified the global kingdom’s law. Rabbi Yisraeli’s opinion, moreover, seems to blend the underlying rationales of the DDM consent school and of Rashi’s turn to Noahide law. Jews can consent to be governed by international norms, just as they can consent to be governed by the civil laws of hoststates. Consent to laws pertaining to war is legitimate even though war is a far

126

suzanne last stone

cry from monetary matters. War, however, is a chosen means to settle disputes in contemporary life and, as such, fulfills the goal of civilizing the world and securing social order—even if such wars are not undertaken solely for the sake of enforcing Noahide norms.98 The upshot of this innovative use of DDM is the treatment of the modern Jewish state as merely one member of the global community of nations. International codes of war, treaties, and so forth govern the State of Israel—from the halakhic perspective—and not indigenous, national-collective norms, nor particular, aspirational norms developed to govern relations of members within a covenantal community. In his analysis, Rabbi Yisraeli makes clear that halakhic norms pertaining to use of force developed within the context of individual selfdefense could not countenance the manner of conducting warfare acceptable within the international community. But rather than view halakha as a ground for ethical critique, Yisraeli sees halakha as allowing the incorporation of looser standards of behavior when the nation acts beyond its border.99 Should international society adopt more stringent norms than halakha, these too would be binding on the nation acting in the international arena. The Jewish nation-state is no longer modeled on a concept of exceptionalism. Instead, it is merely a member of international society whose norms should therefore converge.

IV.  Transnational versus Cosmopolitan Law As should be clear by now, there is an interesting parallel between the new transnational law and the relationship between universal and particular law within halakha that I have sought to describe. In both cases, universal, international, or global norms developed from outside are deemed capable of importation into national, particularistic, internal contexts. This is hardly surprising, as legal historians have been quick to point out that transnational law rests on a picture of law with a long pedigree stretching back not only to the eighteenth century but also to the medieval period and even before. It is a picture of law based on a conception of a universal or common law that is in constant relation to a particular law—a picture of law obscured by the nineteenth-century rise of exclusive nationalism and, with it, analytic positivism and the historical school. The debate this transition to transnationalism has engendered in U.S. constitutional circles parallels the Jewish discussion. Vicki Jackson recently proposed

Law without Nation?

127

that the debate over constitutional transnationalism could be charted across three models: resistance (by national constitutions to outside influence or foreign practice); convergence (national constitutions as sites for implementation of international or transnational law so the two converge); or engagement (universal and particular, national law as relational with each the interlocutor of the other).100 The long halakhic discussion over the relationship of the universal law to the particular law also divides over models of resistance, convergence, and engagement. Resistance is the familiar problem of the loss of national distinctiveness, which many medieval jurists raised as an objection to expanding the range of DDM.101 Yet, other rabbinic authorities, especially in the modern age, saw application of non-Jewish law within an internal halakhic context, through the mediating principle of DDM or Noahide law, not as a threat to Jewish distinctiveness and particularity but, rather, as a method of correcting the halakha. The assumption that drives this approach, already found in the Talmud, is that one of the purposes of the universal law preceding Sinai must be to set a floor on ethical obligations, and this notion, as Shiloh put it, “became incorporated into the discussion of DDM.”102 If Jewish law allows ethically inferior conduct that other legal systems forbid, the ethically superior norm should displace Jewish law so that the two converge. Thus, as Shiloh points out, the progress forward in the self-correction of the halakha in light of the laws of other civilizations was made in the modern era with exposure of halakha to democratic systems.103 However the idea of convergence is a two-edged sword. As we saw, Rabbi Yisraeli takes it as permission to turn to international law—to have the halakha converge with international standards when operating in an international context—even if the particularist norms of halakha embody an ethically stricter standard of behavior. This view leaves no room for halakha to function as an aspirational set of norms—as a ground for protest from within civil society. This is precisely the issue separating the two versions of cosmopolitanism. The first school insists that the relationship between the universal or common norm outside and the particular, now needs to be reversed with the particularist halakha serving as a resource for ethical critique of nationalist, state law. While some argue that the State of Israel should view the halakha as setting a floor on acceptable conduct in all domains of public life, others insist that they do not aim to genuinely bind the state. Rather, they aim to engage the state.104

128

suzanne last stone

Conclusion As I write, the predicted demise of nation-states as privileged units of analysis in law is in increasing question. National sovereignty and regulation on a national scale has gained power in order to meet economic turmoil on the global front. Law without nation is still unthinkable. What is finally thinkable, however, is the complex interaction among the national state and its law, global law, and local laws. “Our legal life,” Santos writes, “is constituted by an intersection of different legal orders, that is by interlegality.”105 The contemporary Jewish discussion about the role of halakha in the nation-state of Israel within the context of an increasingly globalized world offers a window onto how these complex interactions are conceptualized from the perspective of one local law—the halakha—as the interaction of multiple legal orders that are both outside of and a part of itself.

Notes . Harold Berman, Law and Revolution (Cambridge, MA: Harvard University Press, ), vi. . Ibid. . Ibid. . See, generally, H. Patrick Glenn, “Transnational Common Laws,” Fordham International l Law Journal  ( ): . . These religious movements often depict themselves as anti-modern, of course. Indeed, they portray themselves as attempts to recover the lost, original ideal of a unified religious polity. But this is not traditionalism; it is a modern reaction to modern themes. If one problem of modernity is fragmentation and the splintering of social life into multiple and separate domains, unity is the way to overcome it, which is often depicted as a return to origins. As we know, the reconstruction of a tradition far more traditional than the original one ever was is one of the defining characteristics of modernity. See Haym Soloveitchik, “Rupture and Reconstruction: The Transformation of Contemporary Orthodoxy,” Tradition  (): ; Eric Hobsbawm, “Introduction: Inventing Tradition,” in The Invention of Tradition, ed. Eric Hobsbawm and Terence Ranger (Cambridge: Cambridge University Press, ), . . José Casanova, “Public Religions Revisited,” in Religion: Beyond a Concept, ed. Hent De Vries (New York: Fordham University Press, ), .

Law without Nation?

129

. Scott Veitch, Emilios A. Christodoulidis, and Lindsay Farmer, Jurisprudence: Themes and Concepts (London: Routledge-Cavendish, ), . . See William Twining, Globalization and Legal Theory (New York: Cambridge University Press, ), –. . B. de Sousa Santos, “Law: A Map of Misreading. Toward a Postmodern Conception of Law,” Journal of Law and Society  (): , . . Gunther Teubner, “Legal Pluralism in World Society,” in Global Law without a State, ed. Gunther Teubner (Aldershot: Dartmouth, ). . Brian Z. Tamanaha, “A Non-Essentialist Version of Legal Pluralism,” Journal of Law and Society , no.  (June ): , . . Ibid., . . H. Patrick Glenn, On Common Laws (New York: Oxford University Press, ), vii. . Santos, “Law: A Map of Misreading,” . . Ibid., . . Eliezer Schweid, “The Attitude toward the State in Modern Jewish Thought before Zionism,” in Kinship and Consent: The Jewish Political Tradition and Its Contemporary Uses, ed. Daniel J. Elazar. (Washington, DC: University Press of America, ), . . For this classic description of Jewish law, see Menahem Elon, Jewish Law: History, Sources, Principles = Ha-Mishpat Ha-Ivri (Philadelphia: Jewish Publication Society, ): –. See also Gidon Sapir, “Can an Orthodox Jew Participate in the Public Life of the State of Israel?,” Shofar  (): . . For a more detailed piece, see Suzanne Last Stone, “Religion and State: Models of Separation from within Jewish Law,” International Journal of Constitutional Law  (): . . The nationalist idea is ordinarily dated to the eighteenth century; yet the biblical commonwealth has been cited as a singular exception. See, generally, Anthony D. Smith, Theories of Nationalism (New York: Harper and Row, ). . Schweid, “The Attitude toward the State,” . . See Moshe Halbertal, People of the Book: Canon, Meaning and Authority (Cambridge: Harvard University Press, ). . See Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, ). . Schweid, “The Attitude Toward the State,” .

130

suzanne last stone

. Babylonian Talmud, Tractate Sabbath a. . Shlomo Fischer, “Excursus: Concerning the Rulings of R. Ovadiah Yosef Pertaining to the Thanksgiving Prayer, the Settlement of the Land of Israel, and Middle East Peace,” Cardozo Law Review  (): , . . Fischer, “Excursus: Concerning the Rulings,” . . Bernard Susser and Eliezer Don Yihyeh, “Prolegomena to Jewish Political Theory,” in Kinship and Consent, ed. Daniel J. Elazar (Washington, DC: University Press of America, ), . . Jacob Katz, Exclusiveness and Tolerance: Studies in Jewish-Gentile Relations in Medieval and Modern Times (New York: Behrman House, ), . . “The Jew should be denied everything as a nation, but granted everything as individuals . . .”; and “[It] should not be tolerated that the Jews become a separate political formation or class in the country.” . Katz, “Exclusiveness and Tolerance,” . . Schweid, “The Attitude toward the State,” . . Ibid. . Ibid., . . See Leora Batnitzky, “From Politics to Law: Modern Jewish Thought and the Invention of Jewish Law,” Harvard Theological Review , no.  (): . . Schweid, “The Attitude toward the State,” . . Mordechai Kaplan, Judaism as a Civilization (Philadelphia: Jewish Publication Society of America, ), . . Fischer, “Excursus: Concerning the Rulings,” . Fischer identifies their utopian orientation in terms of the wish to recapture the transhistorical, objectively true divine law “as it exists in the mind of God.” For this reason, they base their rulings on the most stringent interpretation, lest actual practice fail to conform to divine halakhic truth. This is a departure from the more modest and skeptical epistemology of the Talmud, which emphasizes procedural validity rather than metaphysical truth. . See, generally, Arye Edrei, “Law, Interpretation, and Ideology: The Renewal of the Jewish Laws of War in the State of Israel,” Cardozo Law Review  (): . . Ibid. . For a theoretical overview of this method, see Suzanne Last Stone, “For-

Law without Nation?

131

mulating Responses to Egalitarianism,” in Halakha in an Egalitarian Age, ed. Marc D. Stern (Lanham, MD: Rowman and Littlefield, ), . . Maimonides, The Guide for the Perplexed, :; —. . Edrei, “Law, Interpretation, and Ideology,” . . Ibid., . . Ibid., –. . See discussion in ibid., . . See discussion in ibid. . Ibid., . . An earlier version of this section appeared in the International Journal of Constitutional Law. See Stone, “Religion and State,” . . See Suzanne Last Stone, “Sinaitic and Noahide Law: Legal Pluralism in Jewish Law,” Cardozo Law Review  (): . . Stone, “Religion and State,” . . Ibid., . . I explore this at length in Stone, “Sinaitic and Noahide Law,” . . See discussion in ibid. See also recent rabbinic opinion by the High Rabbinic Court of Jerusalem (Case No. , November , ) (on file with the author) (Heb.). . Deuteronomy :. . Later jurists imported further requirements, such as forewarning the defendant that he is about to transgress. . Maimonides, The Guide for the Perplexed, :; –. . See Maimonides, Mishneh Torah, Laws of Kings :–; Laws of Killing :. . Maimonides purports to be codifying talmudic law, and there are scattered statements in the Talmud reporting a tradition that the court meted out punishments not according to law “in order to safeguard the law.” Babylonian Talmud, Tractate Sanhedrin a and parallels. The two cases attached to the statement tell of impositions of the death penalty by the court for highly public violations of the law. These cases emerge as rare exercises of judicial discretion to depart from biblical rules, although they do attest to a talmudic distinction between law as an aspect of individual justice, entitling the individual to full due process of the law, and law as an aspect of political or social governance, which may require relaxation of the rigors of the law in times of extreme breakdown of social order. See the discussion in Gerald Blidstein, “‘Ideal’ and ‘Real’ in Clas-

132

suzanne last stone

sical Jewish Political Theory,” Jewish Political Studies Review  (): –. But compare Hanina Ben-Menahem, Judicial Deviation from Talmudic Law: Governed by Men, Not by Rules (New York: Hardwood Academic, ) (arguing that talmudic judges had power to disregard norms and exercised broad judicial discretion). The Talmud also depicts the court as authorized to “correct” the law, by relaxing or tightening it, through rabbinic legislation addressing social needs, applicable to everyone. . A century later, another member of the Spanish royalist school, Ibn Adret, invoked similar ideas to legitimate medieval punishment practice. Thus, Adret in a series of responsa dealing with handing over informers to the Spanish government for capital punishment, draws on a variety of precedents for departing from the criminal law strictures: citing the powers of the community (acting in lieu of king) and of the rabbinic courts exercising emergency jurisdiction. Adret remarks that the Torah’s procedural laws are not aimed at discerning the truth of guilt or innocence, unlike that of the king, which is aimed at discerning the truth and punishing. And “if you issue decisions based exclusively on the law as given in the Torah, why then society would be destroyed.” Cited in Joseph Karo, Commentary to Tur, Hoshen Mishpat, Rules of Judges, Section . . Blidstein, “‘Ideal’ and ‘Real,’” . . Stone, “Sinaitic and Noahide Law,” . . Babylonian Talmud, Tractate Sanhedrin a-b. . Blidstein, “‘Ideal’ and ‘Real,’” . Traditional jurists commenting on Maimonides note this connection. See Meir Simhah Cohen, Ohr Sameah, Laws of Kings :. . Indeed, as a historical matter, their real origin may well lie in talmudic observation of Roman practice just as much as in legal dissection of the Genesis narratives “attesting” to the universal law God commanded. For Maimonides, surely, it didn’t matter. He most likely thought the whole topic of universal Noahide law was based on natural law thinking on the part of the jurists from the beginning. . Stone, “Sinaitic and Noahide Law,” . . See Haim Shapira, “For the Judgment Is God’s”—On the Metaphysics of Judging in Jewish Law,” Bar Ilan Law Review (). . Gerald Blidstein, “On Political Structures—Four Medieval Comments,” Jewish Journal of Sociology  (): . . Blidstein, “On Political Structures,” –.

Law without Nation?

133

. Gerald Blidstein, “On Lay Legislation in Halakha: The King as Instance,” in Rabbinic and Lay Communal Authority, ed. Suzanne Last Stone (New York: Yeshiva University Press, ), . . Blidstein, “On Lay Legislation,” ; Menachem Lorberbaum, Politics and the Limits of Law: Secularizing the Political in Medieval Jewish Thought (Stanford: Stanford University Press, ). . Richard M. Fraher, “Conviction According to Conscience: The Medieval Jurists’ Debate Concerning Judicial Discretion and the Law of Proof,” Law and History Review  (): ; Richard M. Fraher, “‘Ut nullus describatur reus prius quam convincatur’: Presumption of Innocence in Medieval Canon Law?,” in Proceedings of the th International Congress of Medieval Canon Law, ed. S. Kuttner and K. Pennington (): –; Richard M. Fraher, “The Theoretical Justification for the New Criminal Law of the High Middle Ages: Rei Publicae Interest, ne Crimina Remaneant Impunita,” University of Illinois Law Review (): ; Richard M. Fraher, “Preventing Crime in the High Middle Ages: The Medieval Lawyers’ Search for Deterrence,” in Law and the Sacred, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford: Stanford University Press, ); Nomi Stolzenberg, “The Profanity of Law,” in Law and the Sacred, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford: Stanford University Press, ). . On his antirationalism, see Lorberbaum, “Politics and the Limits of Law.” . Rabbi Isaac Herzog, “The Rights of Minorities in Jewish Law,” in Constitution and Law in a Jewish State According to the Halakha, ed. Itamar Warhaftig (Jerusalem: Mossad HaRav Kook, ), reprinted in The Jewish Political Tradition, ed. Michael Walzer et al. (New Haven: Yale University Press ), —. . HaLevi also speculated whether certain social laws were really religious commands with no social function except to bring on the divine overflow. . Yair Lorberbaum, “The Place of the Priest,” in The Jewish Political Tradition, vol. I, ed. Michael Walzer (New Haven: Yale University Press, ): ; see also Israel Knohl, The Sanctuary of Silence: The Priestly Torah and the Holiness School (Minneapolis: Fortress Press, ). . Lorberbaum, “The Place of the Priest,” . . For a fascinating discussion of the link between transcendent concep-

134

suzanne last stone

tions of the divine and the rise of secularism on the world-historical stage, see Maurice Gauchet, The Disenchantment of the World: A Political History of Religion (Princeton: Princeton University Press, ). . Sifre Deut., cited in Hiddushe HaRan on Sanhedrin. The judicial function and priestly role are already coupled in Deuteronomy  and continued in Philo. . See Mishna Sanhedrin; David Flatto, “It’s Good to Be King: The Monarch’s Role in the Mishna’s Political and Legal System,” Hebraic Political Studies  (): ; David Flatto, “The King and I: The Separation of Powers in Early Hebraic Political Theory,” Yale Journal of Law and Humanity  (): . . I pursue this theme in a different context in Suzanne Last Stone, “Rabbinic Legal Magic: A New Look at Honi’s Circle as the Construction of Legal Space,” Yale Journal of Law and the Humanities  (March ): . . See Shapira, “For the Judgment Is God’s.” . Thus the Mishna reports that in order to strip itself of authority to execute, the court relocated itself to the marketplace. Babylonian Talmud, Tractate Avodah Zara b. See also Beth A. Berkowitz, “Execution and Invention: Death Penalty Discourse,” in Early Rabbinic and Christian Cultures (New York: Oxford University Press, ). . See, generally, Ellie Holzer, “Attitudes toward the Use of Military Force in Ideological Currents in Religious Zionism,” in War and Peace in the Jewish Tradition, ed. Lawrence H. Schiffman and Joel B. Wolowelsky (New York: Yeshiva University Press, ), . . Edrei, “Law, Interpretation, and Ideology,” . . See Shmuel Shiloh, Dina De-Malkhuta Dina [The Law of the State Is Law] (Heb.) (Jewish Academic Press, ). . Babylonian Talmud, Tractate Baba Kamma a–b. . Side by side with the ethical impulse, one might also see a self-serving aim here. With respect to vows, passive civil disobedience is being advocated, with the locution of Gentile legitimacy almost a kind of subterfuge. This is hardly surprising, as the social reality is almost certainly confiscatory taxes aimed at Jews—the fiscus Judaicus—which may explain why the Mishna and Talmud begin with a presumption that tax collection is robbery. Later sources tend to mute this presumption, reflecting a different social reality. . This point is driven home by Jacob b. Meir Tam, Responsa of the Tosafists , and Isaac Or Zarua Tractate Bava Kamma . A law may be wrongful

Law without Nation?

135

under Jewish law—cutting down the palm trees that belong to the owner—and still deserve the name law. Such a Gentile law is still perfectly valid law because, unlike the Jewish king, the Gentile king owns the land. . The Talmud notes that Jews are consistently using the bridges without paying the owners. This practice is taken as evidence of a pre-existing halakhic norm known to the populace, later given legal expression by the talmudic jurists as DDM. One of the more radical extensions of this mode of reasoning is in a contemporary responsum on the authority of the State of Israel. It begins with the observation that Jews are granting legitimacy to the legislation of the state and then seeks a rationale for this practice in DDM. Ovadiah Hedaya; compare the contemporary responsum of Rabbi Moses Feinstein on the permissibility of using secular wills. He cites the familiar expression: “If the children of Israel are not prophets, they are the sons of prophets.” The instinct of the people must be given weight, and it is the task of the rabbinic decisor to comb the sources to ascertain the legal basis that underlies Jewish customary practice. See Jeffrey Roth, “Crossing the Bridge: A Reply to Professor Shmuel Shiloh,” Cardozo Law Review  (): . . Thus one sees DDM as a subspecies of personal contract law in that Jews are assumed to have implicitly contracted to obey the kingdom’s customary, established laws and to have waived their rights under Jewish law. From the thirteenth century onward, the distinction between custom and new legislation begins to disappear, probably under the influence of the rise of positive law in Latin Europe. See Amos Funkenstein, Perceptions of Jewish History (Berkeley: University of California Press, ), . The subject is fully explored by Shmuel Shiloh, see “Equity as a Bridge between Jewish State and Secular Law,” Cardozo Law Review  (). . Babylonian Talmud, Tractate Gittin b. . This usage of DDM may reflect the general predisposition of the Babylonian Talmud toward legal pluralism and decentralized law, which Rashi’s localized comments illuminate. See Ben-Menahem, “Judicial Deviation,” . . Exactly what is included in this command—whether to institute criminal enforcement jurisdiction alone or to develop a legal system—is, as one would expect, a subject of juristic debate. See Stone, “Sinaitic and Noahide Law,” . . Jewish law maintains that with respect to financial matters, as opposed to religious matters, it is possible for parties to contract out of the law in any

136

suzanne last stone

event, despite the fact that these norms originate in Divine law. But the rationale that links the validity of Gentile law to the Noahide command of dinim would suggest that it could extend to all laws subsumed under the Noahide command, including criminal law and punishment, traditionally categorized as “religious.” Rashi elsewhere assumes that it is permissible to hand Jews over to the criminal processes of the non-Jewish government, despite bypassing of Jewish evidentiary and penal law. Babylonian Talmud, Tractate Niddah a. Rashi’s theory has very few internal limits, except that subjects unique to Jewish law cannot be displaced. . Rashi, Responsa . . See Stone, “Sinaitic and Noahide Law,” ; and Jeremy Wieder, “International Law and Halakhah,” in War and Peace in the Jewish Tradition, applying this idea to the question whether the halakhic polity is bound by international law. . Rabbi Shaul Yisraeli, “Military Action in Defense of the State,” in Amuda Ha-Yemini, discussed extensively in Edrei, “Law, Interpretation, and Ideology,” . . For additional discussion of the halakhic issues surrounding the incorporation of international laws of war, see Weider, “International Law and Halakhah.” . Edrei, “Law, Interpretation, and Ideology,” . . Vicki C. Jackson, “The Supreme Court,  Term: Comment: Constitutional Comparisons: Convergence, Resistance, Engagement,” Harvard Law Review  (): . . The thirteenth-century Provencal jurist Menahem Ha-Meiri placed the issue squarely on the table. Meiri held that non-Jewish society was an enlightened civilization and, singularly among rabbinic thinkers, argued that they were brothers within the meaning of scripture to whom full legal and juridical equality under Jewish law was owed. Yet he vigorously opposed the conclusion that Jews can use non-Jewish law when the two conflict. “The laws of their ancient sages, which oppose our laws, are not included in the scope of DDM. For, if they were, all the laws of Israel would be cancelled.” Various consent advocates also tried to limit what is properly deemed a law of “the kingdom” to core governmental functions such as taxes or matters pertaining to land, in order to keep the doctrine confined. . Shiloh, “Dina De-Malkhuta” (Heb.).

Law without Nation?

137

. Shiloh, “Equity as a Bridge,” . . See discussion in Edrei, “Law, Interpretation, and Ideology,” . . Boaventura de Sousa Santos, “Toward a New Legal Common Sense: Law, Globalization, and Emancipation,” in Law in Context (London: Butterworths LexisNexis, ), . .

Western Imperialism and Islamic Law marg aret kohn

The history of political thought traces the rivalry between two different sources of law: reason and convention. Plato, Hobbes, Locke, Kant, Bentham, and Nietzsche are a few of the figures who have influenced the way that we think about the basis of legitimate authority. The political philosophy canon, however, is not the record of all possible solutions to the problem of law and sovereignty; it is a set of texts chosen by a secular academy to reflect the intellectual genesis of its identity and core concerns. Thus it is not surprising that another alternative— divine law—is much less prominent. Students still read St. Thomas Aquinas and his famous discussion of eternal, natural, human, and divine law, but they typically encounter it as a turning point in the story of the victory of secularism (natural and human law) over dogma (revealed religion). It is probably not a coincidence that the importance of canon law, a supranational source of authority and legitimacy, diminished during the period when the nation-state was ascendant. The story of King Henry VIII’s rejection of papal authority over marriage and divorce and the subsequent formation of the Church of England is a paradigmatic illustration of this broader historical change. But it is also a distinctively European history. We should be careful about constructing universal theories about the relationship between the law and the nation-state on the basis of European history alone. In the Islamic world, the relationship between religion, law, and the nationstate developed in a somewhat different way, and a key factor in understanding this intellectual history is the legacy of colonialism and imperialism. In the Islamic world, the transformation from empire to nation-state was the result of a divide-and-conquer strategy that secured European political and economic interests. The main argument advanced in this chapter is that Islamic religious law

Western Imperialism and Islamic Law

139

was transformed and reappropriated in the twentieth century in part because it provided a way of understanding, institutionalizing, and expressing resistance to European domination. The nation-state system was introduced by the colonial powers to replace the Ottoman Empire, and it was associated with secularism, modernism, and foreign domination. Sharia,1 on the other hand, was a source of law and identity that existed independent of this system and therefore could be an instrument of resistance to European hegemony. This idea is not my own but rather the argument advanced by the influential Islamic modernist Sayyid Jamal ad-Din al-Afghani. Afghani was a late-nineteenth-century writer and activist who defended a distinctively political, pragmatic, and modern understanding of divine law. By linking the struggle against imperialism with the resources of Islam, he laid the foundation for Islamic modernism. This chapter explores the theme of “law without nations” by looking at it through the lens of Islamic law. It is beyond the scope of this chapter, however, to provide an overview of the complicated history of the relationship between religious institutions (mosques, madrasas, and courts) and the state in the Islamic world, but some background is useful in order to understand the novel way Afghani invoked sharia.2 The first section of the chapter provides a brief sketch of the concept of sharia. The second and third sections introduce Afghani and present a detailed analysis of his most influential writings. The fourth section draws attention to the contemporary relevance of Afghani’s approach to religious law.

I. Law and Religion in the Islamic World A number of scholars have pointed out that there is a troubling tendency to exaggerate the theocratic character of Islamic states in order to reinforce the impression of unbridgeable opposition between East and West. But it is also troubling to generalize about the political and legal significance of divine law based exclusively on European models and European history. The relationship between religion and secular authority developed somewhat differently in the Islamic world, in part because the Prophet Mohammed was both a religious and a military leader who bequeathed his followers a code of conduct that was understood to be divine in origin. Whereas the teachings of Jesus aimed to disrupt the legalism of existing Jewish practice, the teachings of Mohammed

140

margaret kohn

introduced a more uniform legal code that consolidated and transformed the varied traditions of Arab tribes.3 Furthermore, Christianity developed as a minority religion in the Roman Empire, whereas early Islam had a more theocratic character in its early phase. Despite these differences, there are also important similarities. In both medieval Europe and the Middle East, religion and politics were mutually interdependent. Islam and Christianity both developed semi­ autonomous institutional structures that had moral and cultural legitimacy but usually remained subordinate to state authorities. Islamic dynasties such as the Abbasids promoted Islam, endowed religious charities, and appointed religious judges (qadis), but they also developed an independent state bureaucracy, established autonomous royal courts, and issued edicts outside of the sharia system. In other words, religion was a legitimizing force without being the basis of authority.4 Why did secular and religious authorities manage to coexist without becoming hostile rivals? Perhaps clerical influence in the Islamic world was less threatening to the state because it was decentralized and dispersed. Unlike the centralized power of the pope and the hierarchy of the Catholic Church in Rome, Islam never had a unified, hierarchical institutional structure. Instead, it was composed of groups inspired by different doctrines (Sunni, Shia, Sufi) and religious leaders who attracted followers on the basis of their piety, learning, or charisma. The unifying principle was fidelity to sharia, which specified religious obligations and outlined a legal and moral system based on the teachings in the Quran.5 But the meaning of these key texts and the appropriate methods of interpretation was also the source of disagreement, which eventually led to the development of at least four different schools of jurisprudence (fiqh).6 Sharia differs from both the common law and civil law traditions of Europe. It is not codified in a set of rules nor is it based exclusively on the application of rules developed to adjudicate earlier cases. Instead, it is a complex process whereby judges consult precedents based on authoritative religious texts and apply them to cases using accepted methods of legal reasoning. The four basic sources of law are the Quran, the sunna, consensus (ijma), and analogy (qiyas). In addition to the Quran (which Muslims believe is God’s final revelation recorded by the Prophet Mohammed), the second basis of Islamic law is the sunna, a term that describes the way of life established by the Prophet. The sunna is known through the hadith, which documents the words and deeds of

Western Imperialism and Islamic Law

141

the Prophet based on oral traditions and testimonies. For the religious scholar, these textual sources raise a number of interpretive problems, including the difficulty in reconciling contradictory hadith and establishing the authenticity of testimonies that were often recorded generations after the death of the Prophet. Although the authority and authenticity of the Quran is not a subject of dispute, understanding its requirements is still complex. There are verses outlining the correct way of regulating ritual matters, marriage and family law, trade, crime, and other economic issues (poverty, charity, and so forth). But there are also internally contradictory verses, context dependent requirements, metaphorical passages, and a number of other challenges. The main debate in the early phase of Islamic jurisprudence was about the limits of interpretation (ijtihad)—in other words, how to apply these sacred texts in a flexible fashion without refashioning them to the point where human will substitutes for the divine.7 Most Sunni schools of jurisprudence concluded that “the gate of ijtihad was closed” in the third or fourth century and insisted that legal decisions should be based on the canonical accounts of early commentaries (taqlid) rather than on the judges’ independent interpretation of the Quran and hadith. The record of actual legal decisions, however, shows that closing the gates of ijtihad proved impossible in practice.8 Although sharia covered a range of substantive areas, it was “private” law that was used to settle disputes between private parties. The basic unit was the qadi court, which was presided over by a single judge (qadi) who reached decisions based on his own judgment and the doctrine of a particular school of jurisprudence (fiqh). If the qadi was unsure about the relevant legal doctrine, he could consult a legal scholar (mufti) who would issue a fatwa (ruling) on the disputed point. In some places, the qadi was also responsible for a range of administrative functions (notarizing documents, administering wills, and so forth) and, in litigation, he was responsible for interrogating witnesses. Although there was no formal system of adversarial representation, some petitioners would engage agents to plead on their behalf.9 Since sharia was widely considered the only legitimate basis of law, and religious experts were the ones trained in the law and authorized to make judgments in legal disputes, it might seem accurate to characterize Islamic states as theocratic, but this would be misleading. More frequently there was a dual legal structure, in which a semiautonomous clerical establishment was responsible

142

margaret kohn

for legal training, the development of legal doctrine, and staffing of religious courts, while a separate state bureaucracy controlled key institutions such as the military, police, taxation, and trade. In many regimes, the state also had its own court system (mazalim) that was not based on the rules of sharia because these courts gradually evolved out of the ruler’s practice of listening to the grievances of his subjects.10 Within the sharia system, high-ranking qadis were often appointed by the government and they usually relied on the police to enforce their verdicts, but their authority was rooted in an institutional structure with a great deal of autonomy.11 During the last half-century of Ottoman rule, the state extended its authority by exercising tighter control over religious judges and expanding its own independent imperial courts, but the looming struggle between empire, nationalism, and religious authority was transformed by a fourth factor, one that had no parallel in early modern Europe: the impact of imperialism.12 Instead of a gradual process of internal reform, the new nation-states were created either directly or indirectly by the pressure exerted by European powers.13 In some cases, European-style laws, courts, and bureaucracies were imposed by foreign powers (Algeria, Tunisia, Egypt). In others, however, domestic reformers turned to European models in an effort to strengthen their military and finances and maintain independence (Turkey, Iran).14 The nation-states that emerged from this process reflected the way that the region had been reconfigured through modernization and imperialism. The idea of sharia was marginalized but not defeated. It was mythologized as the cause of military power and glory in the early days of Islam and could be reimagined as a basis of unity and a source of law that could function as an alternative to European-style constitutionalism. But before sharia could take on this meaning it would have to be reconfigured as something consistent with reformist currents. Sayyid Jamal ad-Din al-Afghani is widely considered the founder of Islamic modernism, and his writing helps illuminate the theoretical basis of this transformation. Afghani developed his pragmatic, political defense of religious law in his best-known essay “Refutation of the Materialists.”15 The essay starts with a basically Hobbesian account of endemic conflict and then explains why divine law is the best method for creating social order. His main argument is that religion provides the conditions for societal advance and general well-being. Secular sovereignty is inadequate because it incorporates no mechanism short of revo-

Western Imperialism and Islamic Law

143

lution for ensuring that the rulers as well as the ruled follow the law. Although the essay emphasizes the universal validity of religion, it needs to be read as an intervention in debates taking place in the late nineteenth century, a period when European military, political, and economic domination over the Islamic world was growing. In spite of his frequent references to the Quran, Afghani’s critique of secularism and heterodoxy was political rather than theological. For Afghani, whose own orthodoxy was a matter of some controversy, Islam was a necessary source of unity, identity, and mobilization against imperialism.16

II.  Afghani’s Anti-Imperialism Sayyid Jamal ad-Din al-Afghani (8–) is widely respected today but during his lifetime he was a controversial figure. He worked as a political advisor, teacher, and writer in Turkey, India, Egypt, Iran, France, and Afghanistan.17 His thought influenced both the reformist and radical strands of political Islam. He was an early mentor of Mohammed Abduh, who is considered one of the founding figures of liberal Islam. Afghani’s ideas were appealing to Muslim reformers because he extolled the virtues of Western science. He also insisted that rationalism and science were not Western imports but traditional elements of Islamic culture. This position, however, was viewed with suspicion and hostility by the more traditional elements of the religious establishment. In  Afghani was exiled from Turkey because of a speech embracing Western science and defending philosophy as equal to prophecy.18 Even though this claim had roots in the Islamic philosophy of the tenth to thirteenth centuries, it was considered a heterodox view that had been repudiated by theologians. Despite Afghani’s activities as a reformer, he also inspired movements usually associated with the term “fundamentalist.”19 Afghani was a radical insofar as he embraced Islamic principles as a way of bringing about a distinctive political logic: modernization without Western hegemony. Over the course of Afghani’s career, he increasingly emphasized the importance of Islam as a framework for pan-national solidarity and resistance to European imperialism in the Middle East. He tried to forge an alliance between anti-Western reformers and traditional figures in the Islamic religious establishment. He laid the intellectual foundations for a coalition that would ultimately prove pivotal to the success of the Iranian Revolution in : an alliance between reformers and the ulama

144

margaret kohn

(Islamic scholars). Afghani was living in Iran in  when the Iranian government granted a British company a monopoly on the purchase, sale, and export of all tobacco grown in Iran.20 This concession directly affected the majority of the population and made the extent of foreign economic control apparent to everyone. Afghani, who had become a passionate anti-imperialist during his years living in British occupied India, used religious appeals to convince Iranians to resist this economic domination by unbelievers. He wrote a letter to the head of the Shia ulama, who issued a fatwa (ruling) calling for a boycott on the sale of tobacco. This boycott was successful, and the shah was forced to rescind the British concession. Even though some scholars have concluded that Afghani’s role may have been exaggerated,21 this outcome is strong evidence in favor of his view that Islamic identity could be a powerful force capable of motivating people to participate in the struggle against imperialism. Afghani’s writings point towards a new and distinctively modern justification for divine law.22 His redescription of Islam articulated a way of being modern without being Western. The modern world, for Afghani, was a place where European science, military power, and economic development had undermined the political autonomy and threatened the cultural identity of the Islamic world. Modernity and imperialism appeared integrally linked, and it was difficult to separate the technical innovations and culture from the military domination and economic exploitation that were key elements of the new global system. To the subjugated people of the Middle East, the West signified not only a geographical entity (Europe) but also a religious system, a history of geopolitical rivalry, and a set of values. To its detractors, these values were primarily negative: materialism, hedonism, secularism, and atomism. Others associated the West with science, rationality, critical thinking, and material progress.23 Some political leaders and intellectuals responded by arguing that the only way to reassert political independence was to adopt the Western practices that had ensured military superiority.24 This approach was realized most fully in Turkey under Ataturk (–) and was based on an integrated strategy that included secularism, nationalism, and modernization.25 It was emulated to varying degrees by other Muslim leaders in the early twentieth century, especially Reza Khan in Iran (–). The alternative was to reject Western society altogether and promote strict adherence to traditional religious practices, prohibitions, and legal and educational institutions. Afghani was among a small but influ-

Western Imperialism and Islamic Law

145

ential number of thinkers who tried to articulate a third way. He insisted on the social function of Islam and its consistency with rationalism and critical thinking. Afghani’s enduring intellectual influence stems from from his ability to describe Islam in a way that could appeal to both traditional Muslims and to reformers. In his own day, this project was marginalized, and the regimes that came to power after the dissolution of the Ottoman Empire—notably Ataturk in Turkey—were committed to nationalism, laicism, and modernization. But his vision continued to exert subterranean influence until it reemerged as a promising way to suture together different critiques of Westernization.

III.  Refutation of the Materialists Afghani’s best known work is usually translated as “Refutation of the Materialists.” According to Nikki Keddie, the essay was composed in  as an attack on Sayyid Ahmad Khan and his followers, the Neicheriyya.26 Khan was an influential public figure in British occupied India. Like Afghani himself, Khan was a reformer who defended reason and science. Unlike Afghani, however, Khan advocated cooperation with the British rather than nationalist or pan-Islamist opposition to foreign domination. According to Keddie, “Refutation of the Materialists” is a thinly veiled polemic attacking Khan’s movement because Afghani felt that the movement was undermining Muslim unity and Muslim identity. This political subtext, however, is not readily apparent in the essay. In a separate piece written during the same period, Afghani attacks Khan more directly, but the “Refutation of the Materialists” is a theoretical piece with few direct references to contemporary politics. In the essay, Afghani explains the social and political utility of religion, which he defines as a system of laws and practices based on the belief in a transcendent deity. Afghani argues that materialism is a source of corruption that causes social discord. He traces the concept of materialism back to its Greek roots and claims that it is an approach that is antithetical to the philosophy of Pythagoras, Socrates, Plato, and Aristotle. His examples of materialists (or naturalists) include Epicurus, Diogenes, and Darwin. According to Afghani, the logical consequence of materialism is the denial of the existence of a transcendent deity. Materialism therefore undermines people’s faith in religion. This is disastrous because religion is necessary to inculcate morals, ensure political stability, and foster civilizational advance.

146

margaret kohn

In “Refutation of the Materialists,” Afghani argues that religion teaches three important beliefs that have enormous social utility. First is the idea that man is created in God’s image and is therefore the most noble creature. Second, religion fosters a belief in the superiority of the community sharing one’s faith. Finally, religion teaches that earthly existence provides humans with the opportunity to perfect themselves and gain access to the afterlife. Each of these beliefs encourages humans to control their animalistic side and cultivate their higher capacities for love, justice, and wisdom. Not only does this improve the individual character, but it also establishes the conditions necessary for society as a whole to advance. According to Afghani, man’s animal nature is an obstacle that prevents him from truly flourishing. He notes that frequently men behave like sheep, for example when they face adversity with passivity and fear. Human beings are capable of actively creating the conditions that protect themselves from misfortune, but in order to do so, they need to control their animalistic side and defer gratification. Sheeplike passivity, however, is not the only threat to human flourishing. Men also behave like wolves or lions, tearing others to pieces. Religion subdues these vicious urges and valorizes man’s higher (more God-like) qualities. This emphasis on controlling our animalistic qualities is a theme in medieval Islamic philosophy. The echoes of neo-Platonism are strong even in Afghani’s most orthodox essay.27 The neo-Platonist opposition between the rational soul and animalistic body runs throughout the text. For neo-Platonists, the goal of philosophical practice was to attain understanding of universal, abstract ideas and loosen the grip of transitory corporeal existence.28 Under the influence of Islam, these goals had to be reconciled with monotheism and prophetic religion. Ibn Sina (Avicenna), for example, argued that Mohammed was a great philosopher who possessed both theoretical and practical wisdom. His practical wisdom gave him the ability to translate philosophical truths and principles of conduct into an idiom that was accessible to the masses. From this perspective, the Quran is a rhetorically powerful pedagogical tool for introducing the common people to lessons derived from higher levels of wisdom. Prophecy is not opposed to philosophy; instead, it reflects the artful combination of theoretical, imaginative, and practical reason. In his writing on education, Afghani emphasized the importance of studying Islamic philosophy, which he felt fostered a scientific, rationalistic mindset

Western Imperialism and Islamic Law

147

without uncritically imitating European models and strengthening European hegemony.29 “Refutation of the Materialists” reflects the influence of Islamic philosophy (falsafa), but it also evades some of the theoretical controversies, presumably in order to avoid directly challenging more orthodox views. Afghani’s discussion of the afterlife, for example, reflects this strategy. While never denying the possibility of bodily resurrection, Afghani implies that the body is simply irrelevant. Given the incorporeal character of God himself, the pleasures of the afterlife must be incorporeal. For Afghani, like Ibn Sina and Ibn Rushd, God is wisdom; therefore the best preparation for the afterlife is attaining wisdom. In “Refutation of the Materialists,” Afghani takes the familiar argument that religion, particularly the idea of a reward in the afterlife, is necessary to teach morality to the masses and gives it a more rationalist character. He insists that people should cultivate wisdom to share in God’s qualities both on earth and in heaven. In the next section of the “Refutation of the Materialists,” Afghani claims that religion is necessary because it produces three qualities that are essential for the common good: shame, trustworthiness, and truthfulness. According to Afghani, shame is more important “than hundreds of laws” for maintaining the social order.30 At first this statement seems to imply that Afghani rejects the legalism of the sharia tradition. But I think that this would be a misreading of this passage. In the context of the text as a whole, Afghani makes it clear that secular law, which is based purely on utilitarian calculation, is unstable and ineffective. Instead, people must internalize the law, and this is precisely the advantage of sharia, which is an ethical system and ritual practice as well as a legal code. Sharia works primarily through the soul and only secondarily through the law courts. He argues that shame is the attitude that binds society together. He explains: “This quality (shame) is the bond of human alliances, associations, and societies, since an alliance within one group takes place only when rules are maintained, and the maintenance of rules is never achieved except with this noble trait.”31 He seems to be making the sociological point that group solidarity is enhanced when the members agree to the same code of conduct. The feeling of shame at violating such codes is the only way to ensure that they are followed and thus to maintain social cohesion. Afghani does not explain exactly what role religion plays in cultivating a sense of shame. There are two things that Afghani may have had in mind, when

148

margaret kohn

he suggested that religion encourages a salutary sense of shame. First, he may have believed that the success of Islam in the seventh to the eleventh centuries was the result of the fact that it provided a uniform code of conduct that facilitated social intercourse between Arab tribes and peoples with different cultures. By creating a general set of guidelines for identifying honorable and shameful behavior, sharia laid the basis for a strong civilization. Second, Afghani notes that punishment (short of death) is ineffective in regulating the conduct of men who are surrounded by others who share base and corrupt values. In other words, the norms that develop in social life are not effective when there are subcultures that do not share the dominant values. Afghani implies that religion provides a uniform code that identifies shameful behavior and teaches individuals to internalize widely acceptable values. Afghani also argues that religion is necessary to ensure that people behave in a trustworthy and truthful manner. Although he does not use the language of the state of nature, he describes an irreligious world is a manner very similar to Hobbes. Know that man’s needs are many and the necessities of his life are innumerable. The things whereby he meets his needs are each hidden under a curtain. Each one is secluded somewhere under a concealing veil, and hidden without a name or sign. Know that thousands of calamities, misfortunes, and disasters lurk in every corner of the world. A deadly arrow aiming at man’s destruction is hidden in the bow of ages and in the turns of fortune. Although he may have come to realize the calamities that wait in ambush for him, he is unable to preserve his life.32

The only way to prevent disaster is by relying on the guidance and aid of others. Without solidarity—the only weapon against the ravages of fortune—commodious living would be impossible. Afghani’s argument, then, differs from Hobbes’s position in at least one important way. The adversities of the state of nature are not necessarily caused by other people. They almost seem to be intrinsic to existence itself. Even if the isolated individual were not attacked by other people, he or she would be vulnerable to hunger, natural disasters, animals, disease, and so forth. Solidarity with other people is portrayed as an essential and positive thing but a precarious achievement. Only when religion ensures truthfulness will individuals be able to rely on other people, their one resource in overcoming adversity. Here and throughout the text, Afghani’s defense of religion is sociological and political. He does not say that faith in God

Western Imperialism and Islamic Law

149

or prayer will provide the solutions to terrestrial problems. Instead, he suggests that religion provides the social conditions that allow humans to help each other. Afghani makes the political dimension explicit in his discussion of “trustworthiness,” the other quality produced by religion. He notes that government is necessary in order to ensure human flourishing. Someone must interpret revealed law, enact civil law, enforce the law, and settle disputes. The government must also collect taxes to fund projects for the common good (libraries, schools, hospitals, bridges, roads) and pay the civil servants who are responsible for public administration. But any type of government, whether republican, constitutional, or absolute, risks becoming corrupt and pursing its self-interest at the expense of the common good. He explains: The performance of their duties in a manner that keeps corruption from entering the government, by this fourfold group (e.g., religious experts, administrators, civil judges, and finance), who are the four pillars of governments, is based on the quality of trustworthiness. If they are not trustworthy the entire nation will be deprived of its tranquility and security; rights will be nullified, killing and plunder will become flagrant; the roads of trade will close; and the doors of poverty and indigence will open before the people.33

Only the moral trustworthiness inculcated by religion is capable of ensuring the rule of law. For Afghani, no purely political theory can provide the conditions for political order because religion is necessary in order to ensure that the rule of law will triumph over arbitrary power. To summarize, Afghani argues that religion is necessary to advance the common good by controlling the selfishness of both the people and the leaders. The divine functions as a constitutive ideal, a depiction of the best human qualities of reason, wisdom, responsibility, and benevolence. To be effective, this idea must be depicted and animated in a number of different ways, through philosophy, through the rhetorical power of prophetic religious narrative, and through legal codes. In the early period of Islamic ascendancy sharia provided a uniform code of conduct that fostered a high degree of unity, which in turn brought both military and commercial success. Under subsequent dynasties it was a moral law that served as a check on the despotism of government. Under imperialism, it had a new and critical role, that of unifying and mobilizing Muslim opposition to foreign domination.

150

margaret kohn

For Afghani, Islam is a form of law that is superior to the positive law imposed by the European powers and their client states. But his approach to divine law is also very different from the mainstream tradition of Islamic jurisprudence. He was primarily concerned with Islamic law as a set of behavioral prescriptions and an identity, which fostered a powerful solidarity that transcended national boundaries. In fact, he was a critic of the legal establishment, which he felt was partially responsible for the stagnation of Islamic civilization. In his “Lecture on Teaching and Learning” () he attacked the scholars who specialized in Islamic jurisprudence. He wrote: The science of principles consists of the philosophy of the sharia or philosophy of law. In it are explained the truth regarding right and wrong, benefit and loss, and the causes for the promulgation of laws. Certainly, a person who studies this science should be capable of establishing laws and enforcing civilization. However, we see that those who study this science among the Muslims are deprived of understanding of the benefits of laws, the rules of civilization, and the reform of the world. Since the state of these ulama has been demonstrated, we can say that our ulama at this time are like a very narrow wick on top of which is a very small flame that neither lights its surrounding nor gives light to others.34

Following Tariq Ramadan I read this passage not as an attack on sharia itself but rather a call for a revitalized jurisprudence that reflects “the original dynamism that animated the Quranic revelation to the first Muslims.”35 In other words, the divine law itself is like the candle, a source of illumination, but this potential is not realized because of the failings of the clerics. A new approach that infuses the ossified tradition of Islamic jurisprudence with the spirit of philosophy and the insights of science is necessary to ensure its vitality. In other words the gates of ijtihad (interpretation) must be opened.36

IV.  After Afghani Afghani’s writings explain some of the reasons why sharia has reemerged as a popular concept in the age of European imperialism and neoimperialism. In many places it is a source of legitimacy, unity, and social order. It can be imagined as the foundation for a distinctive and superior way of life, which makes its defense an important motivation for resistance to European domination and influence.37 It is a source of law without nations in a time and place

Western Imperialism and Islamic Law

151

where the nation-state has often been a site of subordination to the West rather than a framework for autonomy. This does not mean, of course, that sharia is necessarily any of these things. Principles drawn from sharia have been incorporated into the legal codes of many nation-states, and legal scholars have often counseled compliance with authorities rather than resistance. But insofar as the source of sharia is revelation rather than either reason or convention, it relies on a principle of legitimacy that is distinct from liberal-democratic political theory. Islamic law is also an alternative to the discourse of human rights. In other words, it includes concepts that can be used to critique domination in a way that does not reinforce Western hegemony by treating liberal norms and practices as universal truths. At least part of the contemporary appeal of Islam is due to the way that it functions as a symbol of resistance to the history of Western imperialism and its repercussions today. In “Muslims and Democracy,” Abdou Filali-Ansary argues that the nineteenth-century encounter with the West is the primary factor in understanding the contemporary salience of sharia.38 He explains that the dominant understanding of Islam as a totalizing system composed of a binding legal code, a set of religious practices, and a culture, is a recent invention projected into the distant past.39 The reality of premodern Islam was quite different. Although Muslim polities were bounded by Islamic principles, the rulers were not considered legitimate successors to the Prophet. The rulers were viewed as expedient insofar as they prevented chaos or anarchy. According to Filali-Ansary, the understanding of sharia as autonomous, sacred, and absolute was a political construction that emerged in the medieval period. Sharia became sacralized because this increased its status and power as a source of protection against the arbitrariness of despotic rulers. The nineteenth century was a period of radical transformation brought about through colonialism, and this balance between secular and religious authority was undermined. But rather than weakening the religious pole, it transformed sharia into a potent myth. Filali-Ansary explains: “The duality of fact and norm was inverted, as sharia-bound societies were confused with fully legitimate Muslim communities and deemed to be fully realizable through voluntary political action, whether of a peaceful or violent character.” In other words, the impact of imperialism and the creation of modern nation-states that emerged from the maelstrom engendered an intense nostalgia for a past that never really existed, a period when sharia was the guid-

152

margaret kohn

ing principle of fully legitimate states. Under these circumstances, a universalist, absolutist version of sharia lost its critical edge and became a totalizing ideology. Divine law always exists in uneasy tension with secular political authority. Since divine law is sacred it is a powerful source of authority and legitimacy, but, as Hobbes pointed out, it can also inspire dissent, critique, and disobedience to secular law. The idea of sharia, a holy law based on the word of God, is beset by certain constitutive tensions. It is divinely inspired yet inevitably it must be interpreted and applied by human beings. All legal systems must find a way to negotiate the tension between the sacred basis of their authority (tradition, the process of founding, principles deduced by reason) and the power-laden practices of exercising authority. Yet this issue is particularly complicated in the case of divine law, because of the greater distance between the source of law (God) and the practice of law (man). This problem is heightened in cases when the source of divine law is understood as universal and transcendental, as in monotheism, because this breaks the link between law and territory. It raises the potentially contentious issues of whether political leaders have the authority to interpret religious law and how the relationship between the two domains should be conceived. Although this was an important question in European political theory in the medieval and early modern periods, factors such as the dominance of the nation-state, the growth of secularism, a functional differentiation of spheres, and a norm of toleration have contributed to its diminished salience in the nineteenth and twentieth centuries. In the Islamic world, on the other hand, religious law seems to be experiencing a resurgence. A number of countries, including Egypt, Sudan, and Iran have adapted their constitutions or legal systems to include explicit reference to sharia as a source of legal authority and doctrine.40 Muslim political actors and theorists have also advanced a wide range of novel arguments drawing on religious law to criticize existing state structures. Perhaps Ayatollah Khomeini’s Islamic Government is the best known and most influential argument for basing a new system of government on the principles of Islamic jurisprudence. But Khomeini’s distinctive combination of traditionalism and innovation is just one in a wide range of positions. A more moderate group of Islamist intellectuals has developed influential and creative positions on a range of contentious

Western Imperialism and Islamic Law

153

issues including the role of ijtihad (interpretation) and the relationship between the sharia, which is divine, and the fiqh, which is human. Yusuf al-Qaradawi, for example, emphasizes the need to interpret sharia in order to ascertain God’s purpose and then apply these insights in a flexible fashion to existing communities.41 The underlying assumption of this approach is that fiqh as a human creation can never fully embody the sharia. This means that contemporary Muslim communities should not reify earlier codifications of fiqh, which may contain traces of past practices that are not of divine origin and are ill-adapted to present circumstances. By desacralizing fiqh, Qaradawi’s approach could unleash the critical potential of sharia against traditions that are based on the practice of earlier Islamic societies rather than the core principles of Islam. In other words, it could reconfigure sharia as a resource for critiquing the authoritarian practices of the state or social injustice.

V.  Conclusion Legal theories always reflect, perhaps imperfectly, their political context. They emerge in order to legitimize or resist dominant forms of government. The Roman Empire embraced the moral universalism of stoicism; feudalism imagined itself as the natural extension of the patriarchal family; the emerging nation-states of modern Europe insisted that social contract theory reflected timeless truths. Sharia, as Afghani reminds us, was a legal code that facilitated the expansion of the Islamic Empire. Under the conditions of European imperialism, however, it was reimagined as a source of resistance to the West. Given the linguistic and ethnic heterogeneity within the Muslim world, and the decentralized organization of its religious and political institutions, the universality of religious law was a particularly promising basis for unity and identity. Afghani’s text, by itself, cannot explain why Islam has become such a resilient source of identity and meaning. To answer that question would require a detailed analysis of a wide array of factors and a careful historical narrative to weave them together. Yet Afghani’s anti-imperialist defense of religion alerts us to an important factor to consider. It helps us understand religious law not simply as an anachronistic rejection of modernity but as a vital alternative to the narrative of imperialism as the harbinger of civilization.

154

margaret kohn

Notes . There are many different approaches to the challenge of transcribing Arabic words into English. I have decided to use the most common spellings found in the secondary literature and to follow the convention of omitting diacritics in essays that are not oriented toward specialists. . For example, in “Commentary on the Commentator,” Afghani writes: “Since I am certain that the Absolute Truth will not destroy this true religion and right sharia, I more than others expect that the minds and souls of the Muslims will very soon be enlightened and rectified by the wisdom of a sage.” In Nikkie Keddie, An Islamic Response to Imperialism: Political and Religious Writings of Sayyid Jamal ad-Din “al-Afghani,” trans. Nikkie Keddie (Berkeley: University of California Press, ), . There are a number of other passages where he uses “religion” and “sharia” as synonyms. For example, in a newspaper article clarifying that he did not advocate the separation of Muslims from Hindus in India, he wrote, “Tel n’est pas notre propos et ce n’est point ce à quoi nous appelons ni ce que permet notre religion et notre sharī‘a.” Cited in Tariq Ramadan, Aux Sources Du Renouveau Musulman: D’al-Afghani à Hassan al-Banna: un siècle de réformisme islamique (Paris: Centurion, ), . . Albert Hourani, A History of the Arab Peoples (New York: Warner Books, ). . See Sami Zubaida, Law and Power in the Islamic World (New York: I. B. Tauris, ); Knut Vikor, Between God and the Sultan: A History of Islamic Law (London: Hurst and Company, ). . Mohammed Hashim Kamali, Principles of Islamic Jurisprudence (Cambridge: Cambridge University Press, ). . Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon, ). . Vikor, Between God and the Sultan, –. . See Wael Hallaq, “Was the Gate of Ijtihad Closed?,” International Journal of Middle East Studies , no.  (): –. . Zubaida, Law and Power in the Islamic World, –. . Ibid., –. . Zubaida, Law and Power in the Islamic World. . See Niyazi Berkes, The Development of Secularism in Turkey (London: Hurst, ). . Timothy Mitchell, Colonising Egypt (Cambridge: Cambridge University Press, ). . Berkes, The Development of Secularism in Turkey. See also Bernard Lewis, The Emergence of Modern Turkey (Oxford: Oxford University Press, ).

Western Imperialism and Islamic Law

155

. Sayyid Jamal ad-Din al-Afghani, “The Truth about the Neicheri Sect and an Explanation of the Neicheris,” in Keddie, An Islamic Response to Imperialism. . For an interpretation emphasizing this argument, see Elie Kedourie, Afghani and ‘Abduh: An Essay on Religious Unbelief and Political Activism in Modern Islam (London: Cass, ). . This section of the chapter draws on an earlier essay of mine entitled “Afghani on Empire, Islam and Civilization,” Political Theory , no.  (): –. These pages are reprinted with permission from SAGE. . See Nikki Keddie, Sayyid Jamal ad-Din “al-Afghani”: A Political Biography (Berkeley: University of California Press, ). . I prefer the term “radical” instead of “fundamentalist” for two reasons. First, following Bobby Sayyid, I think that the term “fundamentalist” primarily marks that which seems alien, threatening, and unassimilable to the West. Second, scholars have suggested that the term is confusing and imprecise because many Islamic radicals employ novel and allegorical readings of scripture that depart from traditional interpretations. The term “radical” communicates two key elements of contemporary Islamist movements: a return to roots and also a sense of dramatic change. See Bobby Sayyid, A Fundamental Fear: Eurocentrism and the Emergence of Islamism (London: Zed Books, ); Ervand Abrahamian, Khomeinism: Essays on the Islamic Republic (London: I. B. Tauris, ). For a recent discussion of the term “fundamentalist,” see Roxanne Euben and Muhammed Quasim Zaman, Princeton Readings in Islamist Thought: Texts and Contexts from alBanna to Bin Laden (Princeton: Princeton University Press, ). . See Nikki R. Keddie, Religion and Rebellion in Iran: The Tobacco Protest of –  (London: Cass, ), –. . Keddie, An Islamic Response to Imperialism. . For an excellent overview of the contemporary scholarship on al-Afghani in the Arabic world, see Rudi Matthee, “Jamal al-Din al-Afghani and the Egyptian National Debate,” International Journal of Middle East Studies , no.  (): –. . See Ian Buruma and Avishai Margalit, Occidentalism: The West in the Eyes of Its Enemies (New York: Penguin Press, ); Stuart Hall and Bran Giebe, eds., The Formation of Modernity (Cambridge: Polity Press, ); Cemil Aydin, “Between Occidentalism and the Global Left: Islamist Critique of the West in Turkey,” Comparative Studies of South Asia, Africa, and the Middle East , no.  (): –. . One example of this approach was the Tunisian Khayr al-Din. See Albert Hourani, Arabic Thought in the Liberal Age – (Cambridge: Cambridge University Press, ). . Binnaz Toprak, Islam and Political Development in Turkey (Leiden: E. J. Brill, ).

156

margaret kohn

. Keddie, An Islamic Response to Imperialism, –. See also Aziz Ahmad, “Sayyid Ahmad Khan, Jamal al-d­in al-Afghani and Muslim India,” in Studies in Islamic Culture in the Indian Environment (Oxford: Clarendon Press, ). . On Islamic philosophy, see Majid Fakhry, A History of Islamic Philosophy (New York: Columbia University Press, ). . Muhsin S. Mahdi, Alfarabi and the Foundation of Islamic Political Philosophy (Chicago: University of Chicago Press, ). . For a discussion of Afghani on education, see Sharif al-Mujahid, Sayyid Jamal al-Din al-afghani: His Role in the th Century Muslim Awakening (April ), Master’s thesis, McGill University. . Sayyid Jamal al-d­in al-Afghani, “Refutation of the Materialists,” in Keddie, An Islamic Response to Imperialism, . . Ibid. . Ibid., . . Ibid., . . Sayyid Jamal ad-Din al-Afghani, “Lecture on Teaching and Learning,” in ibid., –. . Ramadan, Aux Sources Du Renouveau Musulman, –. . Afghani held somewhat contradictory views on the need for orthodoxy. For example, he condemned the materialism of the batiniyya (esoterics), emphasizing that their nonorthodox ideas could erode commitment to divine law and undermine the line between “lawful and prohibited” conduct. Sayyid Jamal ad-Din al-Afghani, “Refutation of the Materialists,” in ibid., . . For a more detailed version of this argument, see Ann Elizabeth Mayer, “Law and Religion in the Muslim Middle East,” American Journal of Comparative Law , no.  (Winter ). . Abdou Filali-Ansary, “Muslims and Democracy,” Journal of Democracy , no.  (): –. . Ibid. . Some regions in Nigeria, Malaysia, and Pakistan have also adopted elements of the sharia system. See Radical Islam’s Rules: The Worldwide Spread of Extreme Sharia, ed. Paul Marshall (Lanham, MD: Rowman and Littlefield, ). . Raymond Baker, Islam without Fear: Egypt and the New Islamists (Cambridge: Harvard University Press, ), .

Ethnic Cleansing, Genocide, and Gross Violations of Human Rights: The State versus Humanitarian Law e l azar bar kan No paradox of contemporary politics is filled with a more poignant irony than the discrepancy between the efforts of well-meaning idealists who stubbornly insist on regarding as “inalienable” those human rights, which are enjoyed only by citizens of the most prosperous and civilized countries, and the situation of the rightless themselves. (p. ) The Second World War and the DP camps were not necessary to show that the only practical substitute for a nonexistent homeland was an internment camp. Indeed, as early as the thirties this was the only “county” the world had to offer the stateless. (p. ) —Arendt, “The Decline of the Nation-State and the End of the Rights of Man”

How does the international community respond to the dilemma of expanding standards of international human rights law when confronted with the continuity of ethnic expulsion as a common practice? This question that can be posed with regard to other human rights norms aims to interrogate the relation between aspirations of human rights on the one hand and the impact of this discourse on political realities on the other hand. The international acceptance of the practice of expulsion, accompanied by the rhetoric of moral outrage and pronouncements of prevention, raises the question: what difference does the law make? The disjuncture can also be examined through the role of remedy: what is the international response to the violation of the prohibition on population displacement in all of its manifestations—namely, what is the place of the right of repatriation in theory and in practice? This chapter begins by describing the state of expulsion, followed by a short review of the various legal instruments that reject population transfers and ethnic cleansing, and the use

158

elazar barkan

of these instruments by advocates to assert that population transfers have always been illegal despite the widespread practice of such displacements. Based on these assertions, advocates and international organizations (including the UNHCR) further assert that the remedy for expulsion is repatriation, although this contradicts the international practice. There has been great dissonance between the declarations and practice of refugee politics throughout the twentieth century and a disturbing relationship between the rhetoric of human rights and the practice of expulsion. The present historical investigation explores the continued displacement of refugees as a result of failed repatriation and the lack of alternative policies. It underscores first the almost total lack of examples of minority return as a result of implementing the right to repatriation, with few exceptions that are a result of politics and force, not implementation of rights. This predicament between rhetorical emphasis on rights and lack of action is explored as a particularity of the legal limbo of refugees, who are not citizens of the state that is supposed to protect them. But perhaps the predicament is even wider and applies to rights more generally: the chapter ends with a discussion of Arendt’s emphasis on the refugee and the violation of the rights of refugees as an emblem of the limitation of the notion of rights.  Displacement as a result of ethnic conflict continues to be widespread. Two recent crises, in Kenya and in Georgia, illustrate the challenges facing the international community. We begin in Kenya, where ethnic displacement, in particular in the Rift Valley, resulted from the post- election violence. Yet a political resolution brought together both parties of the Kikuyu and the Luo to form a coalition government under international pressure, and consequently most of the displaced were returned to their original areas within less than a year. The number of recognized internally displaced people (IDPs), and of displaced camps left behind, was minimal. Although this was a very short and violent ethnic conflict, the return of the IDPs may point to a successful case of repatriation. Indeed at the time of writing, despite the simmering political situation, the return has not sparked significant retaliatory violence. Whether this would last through the scheduled  election and later, remains to be seen. What was the role of human rights in framing the repatriation? If we measure it by political declaration, it was certainly important. However, on closer inspection, the return can hardly be viewed as the implementation of the right of return. The

Gross Violations of Human Rights

159

repatriation resulted from a government policy to diminish the number of the IDPs, not to uphold their rights. This included both the nonrecognition as IDPs of those lacking property, and pressuring those who were not willing to return to do so. There is no doubt there were those who did return willingly and believed in the forthcoming peace.1 But coercion was also used to push IDPs back to their home areas, not necessarily their homes, which in many cases did not exist. Those forced, or pressured, to return took place especially early on, when a majority of IDPs were not ready to go back at all to their farms in the Rift Valley. The government policy was to determine whether the situation in places from which the IDPs fled was viewed as peaceful (by the government, which had an interest in presenting a back-to-normalcy situation), to be followed by pressured and forced return. Thus IDPs were listed as resettled when they were only transferred back to the areas from which they fled rather than their homes. Initially many were registered as settled, even in cases where they remained in transit sites near the original places from which they had fled. Notwithstanding the success of the policy, it violated the principle of voluntary repatriation. If repatriation is the goal, the question may be: should it be pursued as a matter of rights or a policy? All sides had a vested interest in believing in the success of the return process, but longer perspective is needed to determine whether the policy was successful. The Rift Valley had seen previous displacements and return in the last half-century since independence. The dilemma of strong policy versus rights had a very different outcome in Georgia. In the spring of , the U.N. General Assembly took up the protracted refugee crisis in Georgia, adopting a resolution recognizing “the right of all refugees” (including victims of reported “ethnic cleansing”) to return to Abkhazia and their property rights. It “regretted” the attempts to alter prewar (–) demographic composition and called for the “rapid development of a timetable to ensure the prompt voluntary return of all refugees and internally displaced persons to their homes.”2 The vote was  member states in favor to  against and  abstaining (May ). It is hard to imagine the vote as a strong endorsement of repatriation. This was largely a post-Soviet exhibition game, where several of the postcommunist countries poked the Russian bully in the eye. The Russian response came later in the summer. In reaction to escalating tension and a hard-to-comprehend decision by Georgia to attack South Ossetia, the prepared Russian army devastated Georgia within days, and would

160

elazar barkan

have run the country over had it not encountered a relative robust international opposition. This international support had been a contributing factor in the war. In addition to the seeming support by the U.N., bravado statements from U.S. politicians certainly played a critical role in encouraging Georgia’s President Mikheil Saakashvili to attack Ossetia in August . The summer war uprooted between , and , people, who joined the previously displaced refugees from the early s, aggravating the refugee crisis. Many of the earlier refugees were from Abkhazia, a region in Georgia where ethnic war followed Georgia’s independence in . Russia supported the separatists in both Abkhazia and South Ossetia regions, who achieved de facto independence from Georgia. While the war was ongoing and the Georgian army had the upper hand, there was widespread belief that Georgians intentionally burned down and looted Abkhaz homes, as well as perpetrated violence including torture and murder. The Abkhaz conventional view, supported and argued by their ethnic leadership, sees the ethnic violence as intentional and planned.3 Analogous views are held by the Georgians. This ethnic animosity quickly led to widespread ethnic conflict and expulsion of about , Georgians (almost  percent of the population) from Abkhazia (–) and about , from South Ossetia. Together with the  refugees, there were anywhere up to , displaced.4 Smaller numbers of Ossetians were expelled to Russia. The region, which had been multiethnic, though with clear delineation of the ethnic groups in different localities, with particular economic ties and occupations, has become largely ethnically homogenous. The displaced ability to return to the region of their former residence depended very much on their ethnic identity: those who were uprooted from an area where they were a majority were more likely to return. These included Georgians from certain areas in Abkhazia, and Ossetians to Russia. The rest mostly lingered in displacement limbo. Following the war, there has been greater willingness to enable the refugees/IDPs to rebuild their lives in Georgia, giving up on repatriation to Abkhazia and South Ossetia. In a nutshell, the dilemma was how to assist the refugees and the IDPs to rebuild their life. The political situation is anchored in a rights dilemma: should the refugees rebuild their life in their old homes—that is, be repatriated? Or should the assistance be directed to help them resettle in new areas?

Gross Violations of Human Rights

161

 Ethnic cleansing as a phrase was invented in the early s initially to apply to the Serb treatment of other minorities.5 But the horrid practice of expulsions of whole populations by the victors in wars has existed ever since recorded history. The Israelites vanished from history into the mythology of the ten lost tribes in one of the early records of ethnic cleansing, perpetrated by the Assyrians in the eighth century BCE, forcing entire conquered populations to resettle in other regions in the empire.6 Many others have suffered a similar fate, often with few survived to tell the tale. Since the late nineteenth century, however, the practice has often been viewed as integral to modernity and nation-building. In the twentieth century ethnic cleansing took place as population transfers during peacetime by mutual agreement between and among states and was internationally sanctioned. Gross violations of human rights, war crimes, and mass violence have characterized modern society and modernization. Over the last two centuries, most countries have inflicted violence on foreign and domestic populations, leading to uprooting and the mass movements of refugees and displaced persons. The violence and the sacrifice of populations have characterized the face of modernity. The suffering was immense. As many as  million refugees were uprooted in the course of this domestic and international political violence. Of those, many millions were repatriated, but many millions were not. Most of those who could not return remained displaced for years, at times for decades and generations. From Rohingyas from Burma to Palestinians in Lebanon, from Sudanees in Kenya to Bhutanese in Nepal, the list of protracted refugee crises is long. Most of these refugees face the challenge of rebuilding life and finding a haven, of which returning to the country of persecution may or may not be a component of the solution. This dilemma is most acute in the cases involving ethnic conflict and the issue of minority return in contexts of interethnic conflict. It focuses on the fate of those displaced millions who were never able to return to their homes and ask why some were permanently displaced, while others were able to return and rebuild their communal life. The answer is both complex and simple. Multiple factors shape each particular crisis. Yet when minorities are uprooted, there is generally one constant: the displacement often becomes permanent. More

162

elazar barkan

significantly, the international community is unable to reverse the expulsion in any significant way, even in the rare cases where strenuous efforts were exerted. There are other alternative ways to focus on resolving refugee suffering, but an exclusive focus on return inflicts further suffering on the refugees. This is particularly poignant, since the primary declared international policy underscores repatriation as the desired policy. Ethnic cleansing in the modern world is characteristic of political transition, most often of imperial expansion or disintegration followed by the rise of the nation-state. As such it is a widespread norm rather than an exception. The consolidation of the nation-state, sorting out rival ethnic powers, leads to additional population shifts and expulsions.7 The modernity of the refugee displacement resulted from both the technological developments that made travel and transfer of people easier, as well as the homogenization of the nation-state. Both of these created the impression of unprecedented phenomena. The new ethnic refugees created at the end of World War I by the disintegration of the three empires in Eastern Europe who had nowhere to go, as well as the pace and the number of refugees, gave contemporaries the impression that nothing similar existed, though of course there had been earlier instances. The novelty modern refugees faced resulted from the decline in the feasibility of open migration. First came the closing of the American immigration gradually from the end of the nineteenth century (first exclusion was of Asians), and sweeping exclusion after World War I. This transformed earlier migration trends into refugee crises. The U.S. closure of its borders was followed soon by similar practices by the British dominions and later by Latin American states. The definition of “refugee” may have differed, but there is little dispute that refugees were distinct from ordinary immigrants because of the abrupt dire circumstances that forced them to leave their homeland, as well as their inability to find a new home. As the nineteenth-century havens disappeared, the modern refugee was born. The origin of protracted refugee crises goes back to the mass slaughter in both world wars. The refugee crises that began slightly earlier, as a result of the Balkan’s wars, resulted in the new international refugee regime that emerged out of the demographic and nationalist policies extant in the wake of World War I, and the way these were formalized in treaties. Previously, refugees who fled repressive governments had been free to migrate to help forge new states. In the new regime, passports were introduced, entry was limited, and borders

Gross Violations of Human Rights

163

became barriers. Nations were to have their own states. Minorities were afforded protection or moved en masse to polities where they were to be part of the majority. Borders were realigned. The old diplomatic Viennese authoritarian system based on government continuity and preservation of a stable order of states and empires was displaced by a regime of communal rights that favored nation-states, national self-determination, population exchanges, and ostensibly the protection of minorities. Though inaccurate, the convention that following World War I borders moved, while in the aftermath of World War II peoples were moved, provides a dramatic description of the phenomenon that encompassed the emergence of the modern refugee.8 Concurrently with the growing and widespread nationalistic exclusionary structure evolved the international human rights system and the international agreements and conventions that included at its heart the humanitarian care for refugees. This new order, though, failed to prevent widespread bloodshed and sacrifice. Following World War II a new dominant regime emerged. Changing borders became the exception, and the interwar rhetorical obligation—it had never existed in practice—to protect minorities within states was abandoned. States became self-enclosed reified entities as the doctrine of nonintervention in the domestic affairs of states reigned. The new regime was based on individual rather than communitarian human rights, including the rights of individual refugees not to be returned to a persecutory regime that had targeted them. This was correctly dubbed a revolution in the international regime, as states willingly qualified their sovereign authority, created a specific regime of rights for refugees, and allowed individuals who legitimately feared persecution to claim the protection of a state of which he or she was not a member.9 States that abused their own citizens became subject to criticism to try to shame them into behaving in accordance with the new rules. However significant the shift was, it is crucial to note its limitation. In response to the exile of millions of refugees worldwide, refugees were given protection only if they could prove they were individually persecuted. The new mantra was individual rights not collective self-determination. Although most refugees were subject to persecution because of their identity and membership in a group, their recourse was limited as individuals. This phase in the development of human rights began in earnest in , when the U.N. approved the Universal Declaration of Human Rights and the Genocide Conventions within

164

elazar barkan

a day of each other. These accomplishments were quickly followed by the Geneva Convention () and the Refugee Convention (/). But the remnants and aftermath of violence haunted the pursuit of virtue based on individual rights. This flurry of activity to establish new rights and protections took place as the international community was reeling under the weight of some of the largest ethnic expulsions ever. Tens of millions were forced from or fled in Europe and Asia. Most have largely disappeared from global political consciousness. But many—and their descendants—continue to suffer or at least to claim redress. Some exist largely away from public attention, such as in India; while others, primarily the Palestinian refugees, remain an open wound in international politics. Following World War II, a war that was understood to be in part the result of irredentism, the policy of ethnic cleansing in the name of national security and homogeneity became widespread. This continued the prewar and war practices, and although neither ethnic nor cleansing were yet political concepts, the expulsions were very much prevalent political realities. The norm of mass transfer of populations faced very little opposition and was pursued in the name of national sovereignty and homogeneity. The expulsions were supported by the international community: by democracies and authoritarian regimes alike. The population expulsions in the three years following World War II constituted the worst global refugee crisis of the last century.10 The displaced persons in Western Europe numbered  million, including forced labor, prisoners, and deportees. There were a comparable number in Eastern Europe. Many of those, perhaps save  million, repatriated themselves very soon after the end of the war. Those who would or could not be repatriated came to populate the DP camps.11 In addition to the population transfers within the emerging Soviet bloc, the number of the displaced in Central Europe and in the Indian subcontinent was between  and  million refugees in each region. In India, the disagreements are whether the number of refugees in the nine months after August  was closer to  or  million Hindus, Sikhs, and Muslims who were expelled and forced to flee. The disagreements over the number of dead are comparable: from less than , to more than . million. The continuity of mass expulsion after the war was not an accident. Nor did it come without planning. Many viewed the expulsions as preventing future conflict. One has only to look to Herbert Hoover, who, in  as coordinator of the

Gross Violations of Human Rights

165

European relief effort, commented on the “hardship” involved in mass expulsion: “[B]ut it is less than the constant suffering of minorities and the constant recurrence of war.” This was a conventional view. British Prime Minister Winston Churchill explained that separation of minorities will avoid “endless trouble. . . . A clean sweep will be made.”12 By , Polish and Czech politicians across the political spectrum were convinced of the desirability of the postwar expulsion of Germans. As World War II came to a close, the Allies at the Yalta (February) and Potsdam (July –August ) conferences in  decided to redraw the map of Europe by forcibly moving  million Germans, more than  million Poles, and hundreds of thousands of Ukrainians, Hungarians, and other groups to create ethnically homogeneous states. The Potsdam Declaration promised that these transfers would occur “in an orderly and humane manner.”13 After , a democratic Czechoslovak government and a communist Polish government pursued broadly similar policies toward their German minorities. The early Czech removal of the Germans was dubbed “wild transfers” and preceded the “organized” transfers that began in January . The transfer was anything but spontaneous. As a result of intensive lobbying by the exiled Czech government in London14—which, in a perverted way, was obsessed with international law—the transfer of Germans was executed according to what it (primarily Benes) perceived was the law. (This included not expelling the Germans to the Soviet zone, because, according to Potsdam, they were supposed to be distributed in the various zones.) In Poland, the violence accompanying the forced migrations reached its height in the war with the Ukrainians, who actively resisted repatriation in  and , using guerrilla tactics to sabotage the migration efforts. The last Ukrainians were transferred only after the Polish authorities wiped out the guerrillas. Revenge may not have been a virtue, but it certainly legitimated these expulsions. The Czech justification in the United Nations for expelling more than  million Germans—“we have suffered more than many delegates in this room can imagine”—was given by the representative of a most liberal government. The horrors of the war’s aftermath could only be comprehended against the devastation of the war.15 The violence of the expulsion underscored the distinction between high policy and the fate of refugees. The policy of transfer was planned, but the practical details were often driven by local conditions. Yet local conditions seem to emulate

166

elazar barkan

each other, and may well be thought of as characteristic of the process of ethnic cleansing—including the prevalence of revenge and violence. The formal decisions often came well after expulsions and transfers were in full swing while local officials, swamped by refugees and shortages of resources, did not provide protection for the refugees and often exploited them. The more we learn about the state of refugees, the more we understand that this was the norm; the pretense of policy is often recognition of an absence of a detailed action plan. The chaos of disinformation (what happened and where) in time became a political issue. The uniqueness of these massive deportations and expulsions is that these were done with the full support of the international community. This is possibly the last time that Western democracies in Europe explicitly supported massive ethnic cleansing as a policy undertaken (as Benes and others believed) in accordance with international law. More recently, in the former Yugoslavia and in Cyprus, Western countries were resigned to expulsion in practice, but did not support the practice and often denounced it. Iraq has gone through a similar process of “ethnic separation” under U.S. domination. This predicament of leaders—primarily in the West—who simultaneously support(ed) cleansing and rights provides the historical background to the growing rhetorical edifice of protection for refugees and human rights more generally. As Europe fell into a long peaceful period, it coincided with the international community’s failure to resolve minority refugee crises and its focus on declaratory and impractical solutions. During the Cold War the number of contained violent conflicts and refugees continued to escalate. Devastations and even genocides recurred from Biafra16 to Cambodia.17 Committed (but detached?) spectators to these crimes spoke the language of international morality as the language of universal human rights evolved in small steps. A few NGOs captured the world’s attention, most notably Amnesty International. Notwithstanding the rhetoric, the major powers were cautious in their actions and stayed away from promising to protect rights of self-determination except in the dismantling of the remnants of the colonial world. Western states no longer pushed to defend minorities and only protected the rights of the persecuted, whose main safeguard was not to be returned if they escaped their oppressors. In the intervening decades of the Cold War, the anticolonial struggle and domestic civil rights campaign became the focus of public virtue. The human rights regime gained momentum. Aspirations increased. The collapse of communist regimes was significantly impacted by hu-

Gross Violations of Human Rights

167

man rights discourse and amplified demands within the communist countries for even embryonic human rights. The victory emboldened activists and organizations globally and led to a zenith of human rights demands. Similar to the first phase of a spate of human rights legislation, the s witnessed increased activism in behalf of human rights. Paradoxically, it was accompanied by a parallel dramatic climb in violence and ethnic cleansing. As the genocides became more apparent, and ethnic cleansing became a household word, the insistence on subsuming a solution to the refugee crisis within a language of rights became more resolute. At the same time, the moralist regime championing individual human rights revealed itself as largely impotent in the face of mass persecutions. Yet, under the mantra of individual human rights, refugee return became the desired resolution. The optimal goal was viewed as repatriation of refugees to their place of origin, where they would be protected by the regime under the watchful eye of the international community. This was viewed as the preferred solution, even in cases of minority return. The discrepancy between the moral ideals of repatriation and its implausibility in the real world in cases of ethnic conflict, however, did not lead to any re-evaluation of the principles or the language of rights that informed these policies. Instead, repatriation is often seen as resurrecting refugee rights as a presentist utopia. The former Yugoslavia, and specifically Bosnia, provided the perfect opportunity for repatriation of refugees. Following the Dayton Accord, the public commitment of leaders in the West for repatriation and reversing ethnic cleansing, and the establishment of the High Representative who had the power, and used it to fire noncooperative officials, the anticipation of repatriation was very strong. Indeed, many see Bosnia as a successful case of repatriation: more than half of the  million refugees returned. A closer analysis suggests this perception is wrong. Almost all the returnees were ethnic majority returns, while very little minority repatriation took place. The shortcoming of minority repatriation in Bosnia is the strongest case suggesting why minority repatriation should not be considered a preferred solution.

Expulsions as Crimes Mass expulsions were viewed in  for the first time as a war crime. It came in a declaration adopted by representatives of the nine occupied coun-

168

elazar barkan

tries, exiled in London, which stated that the Nazi crimes were products of “regimes of terror in the occupied territories . . . characterized in particular by . . . mass expulsions.”18 It was not the population transfer itself that established the crime, but the judgment that the action was a by-product of state terror. This was followed by the Nuremberg Trials, where the notions of crimes against the peace, war crimes, and crimes against humanity were all formulated in order to provide a legal framework to previously nondefined crimes. Policies that in substance were criminal but had never been illegal heretofore were defined as such for the first time, and thus was born a new category in international law. The German policies of annexing territories and obliterating their former national character, which began after , became a war crime and a crime against humanity.19 The Nuremberg Trials addressed deportations and resettlement by German colonists. The principles of the tribunal became part of international law. However, the crimes became the subject of interpretation of a particular case, not of abstract principles. Further, most scholars agree that the Nuremberg Trials had little if any impact on international practice in the following fifty years.20 Nazi crimes of genocide and ethnic cleansing were viewed as distinct from the mass population transfers performed by the Allies. The latter were carried out in order to homogenize the national character of the newly liberated countries, avoid future ethnic conflict, and ensure long-term peace. Nazis, on the other hand, were indicted for carrying out compulsory population transfers and were convicted partly on the basis of that indictment. Few dispute that the Allies’ fight in World War II was defensive. The allies were liberators, not occupiers, and the new governments of the liberated Eastern European countries were viewed initially as legitimate regimes, not occupiers. (In the Baltic, the situation was different.) The evolving forbidden crime was not the act of population transfer per se, but rather depended on the existence of an aggressor and occupation, as in the Nazi case, that made transfer into a crime. The ethnic cleansings at the end of World War II were criticized by few at the time, except by the victims. This was the culmination of the previous half-century, where ethnic separation was the preferred solution to ethnic conflict. Given the ethnic xenophobia that served as the cause of the war, many accepted the expulsions as necessary, and one would dare say, morally right. The first order of priority was to avoid future ethnic feuds. In this, the experience of deportation created continuity between World War II and the first years of the

Gross Violations of Human Rights

169

postwar period. This is a sad historical reminder, but one that is indispensable if we are to try to understand the political context and under what circumstances forced expulsions of population constitutes a crime. This is, at least, what the defenders of the legality of those transfers argue.21 Others claim that whatever the justification, the forced transfer of the German population in the immediate post–World War II years was illegal under international law.22 Whether legal or not illegal in the s, increasingly scholars have accepted this interpretation for the present. A crucial distinction regarding many of the postwar expulsions is that these were done with the support of and by democracies, and within the context and by the same countries that established the United Nations. Many of the ethnic transfers were done within the context of building a better world, rejection of racism, and establishing the human rights regime. It preceded slightly the adoption of the Genocide Convention, but the convention and population transfers at the time did not seem to be contradictory. The postwar and the international system were invented by the same people who supported the creation of ethnic homogeneity as a condition for safeguarding security. The coexistence of massive ethnic cleansing and human rights draws our attention; the duality of positive moral aspirations and the negation of crimes against humanity come to characterize the postwar international system.

The Question of Legality and Norms Against the background of the clear dichotomy between Nazism, extermination camps, and mass killing, on the one hand, and harsh but not genocidal population transfers on the other, the Geneva Convention23 stipulated mass forcible transfers by any occupying force as prohibited regardless of their motive, without reference to the Allied-sponsored transfers. These were not done by occupying forces. Even today there is no single code of international law that explicitly outlaws population transfers either in terms of group or individual rights protections. The closest is the Rome Statute of the International Criminal Court (ICC) (Article .b.viii), which defines deportation by an “Occupying Power” as a war crime, and “Deportation or forcible transfer of population” as a “crime against humanity” (Article , see below). Previously, many human rights laws and provi-

170

elazar barkan

sions have been so interpreted, including the Convention on the Prevention and Punishment of the Crime of Genocide.24 Additional international instruments include the U.N. Charter, in particular its nondiscrimination principles and the Universal Declaration of Human Rights (UDHR) adopted by consensus December , . Then came the U.N. laws concerning nationality (Draft Convention on the Elimination of Future Statelessness, ) that upholds the principle of local status of communities of habitual residence related to the right of nationality followed by the International Convention on the Elimination of All Forms of Racial Discrimination (; ), which articulated in the mid-sixties “The right to leave any country, including one’s own, and to return to one’s country” (Art. d, (ii)). This was formulated as a civil right, without a reference to membership in a group or a minority, and without addressing the question of mass deportation. Similarly the situation with the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights (); the Conventions of the International Labor Organization. These were expanded in regional conventions such as the  African Charter on Human and Peoples’ Rights, which for example, states: “The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups” (Article , ). However, even these international instruments make no mention of repatriation but of the right of individual return. The prohibition is in the context of ensuring individual free movement and gives great latitude to the government to determine its conditions. The formulation is of a freedom of movement, as an individual right, while the praxis is a state responsibility: “Every individual shall have the right to leave any country including his own, and to return to his country” (UDHR, , ). The latter right may be subject to restrictions provided for by law “for the protection of national security, law and order, public health or morality” (African Charter, Article , ). Similarly the  American Convention on Human Rights (Art. , ) explicitly and absolutely outlaws expulsion: “No one can be expelled from the territory of the state of which he is a national or be deprived of the right to enter it.” While the prohibition against expulsion is absolute and unequivocal, the right of return is conditional upon the state’s concern with security and maintaining law and order. The  Fourth Protocol to the European Convention absolutely outlawed expulsion of individuals or groups that were citizens of the state, as well as claiming freedom of movement

Gross Violations of Human Rights

171

for all, but did not introduce an absolute ban on obstacles to return. Given the various prohibitions, one conclusion might be that peacetime transfers are less proscribed than in wartime. This is particularly true if they do not involve exile nor discriminate on the basis of race. There is an implied permission to transfer populations for economic development and other reasons, and states do exercise that right. Although individuals are protected from expulsions and have the right to enter their own country, and the American, African, and European conventions see fit to outlaw separately the collective expulsion of aliens, none of these documents mandates [or even mentions] repatriation. This leaves the issue of remedy open and casts a shadow on any claim of an international predisposition to privilege, or even accept, repatriation as a norm. Abstracted from historical context, these conventions, and particularly the earliest one, the Geneva Convention, suggest a straightforward prohibition. However, the convention was formulated during and immediately following the mass population exchanges and deportations of –. As the postwar international order and the refugee regime were being established, these same countries and individuals pursued policies of ethnic and national homogenization as a precondition for security. Sometimes the agreements were entered into after the fact, as in the largest exchange of all, the movement of  (or up to ) million Muslims and Hindus between India and Pakistan ratified retrospectively by the New Delhi Accord signed April , .25 Under these circumstances, deportations, expulsions, transfers—whatever we call these “forced exchanges” of population—were an acceptable policy. The determining factor in their legality was whether the deportation resulted from war that was not declared to be a war of aggression or as a result of agreement between and among states acting in behalf of ethnic or national homogenization.26 What was not allowed was the forcible transfer of populations in or out of territories (the state’s own into and the enemy out of) captured in an aggressive war. The Geneva Convention and the principles contained in Article  can be interpreted as limited to allow deportation as a defensive, preventive, or retrospective mechanism to ensure security. While the basic guarantee contained in this provision is a prohibition of individual and mass forcible transfers, the breadth with which “imperative military reasons” could be (and often is) interpreted by warring parties leaves doubt as to the de facto protection this article

172

elazar barkan

might provide for the vast majority of cases. The indeterminacy of the specific legal state of population displacement does not mean that eminent jurists and scholars have not pronounced such forced transfers as illegal, in violation of human rights, and as a crime against humanity at the time or in retrospect.27 As a result of the above instruments, particularly the U.N. Charter and the UDHR, the implied rights of refugees and of transferred populations increased, but the “rights of return” never fully achieved an explicit affirmation on their own. Ultimately, we are left in interpretive limbo. This is particularly pronounced as to the applicability of any kind of customary international law to the well-known and still-controversial population transfers of the late s: the Palestinians, people across the Indian subcontinent, and ethnic Germans and other Europeans. An even larger number of displaced people exist in the former Soviet Union, where some  million former Soviet citizens now live outside their republic of origin.28  Another way to look at the emerging regime dealing with transfers is to examine institutional practices and not just refer to legal norms. An institutional history is beyond the scope of this chapter, but it is worth noting that the first organization after the war to be devoted to resolving the status of refugees was the U.N. Relief and Rehabilitation Administration (UNRRA). It was established during the war (as a result of a forty-four-nation conference at the White House on November , ), with the goal to “repatriate and assist the refugees who would come under Allied control.” It was funded mostly by the United States. By  UNRRA was replaced by its successor organization, the International Refugee Organization (IRO), and within three years by the UNHCR. The IRO was charged first with repatriation. Resettlement was to be a second option, to be taken only if repatriation failed. A quick institutional transformation had to take place, and the IRO had to be shut down, in part because of the dilemma of repatriation. It was replaced in December of , by the Office of the U.N. High Commissioner for Refugees (UNHCR). In July  an international instrument to protect the rights of refugees came into effect. As almost everyone agrees, the central issue in the institutional reform was the prevention of the forced repatriation of individuals who feared persecution. Significantly, the birth of the UNHCR was predicated on the rejection of the then-existing

Gross Violations of Human Rights

173

obligation of legal repatriation partly in order to avoid the obligation of repatriation to the Soviet Union, which did not participate in drafting and signing the charter of the new agency or the new convention on refugees. In  this prohibition against forced repatriation was supplemented by the Protocol Relating to the Status of Refugees, which extended such protections to all refugees and not just those in Europe. The UNHCR was set up so an international body would assume responsibility for the protection of refugees. Unfortunately, it was a body that lacked a police force to provide for their security, lacked an independent source of income to provide for their welfare, and, most important, lacked any ability to confer membership in a polity. It is one thing to declare that people have the right for nationality; it is quite another to be able to get a nationality, any nationality. Instead of protecting the groups that were expelled, the focus on refugees shifted to viewing them as individuals. Although the vast majority of refugees suffered as a result of their flight from violence and conflict between groups, the Refugee Convention focused on individuals who fled across borders, although they were members of a group—a national, ethnic, or religious minority, or a political party—that had been targeted for persecution. The legal characteristic of the new UNHCR regime was based on the premise that convention refugees were to be treated as individuals, and that the international system should attempt to resolve their predicament as individuals by providing them with international protection. In , Alfred de Zayas wrote that “a very serious challenge to human rights which has not been effectively dealt with in positive law is the problem of mass transfers of population, which may occur within one country, across international frontiers, in time of peace, or in time of war. . . . A convention on the prevention and punishment of this crime against humanity should be adopted.”29 This plea was repeated two decades later. A comprehensive U.N. brief aimed to substantiate the human rights case against population transfer concluded in the s that no legal code “universally prohibits population transfer as such.”30 That conclusion did not mean to minimize the general agreement regarding the prohibition against population transfers, but to underscore the significant fact that the international system has been unable, perhaps unwilling, to explicitly outlaw population transfers. Indeed, population transfer has been prohibited only in cases where other human rights violations are involved. The

174

elazar barkan

prohibition is even more inadequate because the definition of “exile” is subject to debate. The claim that exile applies to both internal and external exiles or that its absence from other human rights instruments is due to its status as a rule of customary international law relies on wishful thinking when compared with widespread international practice. (The narrower interpretation of “exile” as a punishment for a criminal offense would not be pertinent to populations.)  This refugees’ limbo is a manifestation of a fundamental predicament between humanitarian action and privileging sovereignty. Each principle on its own is viewed in general as moral and worthy. Confronting the two principles, the incoherence presents obstacles to international action. The prioritization of states over people relegates refugees to a dependency that requires the assent of the state in order to pursue any humanitarian action, let alone repatriation. Any political resolution requires some initiative by the involved states. In cases where (civil) war leads to a refugee crisis along ethnic or religious lines, the refugee’s identity as belonging to a specific group is oftentimes the most dramatic factor in determining the feasibility of resolving the crisis. Yet ethnic, national, and religious groups have no rights per se; that is separate from the state institution. Although there are conventions that protect minorities within states, a protection that the international community is very ill equipped to provide, the ethnicity of the refugee group does not figure in international law as a variable. In the absence of positive law, the argument against population transfers and even more so in support of repatriation (“the right of return”) is grounded in customary international law. Such international custom is a general practice accepted as law and manifesting the belief by states that the law required them to act that way. Certain aspects of customary law no doubt are shaped by public beliefs as asserted by writers, public intellectuals, and advocates. The nature of international customary law, however, extends beyond the contention whether it is the actual norm in practice or not, and involves the question of whether it is instituted as part of domestic law. Committed rhetoric cannot just will a norm or shape an interpretation of customary international law. Indeed, the historical records illuminate the discrepancy between our current declared norms and moral commitments, on the one hand, and the fact that expulsion has long been the practice (the “norm”) in times of crisis on the other.

Gross Violations of Human Rights

175

The problem is to ground the “customary” aspect of the prohibition that exists in U.N. declarations and statements into actual international policy and practice. Although the United Nations has issued many statements in relation to prevention of population transfers over the years, most often these were vintage U.N. generalities that failed to articulate any specific principled obligations for states, settling instead for vague demands for “international cooperation.” The reason for population transfers varies, ranging from aggressive wars, military imperatives, violent foreign occupation, civil wars, the pretext of national security, or even peacetime politics. Transfers include expulsion and colonization of an area by the new population of a different ethnicity from the expellees. Depending on the specific circumstances, each population transfer encounters different legal standards and principles, yet, as De Zayas concludes, “[It] is difficult to imagine an involuntary mass deportation that would not violate” humanitarian law. The rationale is that population transfer and displacement always threaten life, liberty, and security, which are secured in different conventions including the UDHR and the International Covenant on Civil and Political Rights (ICCPR, ). Other rights, such as the freedom of movement, are similarly violated. Since the s, the United Nations has focused attention on the link of mass expulsions to human rights violations, and has advocated repatriation. But the international efforts have always focused on aiding refugees in crises, not on preventing the crises. These instruments offer relatively weak protection. And the protection of groups is even more limited than of individuals. Even the most explicit document, the ICCPR protection of individuals from expulsion from their own country, allows states to abrogate their responsibility in the face of a national emergency, which is the very essence of ethnic conflict or civil war. Consider the following pitifully modest statement, which was the best a U.N. report on population transfer could garner in  in the midst of the Balkan ethnic cleansing and on the eve of Rwandan genocide: “Forced eviction may form one of the central mechanisms of population transfer, particularly when applied on a large scale and against a distinct population group. Therefore, it is encouraging that this issue will be considered in the forthcoming report of the Secretary-General.”31 Only with the coming into force of the International Criminal Court (ICC) after the Rome Statute did deportation and forcible transfer of a population

176

elazar barkan

became one of the crimes that could be directly prosecuted (Article , Crimes against Humanity). However, the ICC charge is limited to individuals, so while individuals and leaders can be charged with this crime, it still falls short of creating a mechanism where the responsibility of the state can be adjudicated. The implementation of this prohibition and its impact are yet to be seen. But even this positive development falls short of redressing the lack of explicit legal cum political mechanism in support of repatriation.  Nation-states inevitably discriminate between citizens and noncitizens, even though noncitizens living within its jurisdiction are increasingly afforded protection for most universal rights, so that refugee claimants in many Western jurisdictions are guaranteed the right to counsel and the right to a hearing before a quasi-judicial body. Nevertheless, the fact that rights are being extended to noncitizens, and then not all rights, and certainly not the right to stay, suggests that this so-called human right is more akin to positive rights, like dignity, that are acquired, rather than natural rights, which are supposedly inherent in being human and universal. It is through membership in the state that one has rights, and it is the state, on which the individual relies to protect those rights, that is a precondition of those rights. Without the most basic right to belong to a state, one is stateless and rights then become something very esoteric. The history of suffering in the last century is in part a history of those who lost their right to participate in and be defended and protected by the state. Hanna Arendt focused our attention on statelessness as the core of the Enlightenment failure, recognizing that the Enlightenment philosophers failed to anchor the proposition of rights in any political institution, since they could not imagine an alternative political model to the state. This has become painfully apparent in Europe as a result of World War I, as refugees and others suffered from the evaporation of their rights as the state vanished due to political earthquakes, including war and revolutions. This lack of rights, as has been correctly recognized, can only be remedied by a reconstitution of political identities and the formation of new forms of community. For Arendt, human rights were meaningful only when enforceable, which meant only as citizen rights. Thus, the basic conception of the modern political system was the premise of political subjects. A very early essay dealt with the

Gross Violations of Human Rights

177

issue of a people living in a land that was perceived as belonging to another. In her  essay, “The Enlightenment and the Jewish Question,”32 she described how a Jewish minority moved from being a physically segregated minority with very limited “rights” through civil emancipation following the French Revolution and the Emancipation Edict of , whereby Jews were expected to be recognized as equal sharers in human reason and, therefore, equally human as individuals. However, the emancipation was also premised on the obliteration of themselves as Jewish, as people with a particular history, as Jews with a Jewish past into citizens of various states with a plethora of particular histories with a particular but also archetypal immigrant experience. Thus, the paradox: if they accepted emancipation in full, they denied that history as the precondition even of requiring emancipation; if they clung to that history and their identity as a people, to some degree they rejected the universality of human rights applicable to individuals as distinct from peoples. Thus, modernity was premised on a two-sided paradox. On the one hand, it was identified with universal rights of the individual. On the other hand, it depended on recognition of group rights to self-determination and possessing a state that guaranteed the very rights that were purportedly universal. This descriptive fact underscored the fatal flaw of the modern nation-state system, a system that required states to protect rights rather than those rights being protected by membership in a cosmopolitan order of humanity. In Arendt’s masterpiece The Origins of Totalitarianism, the central chapter that analyzes the question of rights focuses on refugees.33 It was through statelessness that Arendt exposed the tension between the state and humanity. Further, the underlying paradox of the “rights of man” as universal and inalienable were also vitiated and jeopardized by social structures and economic interests. The real world kept intruding on the purity and absoluteness of those abstract universal rights. Hannah Arendt, both as a refugee herself and as a political observer during the interwar years, had plenty of reasons to focus on statelessness as the abyss of modernity. As a refugee rescued from Europe, she had worked to help other refugees and had written an article on refugees during the war in the small Jewish magazine Menorah, in which she had articulated the central argument that she was to make several years later in The Origins of Totalitarianism. The context of statelessness during the war illuminated her principal concerns, and these would be amplified by the widespread expulsion after the war.

178

elazar barkan

Attempts to protect minorities through minority treaties were a failure. In the new states created by the peace treaties after World War I, one-third of the population belonged to minorities. The treaties were not the result of any humanitarian vision of minority rights; rather, minorities were considered only insofar as their welfare contributed to the stability of the region. The provisions for minority protection were conceived as specific remedies for each state, where the state is the main concern not the individual human. Members of minorities were viewed more as subjects of the state than citizens, and were in the final analysis at its mercy. For Arendt, the nation-state system was an abomination that did not function, because it relegated people to stateless or minority status rather than treat them as fully fledged political beings who could realize their full potential within the bosom of a polity. A fundamental shortcoming of the Minorities Treaty was that their protection depended on an international body. The state, instead of being an honest broker among its individual members, became a representative of one group, the majority nation, and protected others as minorities only if they did not challenge the hegemony of the majority nation or the power of the empire that guaranteed the nation its right to self-determination. Hannah Arendt thought refugees, people who are effectively citizens of nowhere, provide a test case for human rights as well as a key test of modernity in general. For her, the traditional division between statelessness, those outside their country who had no state to which they could return, and refugees, those outside their place of birth but to which they did not want to return because there they would be persecuted, was a distinction without a difference. People had no rights unless they were a member of a polity. Arendt thought that the concepts of national sovereignty and human rights not only easily came into conflict but also were inherently contradictory: national sovereignty always superseded any rights given to the refugees. Further, rights themselves were an abstraction. When a human being is stripped of her citizenship, then she becomes aware that the only thing she has left in her naked state are rights, and they are empty of meaning without a state to give them force. Further, in the opposite situation, when a human lives in a state that protects her rights, that individual becomes almost oblivious that she has rights. That is the paradox: life in a state that protects rights condemns one to blissful ignorance of those rights; life without citizenship and the ability to enforce

Gross Violations of Human Rights

179

rights sentences one to recognizing and becoming acutely aware of the rights one holds dear. Arendt entitled her chapter “The Decline of the Nation-State and the End of the Rights of Man” because when the nation-state ends, as a political reality for the individual and the group, so too do the rights of humans. Thus, human rights and the rights of states are not only opposed, they are also inextricably linked, like Siamese twins. That is why the status of statelessness and the conception of the refugee bring such clarity to the nature of both rights as well as the nation-state, and, in addition, the relationship between the two: “[T]he concept of the Rights of man based on the supposed existence of a human being as such, collapsed in ruins as soon as those who professed it found themselves for the first time before men who had truly lost every other specific quality and connection except for the mere fact of being humans.”34  Over the last generation the UNHCR has advocated repatriation as the preferred solution for most refugees, but any actual formulation of a “right” to repatriation is more complicated. The repatriation argument is often based on two rationales: first, individuals have a right to their homes. Repatriation is a condition of exercising that right. Thus, states have obligations to assist refugees to return, and the home state has an obligation to allow the return so they can retrieve their homes. Second, refugees as an exiled population can evolve into “refugee warriors” or a recruiting ground for rebel groups and thus serve as a continuing source of conflict. Repatriation is thus perceived as a precondition to peace. Both assertions are complicated. People have the right to their homes. However, even a broad reading of the right of repatriation recognizes that in many if not most cases, there are no homes and at times not even communities to which to return. Thus, advocates replace the concept of the “home” with that of the “home region,” which raises the question of whether this refers to a polity or geography. Since repatriation has not been articulated as a right, its content is at best vague. The claim that repatriation is a precondition to peace, a widely believed assumption, has proven to be simply incorrect.35 Over the last three decades, the human rights community adopted both the widely shared belief that expulsion of populations is prohibited, and that repatriation is the preferable and truly just remedy. This priority is based on the conviction that every displaced group is entitled to return to its geographic home area (and oftentimes to the home itself); every state is required not only

180

elazar barkan

to readmit its nationals but also to readmit those who historically resided in that land but whose citizenship was taken away and even those who were never citizens. Sometimes the entitlement is even extended to the descendants of these groups. This obligation is thought to embrace minority members who have been forced out via ethnic cleansing or have sought refuge elsewhere during a time of war. The emerging belief is not based on any explicit provision of international law or convention. Indeed, it contradicts many of the practices that constitute precedent and customary international law. The tension between the ideal conception of the right to repatriation and the reality of the limited provision for repatriation (in particular, minority repatriation) in customary law, and the concrete reality of very few cases of repatriation of persecuted or expelled minorities (none as a matter of “right,” few as a result of political conflict resolution), raises questions about the international legal foundation and historical justification of this claimed right. Repatriation in cases where the refugees are members of the majority group contrasts sharply with the denial of minority repatriation. The juxtaposition underscores an inconsistent pattern of rights and political conditions. In light of the widespread belief that the right not to be expelled and to obtain the remedy of repatriation are wellestablished rights and not merely aspirational norms, it may come as a surprise that not only are there long precedents in international law for legally enforced population transfers, but that even in more recent times these repatriation rights are supported only minimally by positive law and rest largely on creative extensions of various humanitarian legal instruments and declarations. In addition to arguing that there should be a necessary connection between rights and the obligation to return refugees and displaced persons to the homes from which they fled, some advocates insist that there has in the past been such a necessary connection. Historically it is very clear that no such connection existed. Furthermore, in spite of many efforts to make such a necessary connection in the name of “rights,” history demonstrates disconnect in reality where the moral claim to base return on rights prolonged the conflict and led to a further victimization. The aspiration for repatriation is one clear example where the incoherence of human rights—that is, when one right conflicts with another, such as selfdetermination of one group and a host of individual rights of members of the group—has received too little academic analysis. The difficulties and inhibitions of prioritizing rights, and certainly of doing it in a consistent manner across

Gross Violations of Human Rights

181

polities and cultures, together with the formal commitment in the human rights community and rhetoric for universality and indivisibility of rights, result in burdening the refugees in this case with carrying the claim of national right to repatriation, for years, sometimes decades, without the humanitarian and individual solution to the very suffering of being a refugee. Facing the empirical historical facts of lack of repatriation of displaced minorities may encourage advocates to explore other solutions to alleviate the suffering of refugees.

Notes This paper relies heavily on a book manuscript I am writing with Howard Adelman. . Florence Chepkemoi: “We decided to return when we were told there was peace,” Mt. Elgon, July ,  (IRIN). . http://www.un.org/News/Press/docs///ga.doc.htm. . Catherine Dale, “The Dynamics and Challenges of Ethnic Cleansing: The Georgia-Abkhazia Case,” Refugee Survey Quarterly , no.  (). . That would include the Gali IDPs, who were considered persons of concern in the spring of  by the UNHCR. . An early use in English of the term appeared in the Washington Post, August , : “The Croatian political and military leadership issued a statement Wednesday declaring that Serbia’s ‘aim is obviously the ethnic cleansing of the critical areas that are to be annexed to Serbia.’” . The Israelites were not unfamiliar with the practice, and carried vengeance (“remember what Amalek did to you”) into a policy (“you shall blot out the memory of Amalek from under heaven”). Deuteronomy :–. . Sir John Hope Simpson, The Refugee Problem: Report of a Survey (London: Oxford University Press, ); compare Aristide R. Zolberg, Astri Suhrke, and Sergio Aguyo, Escape from Violence: Conflict and the Refugee Crisis in the Developing World (Oxford University Press, ); Norman M. Naimark, Fires of Hatred: Ethnic Cleansing in Twentieth-Century Europe (Cambridge: Harvard University Press, ). . The border stability of  is only relative to . The physical borders in Eastern Europe changed, but no new countries were established. . Erika Feller, Volker Türk, and Frances Nicholson, eds., Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge: Cambridge University Press, ). . Michael R. Marrus, The Unwanted: European Refugees in the Twentieth Century (New York: Oxford University Press, ); Andrew Bell-Fialkoff, Ethnic Cleansing (New York: St. Martin’s Press, ); Robert K. Schaeffer, Warpaths: The Politics of Partition

182

elazar barkan

(New York: Hill and Wang, ); Robert K. Schaefer, Severed States: Dilemmas of Democracy in a Divided World (Lanham, MD: Rowman and Littlefield, ). . Earl G. Harrison reported to President Truman in August  (“The Treatment of Displaced Jews in the United States Zone of Occupation in Germany”) that, in Germany and Austria, there were “more than six million displaced persons” (non-Germans). Mark Wyman, DPs: Europe’s Displaced Persons, – (Ithaca, NY: Cornell University Press, ); Tony Judt, Postwar: A History of Europe since  (New York: Penguin, ), –. . Both the Herbert Hoover and Hugh Gibson (The Problems of Lasting Peace [Garden City, NY: Doubleday, ], ) and Churchill quotations are in Krystyna Kersten, “Forced Migration and the Transformation of Polish Society in the Post War Period,” in Redrawing Nations: Ethnic Cleansing in East-Central Europe, –, ed. Philip Ther and Ana Siljak (Lanham, MD: Rowan and Littlefield, ). See also Mark Kramer’s introduction to the volume; and Mark Kramer and Ana Siljak, “‘Separate’ Doesn’t Equal Ethnic Peace,” Washington Post, February , , B. . The Potsdam Declaration (July , ) in Article XII provided for the orderly transfer of the German population: “The Three Governments, having considered the question in all its aspects, recognize that the transfer to Germany of German populations, or elements thereof, remaining in Poland, Czechoslovakia and Hungary, will have to be undertaken. They agree that any transfers that take place should be effected in an orderly and humane manner.” There is a significant debate about the “irony” (Kramer and Siljak, “‘Separate’ Doesn’t Equal Ethnic Peace”) that ethnic cleansing brought peace to Eastern Europe. This translates into a contemporary conversation about secession and the conditions of population transfers. This was particularly noted in relation to Bosnia. Among the advocates are Chaim D. Kaufmann and John J. Mearsheimer. See Ana Siljak in her concluding essay and Mark Kramer in the introduction (Ther and Siljak, eds., Redrawing Nations), noting both the peace and the cost of ethnic cleansing. . Christopher Kopper, “The London Czech Government and the Origins of the Expulsion of the Sudenten Germans,” in Ethnic Cleansing in Twentieth Century Europe, ed. Steven Bela Vardy and T. Hunt Tooley, East European Monographs (), –. See also Ther and Siljak, eds., Redrawing Nations. . Marrus, The Unwanted, ; Alfred-Maurice De Zayas and Charles M. Barber, A Terrible Revenge: The Ethnic Cleansing of the East European Germans, – (New York: St. Martin’s Press, ). . Compare Alfred Obiora Uzokwe, Surviving in Biafra: The Story of the Nigerian Civil War (Writers Advantage, ). . Compare Ben Kiernan, The Pol Pot Regime: Race, Power, and Genocide in Cambodia under the Khmer Rouge, – (New Haven, CT: Yale University Press, ). . British and Foreign State Papers, ,  (in A. S. Al-Khasawneh and R. Hatano, “Preliminary Report,” E/CN./Sub.//, July , ).

Gross Violations of Human Rights

183

. Compare Article  (b) of the Charter of the International Military Tribunal; International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal (IMT), Nuremberg, –,  vols. (London: H.M. Stationery Office, –), vol. I, . See Alfred M. de Zayas, “International Law and Mass Population Transfers,” Harvard International Law Journal , no.  (): –, . . Telford Taylor, the U.S. assistant prosecutor at the International Military Tribunal and chief prosecutor at the twelve Nuremberg Trials under U.S. jurisdiction, in his reflections on those trials (Anatomy of the Nuremberg Trials: A Personal Memoir [New York: Alfred Knopf, ]), claimed them a success in that the U.N. General Assembly Resolution of December , , “affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal” (). Only at the very end of the twentieth century and in the twenty-first century have there been criminal indictments for genocide and crimes against humanity. Certainly, no political leader in the twentieth century appears to have been deterred from genocide, ethnic cleansing, or even aggressive war, at least because of any fear of a criminal trial. . Compare I. Brownlie, International Law and the Use of Force (Oxford: Clarendon Press, ), . . Alfred M. de Zayas, Nemesis at Potsdam: The Expulsion of the Germans from the East (Lincoln: University of Nebraska Press, ); see also “International Law and Mass Population Transfers,” –. . The reference is to the Fourth Geneva Convention of . The first three of the Geneva Conventions discuss the treatment of victims of war. Compare Fourth Geneva Convention “relative to the Protection of Civilian Persons in Time of War” (first adopted in , based on parts of the  Hague Convention IV); the Fourth Geneva Convention of  (the Geneva Convention relative to the Protection of Civilian Persons in Time of War, August , ); the General Assembly resolution  (III). . Claire Palley, “Population Transfers,” in Broadening the Frontiers of Human Rights: Essays in Honour of Asbjørn Eide, ed. Donna Gomein (Oslo: Scandinavian University Press, ), . . A U.N. report in  referred to the “New Delhi Accord” between India and Pakistan which sought to regulate the population transfer between India and Pakistan and the chaos that accompanied these exchanges, “as a formal recognition of a fait accompli, not as evidence of the use of law to enforce transfer.” But it was the coda to the description that exposed the lack of an international standard on the principle: “Such exchanges,” it read, “having some degree of voluntariness and arguably in the interest of eliminating the source of foreseeable interethnic conflict within independent States, involve a tragic human rights trade-off which deserves deeper study to guide future practice and provide better protection.” . (Para. ). It called for a “deeper study” but made no declaration of illegality. Compare Al-Khasawneh and Hatano, “Preliminary Report,” E/CN./Sub.//, July

184

elazar barkan

, , para. . The report also offers alternative legal views on the legality of the Volkdeutsche transfer. . “The commentary states that this clause was adopted ‘to prevent a practice adopted during the Second World War by certain Powers which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories. Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.’” De Zayas, Nemesis at Potsdam, . There is no exception clause to this last prohibition. See Al-Khasawneh and Hatano, “Preliminary Report,” paras. , . . International Commission of Jurists (ICJ), The Events in East Pakistan (Geneva: ICJ, ); Niall Macdermot, “Crimes against Humanity in Bangladesh.” International Lawyer , no.  (): -. . The human rights dimensions of population transfer, including the implantation of settlers. Khasawneh and Hatano, “Preliminary Report.” . De Zayas, “International Law and Mass Population Transfers.” The call that a “convention on the prevention and punishment of this crime against humanity should be adopted” remained unanswered. . The human rights dimensions of population transfer, including the implantation of settlers. Al-Khasawneh and Hatano, “Preliminary Report,” http://www.unhchr. ch/huridocda/huridoca.nsf//fcacecdef?OpenDocument. . The human rights dimensions of population transfer, including the implantation of settlers. Ibid. . Hannah Arendt, “Aufklärung und Judenfrage,” Zeitschrift fur die Geschicgte der Juden in Deutschland  (), and republished in English as “The Enlightenment and the Jewish Question,” in The Jewish Writings: Hannah Arendt, ed. Jerome Kohn and Ron H. Feldman (New York: Schocken Books, ), –. . Chapter , Part II, on Imperialism. The chapter is entitled “The Decline of the Nation-State and the End of the Rights of Man.” The book was completed in  and published in . . Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, ), ch. , “The Decline of the Nation-State and the End of the Rights of Man.” . Howard Adelman, “Repatriation of Refugees following the Signing of Peace Agreements: A Comparative Study of the Aftermath of Peace in Fourteen Civil Wars,” in Thematic Issues in Peace Agreements following Civil Wars, ed. Stephen Stedman et al. (Boulder, CO: Lynne Rienner, ).

Geertz’s Challenge: Is It Possible to Be a Robust Cultural Pluralist and a Dedicated Political Liberal at the Same Time? r ichard a. shwe der We seem to be in need of a new variety of politics, a politics which does not regard ethnic, religious, racial, linguistic, or regional assertiveness as so much irrationality, archaic and ingenerate, to be suppressed or transcended . . . . It depends on developing a less simplistically demonizing, blankly negative attitude toward it as a relic of some savage or some early stage of human existence. It depends on adapting the principles of liberalism and social democracy, still our best guides for law, government, and public deportment, to matters with respect to which they have been too often dismissively reactive or uncomprehending; philosophically blind . . . . That is, a new approach depends on our gaining a better understanding of how culture, the frames of meaning within which people live and form their convictions, their selves, and their solidarities, comes to us an ordering force in human affairs.1

“Geertz’s Challenge” is a response to a provocative, taxing, and unsettling question raised with a sense of urgency by the late great American anthropologist Clifford Geertz during the last decade of his life.2 The interrogative I have in mind was so strongly implied as to be nearly visible on the surface of several of his writings (see above) and can be formulated most generally as follows: How is it possible to be a robust cultural pluralist and a dedicated political liberal at the same time? Is it coherent to embrace, justify, or defend ways of life grounded in durable bonds of ethnic, cultural, and religious community while also (a) endorsing individual autonomy, (b) valuing transactions and forms of association premised on freedom of choice, and (c) acting in accordance with the duty to treat all individuals equally with regard to their just claims regardless of their ethnic, cultural, religious, or family backgrounds? Alternatively stated: What are the specific way(s) robust cultural pluralism and dedicated political liberalism might be reconciled, if at all?3

186

richard a. shweder

Geertz posed his query as a philosophical provocation and a public policy challenge; in the daunting face of which this essay is little more than the preparation of some conceptual ground as a prelude to the development of an adequate response. He posed his query in part because he recognized that we live in a tumultuous post–Cold War era, marked by a combustible mixture of neoliberal globalization, expanding markets, the borderless free flow of everything (including the type of labor migration across cultural divides that raises hot button issues about the scope of domestic tolerance for alien beliefs, values, and customs), ethnonational conflicts (for example, in Eastern Europe, in West Asia, and in various regions in Africa), and domestic multicultural anxieties (for example, almost everywhere).4 The world is “growing both more global and more divided, more thoroughly interconnected and more intricately partitioned, at the same time. As the one increases, so does the other,” he wrote;5 and he anticipated that this volatile period in human history, during which the forces of integration (for example, of local economies) and the forces of separation (for example, empowering ethnonational identities and challenging the integrity of multinational states) walk hand in hand, was not likely to be short lived. He also posed his query because he understood that some of the more destructive collisions between “nations”6 caused skeptical questions to be raised that any self-reflective cultural pluralist (who is also a faithful citizen of a modern liberal state) must sooner or later confront: not only questions about the future of cultural pluralism in a liberal cosmopolitan world system but also questions about the future of cosmopolitan political liberalism in a culturally balkanized world.

Robust Cultural Pluralism and Dedicated Political Liberalism in a “Differenced World” Clifford Geertz was himself a robust cultural pluralist. He believed that cultural diversity was inherent in the human condition and that the ecumenical or missionary impulse to value uniformity over variety and to overlook, devalue, subordinate, or even eradicate difference was not a good thing. Based on his reading of history and his case-based knowledge of the current international multicultural scene (for example, in Canada, the former Yugoslavia, Sri Lanka, Nigeria, India, and Indonesia) he viewed it as evident that cultural differences

Geertz’s Challenge

187

derived from real or imagined primordial ties to ancestral groups are ever-present, robust, and resilient, a fact about which he had no global regrets. Indeed, one of his main accomplishments as a writer of ethnographies was to help us understand how it is possible for morally decent and intellectually reasonable members of the divergent cultural lineages in our global human family to live their lives guided by goals, values, and pictures of the world very different from our own.7 In other words, his ethnographies sought to show us how it is possible for normal members of other cultural worlds or “nations” to live their lives piloted by different conceptions of the self, of gender, of morality, of emotions, of religion, of political and legal authority, of property, of kinship, of even different conceptions of time, space, causation, and the good life. His was a version of cultural pluralism in which one seeks, to the extent it is possible (and there are times it is not possible), to understand others as coequal moral subjects (rather than as defective moral subjects or as mere objects); and to do so without assuming that if two nations are moral equals then their goals, values, pictures of the world, and ways of life must be uniform or essentially the same. Nevertheless when the famous anthropologist took the measure of primordial group identities, anxieties, hostilities, and fears in the contemporary world, and the associated political disorder, his assessment of various extant multicultural realties (domestic and global) was not necessarily pretty. His words and judgment on this matter are haunting: “[T]he image of a world full of people so passionately fond of each other’s cultures that they aspire only to celebrate one another does not seem to me a clear and present danger,” he wrote. “[T]he image of one full of people happily apotheosizing their heroes and diabolizing their enemies alas does.” He was mindful, alas, that we live in an age when political and marketplace transactions (including competition for jobs, land, natural resources), both domestic and international, produce fateful (and sometimes destructive) encounters between members of ancestrally distinct groups, resulting in the mutual demonizing of the “other.” “Positioning Muslims in France, Whites in South Africa, Arabs in Israel, or Koreans in Japan are not altogether the same sort of thing,” he noted. “But if political theory is going to be of any relevance at all in the splintered world, it will have to have something cogent to say about how, in the face of a drive towards a destructive integrity, such structures can be brought into being, how they can be sustained, and how they can be made to work.”8 And of

188

richard a. shweder

course we are not talking here just of Muslims in France or Koreans in Japan, but also of Bangladeshis in Saudi Arabia, Gambians in Norway, Francophones, Filipinos, and Inuit in Canada, Guatemalans in Mexico, Thais in Israel, and Mexicans, Samoans, Amish, Haitians, Satmar Hasidim, Palestinians, Cubans, Somalis, Hmong, and many others in the United States, and so on and so forth. Geertz was not only a robust cultural pluralist but also a political liberal, although a nervous one, who was aware that a major cause of the “drive towards a destructive integrity” in the modern world was the ethnonationalist impulse to disaggregate or dismantle multinational states and resolve them into a world of political communities in which nation, people, state, and country—culture and politics—are made to coincide. He describes resistance to ethnonationalism as a “moral imperative.” Making that point, although somewhat elliptically, he writes: “Resisting the coalescence of the dimensions of political community [nation, state, country, people], keeping the very lines of affinity that turn abstract populations into public actors separate and visible, seems suddenly, once again, conceptually useful, morally imperative, and politically realistic.” 9 Not very far from the surface of his writings on this subject is his clear and considered judgment about the worthiness of what I shall later argue is a distinctively liberal American conception of nationality: a conception of a “civil political community” in which all the people who are citizens of the state and are willing to live their lives constrained by a basic set of liberal democratic principles with respect to (what Geertz described as)10 the “law, government and public comportment” are part of the nation, regardless of their ethnic, racial, or religious origins. Later too I will have more to say about this type of state-based conception of nationality (which contrasts sharply with any nation-based conception of the state), and I will clarify both conceptions. Geertz, however, was acutely aware that critics of political liberalism around the world often argue that liberals are prevented precisely because of their commitments (for example, to the liberal ideals of autonomy, equal life chances, and the freedoms of expression, association, and choice) from celebrating (or from even tolerating) cultural differences, especially when those cultural divides or separations are sustained by means of real or imagined primordial ties to ancestral groups. As a robust cultural pluralist and a dedicated political liberal it made him edgy to see such critics argue, as he put it in one brief but effective summary of their views, that political liberals are barred by their own liberal principles “from recognizing the force and durability of ties of religion,

Geertz’s Challenge

189

language, custom, locality, race, and descent in human affairs, or from regarding the entry of such considerations into civic life as other than pathological—primitive, backward, regressive, and irrational.” So he offered up his challenge: can anthropologists, political philosophers, and globalization theorists develop a version of liberalism with both the courage and the capacity to engage itself with (rather than try to homogenize) “a differenced world”? And can they do so with regard to, and respect for, a multicultural world in which at least some of that diversity has its source in the real or imagined primordial ties of individuals to kith and kin and particular ancestral groups, and not in some original autobiographical act of free choice or expressive liberty? The writer died before he was able to fully spell out his own affirmative response to his own questions. Nevertheless, he invited us to rethink the implications of political liberalism, to search for a practical philosophical antidote to the “diabolizing” of others and, thus, to develop a way of thinking about the reality and organization of ethnic, religious, and racial differences in the contemporary world which, even though it might fall short of getting us to actually celebrate diversity, might at the very least support an attitude of cooperative mutual sufferance among culturally distinct groups.

Keeping Cultural and Political Identities Straight: From Nation v. State to Nation (Based)-State v. State (Based)-Nation Even a prelude to an answer to a challenging question benefits from the clarification of terms. This is especially true in an essay concerned to distinguish between nations and states and to then build out of that contrast a second distinction between a nation-state and a state-nation (which, for sake of clarifying the sought-after distinction, I will also refer to as the distinction between a nation [based]-state) and a state [based]-nation). I hope to keep those identities straight and separate here and elsewhere in this essay.

Nation v. State Defined When I speak of nations I use the term “nation” in the premodern sense, to refer to any people or potential in-group or faction, regardless of population size, whose members are networked or tied to each other by a real or imagined

190

richard a. shweder

common ethnic ancestry and shared cultural heritage, whether or not the nation coincides with a territory/country controlled by a sovereign political entity such as a state. I use the term “state” to mean any sovereign governing body that is an instrument for the realization of collective goods with political, legal, and compulsive (police/military) control over a territory as made manifest in (a) the authority of the sovereign governing body to legislate and define the norms of behavior within that territory and regulate transactions (both cooperative and hostile) with other sovereign political entities, (b) the power of the sovereign governing body to enforce those norms and transactions, and (c) the capacity of the sovereign governing body to be recognized by, and to recognize, other sovereign political entities as such. The idea of nation used in this essay is meant to be reminiscent of the seminal concept of a cultural community developed by the German romantic philosopher Johann Herder, and his vision of the world composed of historically grounded communities, each appealing to some local conception of truth, virtue, and beauty and dedicated to divergent social norms that seem justified in the light of those local conceptions.11 The real existence of a primordial group (whose members feel tied to each other in the ways suggested) does not depend on the historical or ethnographic truth of those primordial ties (they can be and often are fictive to some more or less substantial extent); when it comes to the reality of primordial groups, collective memory and the sense of fellow-feeling it promotes trumps true history, and true history may be far less relevant to the formation and analysis of the behavior of primordial groups than one might suppose. Herder’s view, which linked the self-development of individuals to the freedom of primordial groups to flourish and to try to develop their distinctive ways of life, has been cogently summarized by British political philosopher Isaiah Berlin as follows: “For Herder there is a plurality of incommensurable cultures. To belong to a given community, to be connected with its members by indissoluble and impalpable ties of a common language, historical memory, habit, tradition and feeling, is a basic human need no less natural than that for food or drink or security or procreation. One nation can understand and sympathize with the institutions of another only because it knows how much its own mean to itself. Cosmopolitanism is the shedding of all that makes one most human, most oneself.”12 Perhaps that last sentence will seem shocking to some readers, especially

Geertz’s Challenge

191

those who live or idealize a liberal cosmopolitan/individualistic/ nationless way of life. But that in itself is not surprising given that Herder’s conceptualization of cultural community was in large measure an act of intellectual resistance to the European Enlightenment ideal for a modern self with its highly individualistic image of a fully realized human person: as one who has become liberated or emancipated from all traditions, from all revelations or faith-based attachments to groups, from all commitments to received values or pictures of the world other than those that can be worked out by oneself and universally justified or grounded in logic or science. It is that cosmopolitan vision of the liberated individual (who is at home nowhere in particular or feels at home only when detached from all groups and loyal to none) that Johann Herder opposed and viewed as the shedding of all that makes us most human. David Miller, a political philosopher of the left, makes the point this way: “Nations stretch backwards into the past, and indeed in most cases their origins are conveniently lost in the mists of time. In the course of this history various significant events have occurred, and we can identify with the actual people who acted at those moments, reappropriating their deeds as our own. . . . The historical national community is a community of obligation. Because our forebears have toiled and spilt their blood to build and defend the nation, we who are born into it inherit an obligation to continue their work, which we discharge partly towards our contemporaries and partly towards our descendants. The historical community stretches forward into the future too. This then means that when we speak of the nation as an ethical community, we have in mind not merely the kind of community that exists between a group of contemporaries who practice mutual aid among themselves and would dissolve at the point at which that practice ceases: but a community which, because it stretches back and forward across the generations, is not one which the present generation can renounce. Here we begin to see something of the depth of national communities which may not be shared by other more immediate forms of association.”13 Roger Scruton, a political philosopher of the right, makes the point wryly, this way: “Since the Enlightenment, it has been normal for Europeans to think of society as a contract. The novelty of the idea is two-fold: first, it implies that social membership is a free choice. Second, it suggests that all members of society are currently living. Neither of these thoughts is true.” “Care for the dead and care

192

richard a. shweder

for the unborn go hand in hand,” Scruton then avers, strongly suggesting that those who are alive act as though they are part of a historical ethical community (even though in the secular modern world they lack a language for expressing their communal commitments) and avoid “pillage” and “sacrilege” by allowing the dead and the unborn to have a vote on how one lives one’s life today.14 Given those definitions and interpretations of the idea of a nation and the idea of a state, one can readily (and coherently) conceptualize the existence of a nation without a corresponding state (Jews in the Diaspora prior to the formation of the nation-state of Israel, Kurds in the Diaspora today, Tamils living in Sri Lanka, Sunni Muslims living in India, the Amish or the Seminoles living in the United States); indeed, that has been the characteristic state of affairs for nations, most of which have existed within the political framework of some multinational or multicultural state, rather than in the political framework of a nation-state. One can thus also readily (and coherently) conceptualize the existence of states in which the territories controlled by the sovereign governing body are occupied by peoples from many nations. States of that sort I shall refer to as multinational states. Over the course of recorded human history most people most of the time have lived in multinational states, some of the clearest examples of which are empires or imperial states, such as the Roman Empire, the Austro-Hungarian Empire, or the Ottoman Empire. The global breadth and historical depth of the human experience of living in multinational states is impressive. A short list of political formations with multinational characteristics, often with the members of diverse nations or culturally distinct ancestral groups residing in enclaves, cantons, or millets within the territorial borders of the multinational state and under the ultimate (although in practice often quite limited) governing authority of a single (often culturally, ethnically, and religiously and even physically remote) sovereign, includes the following empires: the Akkadian, Ancient Egyptian, Incan, Ethiopian, Athenian, Hellenic, Roman, Byzantine, Aztec, Mayan, Persian, Latin, Mongol, Spanish, Chinese, Mughal, Siam, Holy Roman, Ottoman, and Austro-Hungarian empires; the African empires of Ghana, Benin, Bamana, the Second Mexican, Brazilian, Russian, German, French, and British empires; and also, as I shall suggest later, the currently emerging global multinational state or transnational liberal empire—the “New World Order”—in which the diverse peoples or nations of the world come under the formal regulatory control of a culturally and education-

Geertz’s Challenge

193

ally distant cosmopolitan elite whose power is exercised through various global political, legal, financial, military, moral, and economic organizations, such as the WTO, the World Court, the United Nations, the World Bank, and the IMF. Consider, for example, the following observation about the multinational character of the Ottoman Empire, made by the historian David Fromkin in his account of the demise (around World War I) of that long-standing multinational political arrangement.15 Fromkin writes: “According to the eleventh edition of the Encyclopedia Britannica (–) the Ottoman Empire at the time was inhabited by twenty-two different ‘races’ [read ‘nations’], yet no such thing as an Ottoman nation has ever been created.” He goes on to say: “Within the Empire (as distinct from the steppes to its east) even those who spoke Turkish were often of non-Turkish origin. Sir Mark Sykes, a British member of parliament who had traveled extensively in Asia, began one of his books by asking: ‘How many people realize, when they speak of Turkey and the Turks, that there is no such place and no such people . . . ?’ The ancient homeland of the Turkish peoples, Turkestan, was in the possession of Russia and China. More than half the Turkish peoples of Asia lived either there or elsewhere outside the Ottoman Empire, so that the Czar [the sovereign of a different multinational state—the Russian Empire] could lay greater claim to speak for the ethnic Turks than could the Sultan.” And, as Fromkin notes, the cities of the Ottoman Empire (Baghdad, Cairo, Algiers, and Damascus) were full of people of mixed national background “spanning the vast range of ancient peoples and cultures that extended from the Atlantic Ocean to the Persian Gulf.” Even to mention the Ottoman Empire is, of course, to run the risk that the reader will either immediately bring to mind the image of aggressive marauding bands of medieval warriors whose notion of economic success was to invade new territories for the sake of capturing wealth and slaves—a style of domination associated with several European powers as well (for example Spain and Portugal) that is neither peaceful, orderly, nor just. Or else one runs the risk the reader will bring to mind images from the final years of a dissolving multinational state in the early twentieth century—images of horrifying ethnic conflicts between particular pairs of groups (the Turks and Greeks, the Turks and the Armenians, and so forth) that were largely motivated by modern aspirations and a political discourse aimed at national self-determination and the formation of autonomous nation-states.

194

richard a. shweder

So some caveats and qualifications are in order. Conquest is something the Ottoman Turks did very well for a few hundred years starting in the thirteenth century, before their rate of expansion was slowed, offset, and then reversed by another empire at the gates of Vienna in . Notably, however, the Ottoman Empire managed to remain viable as a diverse and multinational state for an additional  years, until , when its domestic realm was divided and its reach dismembered by modern ethnonational succession movements (Serbian, Bulgarian, Greek, Armenian, Saudi) and as a result of the political settlements that followed its military defeat in World War I. Today there are historians who look back on that  political settlement with regret (“the peace to end all peace” as Fromkin refers to it in his brilliant book by that title). Here I am simply abstracting out a few features of the Ottoman multinational political order in the eighteenth and nineteenth centuries. It might be a way of imagining some of the possible contours of a future, relatively stable global multinational world. And indeed, the Ottoman Empire, despite its many foibles and failings, and ultimate dissolution, had managed for an impressively long time to make space (and had figured out a way, through decentralized and indirect rule, to maintain some semblance of peaceful coexistence) for the many diverse peoples, religions, and ethnic groups (“nations”) incorporated within its expansive territory. There are other risks to using the domestic Ottoman case as a model for thinking about a future international or transnational society. If the reader hasn’t already recoiled at the mention of the Ottoman as a multinational state because of an association with military conquest, an alternative feeling of wariness might arise from images of court intrigue, fratricidal conflicts, corruption, or even the loss of economic and legal independence (granting extraterritorial jurisdiction—the so-called capitulations—to foreign powers, for example). In the nineteenth century the Ottoman Empire ran up a huge national debt (perhaps not unlike the United States today) and became more and more dependent on foreign capital and loans to keep themselves afloat (also not unlike the United States today). Needless to say, none of those are the aspects of Ottoman domestic society that I have in mind when I mention the multinational Ottoman state in the context of imagining possible models for global society today. In making these remarks I am not trying to be nostalgic about the Ottomans so much as to draw a lesson or two from their approach to the challenges of diversity (of peoples). Those challenges are not unlike those we face today.

Geertz’s Challenge

195

There are many notable features of multinational states. In the context of a discussion of robust cultural pluralism one particular feature deserves mention: in a genuine multinational state there is often no popular consensus about how sovereign state power should specifically be exercised, precisely because the state consists of diverse peoples (for example, those twenty-two “races”), who are diverse in the sense that they live their lives in somewhat different ways, according sacred or customary authority to different social norms, and guided by somewhat different goals, values, and pictures of the world. In the Ottoman Empire, at least in the years prior to the modern emergence of strong ethnonationalist movements, those diverse nations lived their lives for the most part separated from each other in a state of mutual coexistence and with an attitude of mutual sufferance, and without much interference from the central government (except for the direct or often indirect collection of taxes and the maintenance of existing physical boundaries between the nations). In practice the everyday governing power of the sovereign was limited, leaving plenty of space for diverse peoples pretty much to do as they wanted with regard to their own local customs, rituals, and beliefs. As the political and moral philosopher Michael Walzer has aptly remarked, therein inviting us to imagine the Ottoman governing elite incorporating Joseph Smith and the Mormon community into their multinational state: “The Ottoman Empire, for example, would have had no problems with Mormon polygamy—and wouldn’t have had problems whatever its own standard family arrangements.”16 Indeed, there probably was no “standard family arrangement” in the Ottoman Empire, given that the empire was not a single nation at all. In other words, at least during some substantial part of its seven-hundred-year existence, the Ottoman Empire was a heyday for robust cultural pluralism. Walzer also discusses the Ottoman case and the institutional structures that make for de facto toleration between nations in multinational empires in a brilliant schematic chapter called “Five Regimes of Toleration” (Multicultural Empires, International Society, Consociations, Nation-States, and Immigrant Societies) in his book On Toleration.17 The distinction drawn and introduced below between nation (based)-states and state (based)-nations is built on many of the same features discussed by Walzer in his treatment of some of the contrasts between what he calls “nation-states” and “immigrant societies.” Finally, to round out this first part of this definitional exercise one can imag-

196

richard a. shweder

ine two other logical possibilities: () a state without any nation (the nation-less state) and () a nation with many states (the multistate nation) (although the historical viability of either of those forms of political association may be arguable). A state without a nation would by definition be a sovereign political body with legislative, regulative, and enforcement powers over a society of individuals who lacked ancestral ties and autobiographical attachments to any primary groups (ethnic, racial, religious, linguistic, or regional) and had absolutely no cultural heritage or sense of primordial communal loyalty or identity. The individual citizens of such a nationless state (which might in principle be global in its political power and regulatory reach) would live and comprehend their lives and develop their beliefs, values, and normative commitments free of any tradition and all traditions, and exclusively within the terms legislated and enforced by the state, which depending on the nature of the state, might or might not be in liberal terms. Perhaps such nationless citizens, an undifferentiated mass of strangers whose sense of self had no reference to primordial bonds of any sort, might speak Esperanto and be raised from birth by the state, detached from all bonds to kith and kin, and with no sense of tradition, accumulated social capital, or ancestry. As far as I know no example of a nationless state, populated entirely by individuals who have no historical or contemporary sense of themselves or fellow feeling for other members of their historically shaped kind, has ever existed. As we shall see (below) certain theoretical varieties of secular cosmopolitan individualism (conceptualizing a world or some region of the world—Europe, for example—as a state without nations populated by deracinated individuals who are uniformly governed by means of some transnational rule of law) invite us to push our imagination (it would be Herder’s nightmare) in that extreme anticommunitarian civic republican direction. In contrast, there are real instances of the multistate nation (for example, the states of East Pakistan and West Pakistan, if one views the Sunni Muslims of British Imperial India as a single nation; or the nationally akin but politically distinct states of East Germany and West Germany). If one defines the boundaries of the nation broadly enough (for example, if Scandinavia is a nation), then there are many instances of the multistate nation. The Scandinavian nation, for example (if there is such a nation), manifests its historical and cultural heritage and way of life by means of several states (Sweden, Denmark, and Norway).

Geertz’s Challenge

197

And if whole “civilizations” (for example, Western Christendom, the Muslim World, sub-Saharan Africa) are ever really and credibly thought of as “nations,” as Samuel Huntington has proposed,18 then again there will be many cases of the multistate nation. Nevertheless, in such cases, it seems likely that over time the relevant and operative national identity will lead either to a unification of the multistates (as with the case of the unification of the two German states, which is something that has not happened within Western Christendom, subSaharan Africa, or the Muslim World, perhaps because national identities do not attach themselves to whole civilizations, as nominally defined by history textbooks or studies of cultural diffusion); or alternatively will lead to the political division of such postulated but merely nominal national identities (as in the case of South Asian Sunni Muslims, where a Bengali language based and Northeast coast of India regional Muslim national identity led to the formation of the independent state of Bangladesh and separation from Pakistan). The case of Scandinavians is also instructive, where Danes, Swedes, and Norwegians think of themselves as three nations not one, and do not seem inclined to unify their states or their languages, even as they abstractly recognize a broad shared cultural kinship that in principle differentiates all three of them from the Finns, the Dutch, the Flemish, the Russians, and the Germans.

Nation (Based)-States v. State (Based)-Nations Defined Having distinguished the idea of a nation from the idea of a state (and briefly acknowledged the historical pervasiveness of multinational states and the arguably unstable existence of multistate nations), it becomes possible to define and identify two other forms of political community—the nation-state (henceforth the nation [based]-state) and the state-nation (henceforth the state [based]-nation), both of which are of great significance in the modern world and may well be modern creations. I use the phrase “nation (based)-state” to denote mononational states—that is to say, states that originate out of a prior national identity and use their legislative authority and judicial and police/military powers to promote the beliefs, values, and social practices associated with that national identity; and where the territory controlled by the sovereign political entity is governed as though it were a special preserve, sanctuary, or homeland for members of some single nation (Denmark for the Danes, Bulgaria for the Bul-

198

richard a. shweder

gars, Armenia for the Armenians, Turkey for the Turks, Kurdistan for the Kurds, Palestine for the Palestinians, Israel for the Jews, a sovereign Navaho reservation for the Navahos). In such cases political citizenship tends to be associated with a particular national identity, defined Herder-like “by a shared heritage, which usually includes a common language, a common faith and a common ethnic ancestry,” as the intellectual historian Jerry Z. Muller has put the matter in his discussion of the power and emergence of ethnonationalism as a peculiarly modern force.19 Muller makes the telling historical point: “Today, people tend to take the nation-state for granted as the natural form of political association and regard empires as anomalies. But over the broad sweep of recorded history, the opposite is closer to the truth. Most peoples at most times have lived in empires [multinational states], with the nation-state the exception rather than the rule.” In the light of Muller’s historical observation it is tempting to imagine that the future shape of the New World Order might amount to the return of empire on a global scale, albeit a liberal empire that accommodates itself to the reality of robust cultural pluralism and endorses the Herder-like principle that the selfdevelopment of individuals and the liberty of peoples to flourish and promote their distinctive ways of life go hand in hand. Much more will be said later in the essay about this augury. In any case, whatever the facts might be about the scope of its distribution and durability over time and territory, the modern nation (based)-state, as I will use the phrase, is, by definition, mononational in its conception of itself. It is crucial to emphasize that this does not necessarily imply that the actual populations of nation (based)-states are in fact perfectly homogeneous with respect to primordial characteristics such as ethnicity, race, religion, language, or cultural heritage. Michael Walzer makes the relevant point clearly when he writes: “Homogeneity is rare, if not nonexistent, in the world today. [To call a state a nation-state] . . . means only that a single dominant group organizes the common life in a way that reflects its own history and culture, and, if things go as intended, carries the history forward and sustains the culture. It is these intentions that determine the character of public education, the symbols and ceremonies of public life, the state calendar and the holidays it enjoins. Among histories and cultures, the nation-state is not neutral; its political apparatus is an engine for national reproduction.”20

Geertz’s Challenge

199

It is just as crucial to emphasize that this mononational concept of the state is the ideal or object of desire for so-called ethnonationalistic movements, whose overriding impulse is to form a political community based on a primordial sense of fellow feeling in which nation, state, and territory coincide. In such instances the state is the instrument of the nation and has as one of its main purposes the furthering of the development (moral, spiritual, social, and economic) of a “people.” This was the case in the original formation of nation (based)-states such as Denmark, Italy, Greece, France, Croatia, or Israel—each was created when the members of some particular nation (real or imagined) not only conceptualized themselves as an in-group or faction (based on common descent, religion, culture, ethnicity, race, or language) but also sought sovereignty and independence from the governing body of some preexisting multinational state. There are many nations throughout the world today living without states of their own, from Francophiles in Canada to Kurds in Iraq or Turkey to Albanian Muslims in Serbia to Catalans and Basques in Spain to Palestinians on the West Bank to the Flemish in Belgium to various Native American Indian nations in the United States and Canada, whose members are motivated by an ethnonational impulse and its nation-state ideal. In each instance members of these nations seek to establish a political community ultimately grounded on a personal trust and social bond promoting sense of fellow feeling for members of some real or imagined primordial self-defining “kind.” Indeed, as noted earlier, it has not gone unnoticed that the rise of what is sometimes called “the modern state system” is largely the story of the demise of multinational states or empires. The ascendancy of the modern nation (based)-state is a complex (and often violent) story about the separation (or depending on where you stand the “liberation” or “uplifting”) of nations or peoples by means of migration, succession, deportation, civil war, genocide, or the incorporation of smaller nations and peoples into some relatively larger and homogenizing national “mainstream” by means of missionary efforts and forced or voluntary conversion, cooptation, or assimilation.21 The latter processes—conversion, cooptation, and assimilation—are typically motivated by the personal desire of members of minority nations to acquire the mainstream cultural capital (associated with the dominant national group) necessary for material success, upward mobility, and social prestige in the context of some

200

richard a. shweder

particular nation (based)-state. Overall, and in one way or another, whether voluntary or coerced, whether accomplished peacefully or not, a process that in its effects looks very much like cultural customs control and “ethnic cleansing” has gone hand in hand with the formation of the modern nation-state. As the old and dismal observation goes, the modern nation-state is “born in sin.” Jerry Muller argues that ethnonationalism (the impulse to form nation [based]-states) is not only a deep feature of European modernity but is a concomitant of the spread of modernity on a global scale.22 With regard to Europe per se he even suggests that the forty years of European stability after World War II and prior to the end of the Cold War was due in some measure to the success of various ethnonational movements. It was a peace forged between nation (based)-states and worked out over hundreds of years, and at a very great price, by means of all the processes noted above—of separation, civil conflict, and war (including World War II), and forced and voluntary conversion or assimilation. It was a peace that resulted from rewriting territorial borders and redistributing or relocating the populations of different nations so as to create temporarily stable political boundaries between nation (based)-states. With regard to the last hundred or so years Muller observes that “a survey would show that whereas in  there were many states in Europe without a single overwhelming dominant nationality, by  there were only two, and one of those, Belgium, was close to breaking up. Aside from Switzerland, in other words—where the domestic ethnic balance of power is protected by strict citizenship laws—in Europe the ‘separatist project’ has not so much vanished as triumphed.”23

Keeping Cultural and Political Identities Separate: The American Exception as a Multinational State (Based)-Nation and Not an Anglo-Protestant Nation (Based)-State Muller avers that the United States of America may be an exception to the rule (so far) and that Americans are in possession of an alternative conception of nationality, one apparently more in keeping with the spirit of a multinational state, although one that is not governed like an empire. It is a conception of the sort I believe Clifford Geertz had in mind when he challenged political philosophers, anthropologists, and globalization theorists to creatively reconcile robust

Geertz’s Challenge 201

cultural pluralism and dedicated political liberalism and have the courage to apply their political theories globally to our “differenced world.” The American exception is historically unusual indeed, despite the obvious and consequential failures of the original founding political community with respect to the many (indigenous) Indian and (imported) African nations of North America;24 and it invites the postulation of a form of political association that is a state (based)-nation rather than a nation (based)-state. As noted earlier a nation (based)-state (such as Israel or Serbia or perhaps one day Chechnya, Quebec, Kurdistan, or Pashtunistan) is a readily identifiable and previously existing nation (a group whose members feel bound to each other through real and imagined primary ancestral ties and a shared cultural heritage) that manifests itself (expresses and perpetuates its particular way of life) in the form and through the powers of a state. In the case of a state (based)-nation the opposite is more nearly true. A state (based)-nation is a political community where the state gives birth to a nation and provides the design for a new communal identity. Thus, in the case of the state (based)-nation, national identity (and associated feelings of common ancestry, shared heritage, and even fellow feeling) is largely a matter of devotion to the basic constitutional principles that made possible the formation of the state in the first place or originally. In political communities of that type (state [based]-nations), the political community becomes an additional or supplemental source of national identity; and thus the founding political moments, the founding political “fathers,” and the founding political contract or constitution become highly salient symbols; and the celebration and reiteration of one’s commitment to the state and especially its basic constitutive political principles becomes one of the central messages of public communal ritual (for example, the never-ending election season in the United States). In political communities of that type (state [based]-nations), the most widely shared national heritage that is relevant to personal identity formation (for example, to American national identity) is defined by the constitutional principles underlying the founding of the political community, and the only common ancestry that really matters (for example, when it comes to being part of the American nation) is not ethnic, racial, or religious ancestry but rather a shared sense of fictive or adoptive kinship with the heroic or even mythic progenitors and protectors of the values and principles constitutive of the state.

202

richard a. shweder

The recent election of U.S. president Barack Hussein Obama (whose broad appeal to American voters was not unrelated to the fact that from the point of view of almost every primordial ancestral characteristic—race, religion, ethnicity—he is the personification of a hybrid identity and of complex mixed roots) is not only the apotheosis of this state (based)-nation conception of American national identity, but also a reminder to the world (and to many American citizens as well) that America is not an (Anglo-Protestant) nation (based)-state, despite the ethnic, religious, and racial ancestry of its founders. Indeed, the concept of the state (based)-nation helps us understand the only sensible sense in which Irish, Italian, and Mexican Catholics, Eastern European Jews, South Asian Hindus, Bosnian Muslims, and a politician who is the son of a black Muslim man from the Luo people of Western Kenya can truthfully be said to descend from and embrace the Pilgrims, or the white Protestant “founding fathers” who wrote the charter for the American state, as their own ancestors. This is not to deny the existence and persistence of an alternative conception, voicing and defending the view that the United States of America is and ought to be an Anglo-Protestant nation (based)-state. That conception interprets the American form of political governance as exceptional because it is thought to be imbued with the unique or at least distinctive features of one or more of the primordial Anglo-Protestant founding communities and their distinctive cultural heritages (although, as David Fischer has argued in his monumental book Albion’s Seed, those early Anglo-Protestant communities were strikingly different from each other in their beliefs, values, and social practices). According to that ethnonational conception the well-being of the American state is dependent upon retention of an Anglo-Protestant majority in the population. That interpretation is sometimes linked to the assumption that the relevant Anglo-Protestant cultural heritage cannot be easily exported to other peoples or other lands.25 That claim about the reason for the supposed nonexportability of the U.S. form of national identity (binding it to the cultural particularity of Anglo-Protestant primordial communities) should not be confused with the more general debate about whether the state-based shape of American national identity should be taken as a global model of success for all political communities. It is quite possible that the American model does not travel well, but for historical reasons other than its cultural origins among Anglo-Protestant settlers. The

Geertz’s Challenge 203

general question of whether there is one ideal form of the state and whether it will flower if transplanted in diverse climes was famously raised and answered in the negative by Montesquieu in the eighteenth century and has been debated ever since, although as the political philosopher Michael Walzer has noted in his  Tanner Lecture on Human Values, the question of whether one particular nation (for example, the ancient Jews ) can be, or should be, “a light” unto all nations has a very long history.26 In recent years, especially in connection with the war in Iraq, U.S. foreign policy has been influenced by a positive answer to that general question. For example, President George W. Bush speaking on January , , with evangelical zeal on the occasion of his first State of the Union Address to Congress and the Nation after the terrorist attacks of September , , delivered one of his earliest justifications for the project of global nation-building and the spread of the ideal form of the state as a moral crusade. He spoke with intimations of the preemptive use of American military and economic force to promote universal human progress by transplanting one particular form of governance widely, on the assumption that the ideal form of the state is transferable to all cultural groups or nations: “America will lead by defending liberty and justice because they are right and true and unchanging for all people everywhere,” President Bush declared. “No nation owns these aspirations and no nation is exempt from them. We have no intention of imposing our culture, but America will always stand firm for the non-negotiable demands of human dignity, the rule of law, limits on the power of the state, respect for women, private property, free speech, equal justice and religious tolerance.” By way of contrast, when understood as a state (based)-nation rather than a nation (based)- state, U.S. national identity is essentially defined by an attachment to the liberal democratic constitutional principles underlying the founding of its sovereign governing body, and not by ethnic, racial, or religious ancestry. And, quite ironically, and remarkably, it is precisely because the American nation per se is state-based in origin and identity and (is thus) defined by a shared faith in those constitutional principles, the United States ends up being a rather special type of multinational state: one in which Americans are able to retain a sense of national American identity as a political community even as (with varying degrees of conviction and comfort) they routinely employ those liberal democratic principles (for example, freedom of association, religion,

204

richard a. shweder

and speech) to make private, factional, separatist, or “splintering” choices in which they selectively express solidarity and affiliate with members of their own particular ethnic, racial, religious, or cultural group (for example, in marriage, residential location, occupational choice, or social life), and thereby perpetuate the wide range of national heritages distinctive of the rather diverse (real or imagined) primordial groups residing within the borders of the land. According to this state-based conception of American national identity, the territory under the sovereign political authority of the U.S. government is not the national homeland of any particular ethnic, racial, religious, or cultural group (including Anglo-Protestants), but is rather a place where the members of each and every particular ethnic, religious, racial, and cultural group (including AngloProtestants) is at liberty and have the space to feel at home. The concept of a state (based)-nation described above is similar to the notion of “constitutional patriotism” as discussed by some political theorists, notably by Jan-Werner Muller.27 The concept is often applied to “Europe” (the EU) as an evolving political community, although it remains to be seen whether the European state (based)-national identity formation project and the attempt to weaken or downplay nation (based)-state identities will ultimately be successful. Unlike in the case of the American exception, where the historical origin of the state went hand in hand with the formation of a state (based)-national identity, there are significant ethnonational voices within the various already standing and long ago established nation (based)-states of Europe (for example, in Ireland, Denmark, or Norway) who continue to have serious doubts about the desirability of the EU constitutional patriotism project. The issue of Turkish entry may further heighten ethnonational resistance to the extension of fellowfeeling at the inclusive transnational level of European national identity. Those critical of the European constitutional patriotism project might well disparage it as a New World American transplant of a state (based)-national identity into the Old World soil of nation (based)-states. On the other hand, the experiment is didactic and should be useful in learning how best to forge and make viable a state (based)-national identity that is liberal and pluralistic at the same time and does not provoke a rebellion among diverse nation-based groups who are concerned to retain control over and remain at home in their distinctive traditions and with their language and local way of life. With regard to New World soil, in effect, the political liberalism that has

Geertz’s Challenge 205

been the blueprint for American state (based)-nationalism makes it possible for the United States to have a unifying national identity and, at the same time, to remain a pluralistic multinational state in its own historical memory and collective self-conception (“a land of immigrants” or, somewhat more metaphorically, “a world-federation in miniature”).28 The blueprint contains instructions that make it possible for every American (including Anglo Protestant-Americans) to be a hyphenated American, in a way that is not really possible in a nation(based)-state such as Denmark or Norway or Saudi Arabia; in Norway, for example, the dominant indigenous white Lutheran population thinks of itself as Norwegian pure and simple, and not in hyphenated terms as one group of Norwegians among many. This plural conception of hyphenated identities for members of all state-based national groups was probably missing even in the Ottoman Empire, where the cultural pluralism was robust but nothing like a widely shared state (based)-national Ottoman identity and sense of a common political community ever formed (except perhaps among the sultan and the ruling elite, who were themselves ethnically diverse, and socially diverse—many were former slaves—in their origins).29 Indeed, it is precisely because American national identity permits everyone the expressive liberty (in both private and public spaces) to be a hyphenated American, and hence permits every American to belong to more than just the American state (based)-nation, that what it means to be an American can be a unifying identity and has patriotic appeal.30 The following historical example from a note of appreciation, dated September , , sent by Thomas Jefferson to Rabbi Jacob de la Motta, is illustrative of this exceptional (and somewhat ironic) way of thinking about a unifying national identity, and its appeal. Jefferson was in receipt of a copy of the rabbi’s sermon, delivered on the occasion of the consecration of the first synagogue in Savannah, Georgia. In his response he wrote, “Thomas Jefferson returns his thanks to Dr. de la Motta for the eloquent discourses on the Consecration of the Synagogue of Savannah which he has been so kind as to send him. It excites in him the gratifying reflection that his own country has been the first to prove to the world two truths, the most salutary to human society, that man can govern himself, and that religious freedom is the most effectual anodyne against religious dissension: the maxim of civil government being reversed in that of religion, where its true form is ‘divided we stand, united we fall.’”31 More recently, Supreme Court Justice William O. Douglas, a political liberal,

206

richard a. shweder

described the core defining feature of American national identity as follows: “The melting pot[32] is not designed to homogenize people, making them uniform in consistency. The melting pot as I understand it is a figure of speech that depicts the wide diversities tolerated by the First Amendment under one flag.”33 That depiction of a distinctive type of national identity associated with the American experience (and symbolized by its flag) is one with regard to which Clifford Geertz surely would have felt considerable sympathy, although it is not out of the question (here I am just speculating) that Geertz might have wondered (as I do) about alternative interpretations of the actual historical use of “the melting pot” as a figure of speech for American national identity—for example, as a “meltdown” of diverse peoples (a metaphor for cultural assimilation that might be quite suitable as an expression of national identity in a nation [based]-state such as Denmark) rather than as a large pot with plenty of space for the distinctive heritages of many primordial groups (a metaphor for cultural and religious freedom that, as Justice Douglas suggests, is suitable as an expression of national identity in a state [based]-nation such as the United States).

Predicting the Shape of the New World Order34 Contemporary prophecies about the future of the New World Order are usually predictions about the consequences of a process called “globalization” for human betterment and for the future of the various nations, nation (based)states and multinational states (including empires) of the world. Typically, in discussions of globalization, the idea of human betterment is equated (somewhat narrowly in the spirit of economics) with global increases in aggregate human wealth and with the worldwide establishment of wealth-producing efficiencies in the division of expertise and labor across and within nations and states.35 Among globalization theorists questions about the consequences of globalization for the future of the existing nations of the world are usually about their capacity to reproduce themselves and perpetuate their cultural heritage and way of life. Questions about the future of the existing states of the world are usually about the manner and degree to which such states will, or should be allowed to, retain their sovereignty and govern their citizens free of external interference or international regulation. The process itself, called globalization, is an accordion-like concept. There

Geertz’s Challenge 207

are both narrow and expansive conceptions of the character of globalization. The predicted consequences of the process for nations and states, and hence for the shape of the New World Order, vary accordingly.

Globalization in the New World Order The narrow definition of globalization refers to the linking of the world’s local economies (for example, free trade and market exchange bringing together members of distinct nations and states) with the aim of promoting overall human betterment. This narrow “free trade and exchange” conception of globalization is quite compatible with the liberty of peoples to carry forward and socially reproduce their distinctive way of life, and to do so by means of primordial bonds of community based on ancestry, ethnicity, race, religion, or culture. Despite Voltaire’s ironic Enlightenment contempt for religion and cultural tradition, one of his caricatures might be read to suggest that the basic pursuit of wealth in a free marketplace (in his example, in the London Exchange in the early days of modern capitalism) actually promotes attitudes of harmonious sufferance between ideologically antagonistic and self-perpetuating Herder-like cultural communities (or nations). To wit, Voltaire wrote: “Although the Episcopalian and the Presbyterian are the two main sects in Great Britain, all the others are welcome and live quite well together, while most of their preachers detest each other with about as much cordiality as a Jansenist damns a Jesuit. Come into the London Exchange, a place more respectable than many a court. You will see assembled representatives of every nation for the benefit of mankind. Here the Jew, the Mohametan and the Christian deal with one another as if they were of the same religion, and reserve the name “infidel” for those who go bankrupt. Here the Presbyterian puts his trust in the Anabaptist, and the Anglican accepts the Quaker’s promissory note. Upon leaving these peaceful and free assemblies, one goes to the synagogue, the other for a drink; yet another goes to have himself baptized in a large tub in the name of the Father through the Son to the Holy Ghost; another has his son’s foreskin cut off, and over the infant he has muttered some Hebrew words that he doesn’t understand at all: Some others go to their church to await divine inspiration with their hat on their head. And all are content.”36 In other words, limited free trade at the borders or frontiers where mem-

208

richard a. shweder

bers of different groups make contact with each other and mutually benefit from the exchange because of each other’s comparative advantages (the logic of comparative advantage is the core logic of narrow definitions of globalization) is not incompatible with a stable equilibrium of ideological differences among “primordial” groups. Hidden, however, within the apparently narrow definition of globalization is a more expansive idea of the various ways that nations and states ought to transform their economies, polities, ideologies, and loyalties if they want to be recognized or accepted as players in an aggregate wealth-producing global capitalist economy. Thus, while the narrow idea of globalization begins with open entry to the market, the elimination of tariffs, and the free trade of material goods across borders, it readily expands also to include the free flow of capital and labor. This more expansive conception of globalization goes beyond contact at the borders (or in the commodities exchange) and calls for a much deeper penetration into the social and cultural hearts of the various free trading “primordial” groups. Indeed, guided by the aim of expanding free markets and keeping them efficient in their wealth-production capacity a far-flung economic, legal, and political order gets imagined by expansive globalization theorists. It consists of international legislative and regulatory organizations (the IMF, the World Bank, the WTO, perhaps a World Court, or even a World Parliament with a global constitution), corporations with a global reach managed and staffed by citizens from diverse nations and states, and states whose borders have been opened to capital, goods, and labor from all over the world. According to this normative vision of a “neoliberal” or “borderless” capitalism, goods, capital, and labor ought to be freely marketed on a worldwide scale for the sake of global prosperity. In the minds of those who adopt such a perspective, nation (based)states, ancestral homelands, and bonds of solidarity based on religion, ethnicity, race, language, or shared cultural heritage are potential barriers to the globalization project, especially if they result in restrictions on residence, affiliation, and trade, or lead to economically costly preferences for in-group over out-group members (for example, buying the same product, or even an inferior version of the product, at a higher price, if it is locally produced or produced by in-group members); which is one reason liberal globalization theorists sometimes disparage ethnonationalism as separatist, illiberal, and retrograde.

Geertz’s Challenge 209

There is an even more expansive idea of globalization. Here the concept is extended to reach beyond just the removal of all barriers to trade, foreign investment, and the opening of borders to migrant labor. The idea gets linked to demands for “structural adjustments” of lagging economies and even for moral adjustments in the content of lagging cultural heritages as well. The structural adjustments usually begin with the firing of an overemployed civil service and the reorganization of economic life to reduce imports and increase exports (ironically, in many countries this means promoting cultural tourism, and putting the local cultural heritage on commercial display, since there is little else to export), all with the aim of accumulating foreign exchange that can then be invested in the pursuit of further wealth. This is ironic, of course, because the local cultural traditions that are put on display for the sake of attracting tourists and accumulating foreign financial capital are the very cultural traditions that are often viewed as backward, superstitious, or primitive by Westernized elites in the less wealthy countries of the world; yet from the point of view of identifying local traditions that enhance the aggregate wealth-production project they are indeed a form of “cultural capital,” even if their value is dependent on the curiosity of, and desire for travel, adventure, and exotic experiences by, visitors from the most wealthy countries of the world. There may also be structural adjustments in the direction of Western ways of running banks, enforcing contracts, paying off debts, and settling disputes. Transparency and the elimination of corruption are key objectives in this structural adjustment process. Ultimately the ideal is to model your economy and your political community (including your legal institutions) following the example of the richest countries in the Western world. Such adjustments may be entered into voluntarily so to encourage foreign investment, or they may be mandated (for example, by the World Bank) as necessary conditions for securing low-interest loans. In its broadest form globalization thus ceases to be just an economic concept with political and legal entanglements and consequences and comes to imply the free flow of everything, including cultural heritage. Typically, however, the flows turn out to be asymmetrical (because when it comes to relations between nations and states, power, prestige and wealth are asymmetrical); and, in practice and in fact, the international or global system calls for greater linguistic, social, cultural, aesthetic, and intellectual adjustments for some players than for

210

richard a. shweder

others (so that, for example, if English becomes the language of global capitalism the adjustments are far easier for the cosmopolitan elites of former British colonies, including the citizens of the United States and Canada). When fully expanded the idea of globalization becomes a somewhat immodest hypothesis about human nature and an imperial call for “enlightened” moral interventions into other ways of life in order to free them of their supposedly barbaric, superstitious, or irrational (that is, economically counterproductive) cultural heritages. This unabashed and fully expanded globalization hypothesis makes three related claims: () that for the sake of human betterment (that is, aggregate wealth accumulation) Westernlike aspirations, tastes, and ideas about what is true, good, beautiful, and efficient are objectively the best aspirations, tastes, and ideas in the world; () that Westernlike aspirations, tastes, and ideas will be fired up or freed up by economic globalization and the pursuit of wealth; and () that the world will/already has or ought to become Westernized so as to become maximally rich. Westernlike aspirations include the desire for liberal democracy, free enterprise, private property, autonomy, individualism, equality, and the protection of natural or universal rights (the contemporary human rights movement is in many ways an extension of an expansive globalization movement). Westernlike ideas include the particular conceptions of gender identity, sexuality, a “normal” body, work, reproductive health, and family life embraced by liberal men and women in the United States today. They include a heavy dose of the “Protestant Ethic” (now viewed as a universal moral ideal in the age of globalization), which suggests that more is better and that you are not really good if you are not really rich. Westernlike ideas also include the fundamentally liberal notion that all social distinctions based on primordial collective identities (ethnicity, religion, gender) are invidious. They include as well the notion that individuals should transcend their tradition-bound commitments and experience the quality of their lives solely in secular and ecumenical terms—for example, as measured by health, wealth, or years of life. Westernlike tastes include a preference for CNN, VISA cards, the Internet, iphones, and, of course, English as the language of global capitalism. That expansive conception of globalization thus imagines a very deep penetration into the social, legal, and cultural corpus of any aggregate human wealth-producing nation playing in the globally integrated economic game.

Geertz’s Challenge 211

Here one once again comes face to face with Geertz’s challenge. Is aggregate human wealth production compatible with the preservation of primordial communities and the continuation of their ways of life? Can the processes of economic integration and cultural division be reconciled, and if so how? What shape will the New World Order assume? Here we move into the realm of political and cultural prophesy.

Prophecy One: The Expansive View: Globalizing the Western Civilization Ideal November , , is the day the Berlin Wall came tumbling down and the Cold War balance of power shifted dramatically in favor of the world’s leading example of a multinational state (based)-nation, the United States. If you had kept your ear to the ground in those heady days you would have repeatedly heard one particular kind of prophecy about the shape of the New World Order that was expected to emerge to replace the old tripartite “First World” (capitalist world)/“Second World” (communist world)/“Third World” (underdeveloped world) classification of nations and states. It was prophecy premised on an expansive view of globalization. The prediction went like this: “What we may be witnessing is not just the end of the Cold War, or the passing of a particular period of post-war history, but the end of history as such: that is, the end point of mankind’s ideological evolution and the universalization of Western liberal democracy as the final form of human government.”37 That was perhaps the most common augury about the New World Order during the s, the “Washington consensus,” and it remains a very popular expectation today, even as current world tensions between “West” and “East” and between various liberal democratic states and more autocratic or theocratic states have led a political realist such as Robert Kagan to title his recent book The Return of History and the End of Dreams.38 For many prognosticators, especially those who were either triumphant Americans or foreign admirers of the United States, that type of “the West is best and is going to take over the world” augury was really a thinly veiled expression of their assumption that the American way of life is best and should, and will, be universalized. The notion that we had possibly reached “an end point to mankind’s ideological evolution” expressed their expectation of a global con-

212

richard a. shweder

vergence of beliefs, values, and social practices in the direction of the American standard. And that expectation condensed and articulated a view dating to at least such eighteenth-century Enlightenment figures as Voltaire and Condorcet that the history of the world marches in the direction of an ideal universal civilization; and that at any moment one nation-state (perhaps England in the nineteenth century), and then another (perhaps America in the second half of the twentieth century), comes closest to realizing that progressive goal (“end”) of history.39 In its most triumphal form the prediction amounted to the claim that American civilization is the greatest flowering or most fully realized expression of the only true global civilization; and that American cultural designs for social, political, legal, economic, and family life (and for gender equality and the raising and education of children as citizens in a liberal polity) are so superior that they will be recognized as such and will diffuse over the entire globe. In some (slightly less conclusive) versions of the triumphal forecast the global diffusion of the American way of life gets pictured as a transitional or penultimate stage in the development of an advanced global political community uniting a world of liberated individuals (liberated from all primordial bonds, constraints, and attachments) under a sovereign global successor regime for the enforcement of universal human rights that will then truly signal the end of history and the apotheosis of the Western Enlightenment. The augury thus gives expression to a long-standing imperial liberal ideal: the dream of cosmopolitan citizenship without parochial nation-based loyalties in a world governed by universal or uniform laws, norms, and institutions enforced by a sovereign nationless political entity. In a sense this is the American state (based)-nation conception of national identity projected onto a global scale, but without the hyphens connecting a person to other more primordial identities. It is an ecumenical (and antiparochial) ideal that liberal secular humanists and many human rights activists have found appealing and associate with the very idea of modernity. Perhaps it is a vision of that sort that inspires the very idea of “law without nations.” Perhaps it is the vision that inspired John Lennon, the song writer and former “Beatle,” to write his famous utopian ballet “Imagine,” the lyrics of which might well have precipitated a nightmare in the dream life of Johann Herder. The tune of the song can’t be sung in a written essay (although it is very appealing—and

Geertz’s Challenge 213

catching), but notice the words in the song, in which John Lennon imagines, with approbation, that there are no countries, no religion, and nothing to live and die for.40

Narratives of the Enlightenment: Three Revealing Conferences Here I would like to pause for a moment to more concretely illustrate the character of various “The West Is Best and Will Take Over the World” prognostications. For starters consider the events at two World Bank meetings I attended toward the end of the last millennium, the first called “Culture Counts” (held in October ) and the second on the topic of gender and justice in Africa (held in May ).41 “Culture Counts” was a large international gathering held in Florence, Italy. It included talks by ministers of finance or culture or education from around the globe, and the president of the World Bank. Hillary Clinton was on the program. But the real highlight was the plenary academic session, which featured a keynote address by a prominent American economic historian. Given that the millennium was fast approaching, he reported on the last thousand years of what he presumed to be the universal race among nations to be successful (by which he meant to become as rich as possible); and he explained why the primordial national inheritance (read “cultural inheritance”) of a people makes all the difference for whether a territory is rich or poor. China was probably leading the race a thousand years ago, he supposed, but they inherited too many xenophobic beliefs from their ancestors and didn’t want to trade with outsiders. So the Chinese fell behind and didn’t get a ship to the Atlantic Ocean until well into the nineteenth century. The keynote speaker then took the audience on an economic and cultural tour of the rest of the world. Culture counts everywhere, he said. In Latin America they have this attitude called machismo; so Latin men think they are little princes and don’t want to work. In Africa, okay, yes, the physical environment is not very good, but they fight with each other all the time and they beat their wives. And then there is Southern Europe and Catholicism. The Catholic Church turned against Galileo and science. So Southern Europeans fell into ignorance and superstition. But now we have reached the year . Look

214

richard a. shweder

around! North Americans and Northern Europeans have won the race, and for good cultural reasons, the American exclaimed. Even before he could fully deliver his take-home message (Get with the progressive program: Westernize your culture, model yourself after us, or remain poor!) the Chinese delegate to the meeting had walked out of the room. The second meeting, on gender and justice in Africa, was held at World Bank central in Washington, DC, with occasional satellite links to audiences in six African countries. A prominent Western liberal feminist, who believed that the ideal of progressive social evolution and the end of history requires the sisters of the world to transcend their primordial ethnic group identities and religious and national attachments and unite in opposition to a loathsome and oppressive universal patriarchy, delivered the following message to a predominately African female audience. Stop complaining about colonialism, she said. African traditions and customs were bad for women long before colonialism came along. She then invoked a sensational literary account of wife beating. As it turned out, the “sisters” in the audience were mainly united in opposition to what they perceived as the speaker’s Anglo-Protestant neocolonial attitudes, and all-too-familiar and high-minded first world missionary zeal. They certainly had some complaints about their men. But they still viewed them as members of the family and generally felt at home with them in their distinctive national traditions. And they actually thought African females were pretty powerful, in their own way. But the meeting that was most revealing of the type of story I have in mind— of history ending with the apotheosis of the beliefs, values, and practices of a universal Western civilization—was the one held in April of  at the house of the American Academy in Cambridge, sponsored by Harvard University’s Academy for International and Area studies, and organized by Lawrence Harrison and Samuel Huntington. A notable theme at that meeting was the general equation of progress and goodness with Anglo-Protestant values. One of the organizers suggested that successful Protestant missionary efforts in Latin America might enhance economic growth, with the implication that the more Catholics who are converted to Northern European ways the better. Others argued that Jews and overseas Chinese are good for the economy too, especially if they behave like Protestants. Or at least subscribe to some version of the Prot-

Geertz’s Challenge 215

estant ethical law that only those who accumulate wealth have been chosen by God to be saved. The most dominant theme of the meeting, however, was the emphasis on progressive national development, so as to make the world a better place. Hence there was a good deal of discussion of what might be called the imperial AngloProtestant civilizing project. The project is aimed at establishing that the West (or at least its Northern-most sectors) is best, and at improving the rest of the world through exposure to Northern European and American values, beliefs, and customs. It would appear to be a sign of the times that the conference publication (a book called Culture Matters: How Values Shape Human Progress) became a media event. The book was reviewed in the Wall Street Journal and Time magazine and discussed in the New York Times and the Atlantic Monthly. For a short time it was one of the top  best-selling books at Amazon.com, a stunning achievement for an edited academic volume. I was invited to the “Culture Matters” conference to fill the role of a designated skeptic. And to some extent I played that part. But there were other, quite unanticipated thoughts on my mind during those days in the house of the American Academy. I found myself asking, Is this how the famous Franz Boas (the founder of American anthropology) and other robust cultural pluralists felt one hundred years ago debating with liberal progressive European Enlightenment inspired cultural evolutionary theorists in an earlier heyday of Western initiated globalization (roughly  to )? I found myself wondering, What happened to the robust cultural pluralism message of Anthropology ? In other words, I came face to face with the utter failure of my own discipline of anthropology to accomplish its most basic mission, to raise the awareness of social scientists, policy analysts, and the public at large to the virtue in the diversity of nations and to the hazards of any universal civilization ideal, whether it is Christian, Muslim, or secular in its ideological origins. And I found myself acutely aware of the responsibility of anthropologists, political philosophers, and globalization theorists to take up Geertz’s challenge and once again develop and promote a conception of the relationship between a cultural community and a political community that might be useful in minimizing some of the risks associated with the problem of “primordial” group differences and with multinational life in a global and migratory world.

216

richard a. shweder

Prophecy Two: The Nation (Based)-State Model Projected on a Global Scale: Civilizations Are Local, Not Universal As far as I know the true connection between globalization narrowly conceived (as free trade) and globalization expansively conceived (Western values, culture, and institutions taking over the world) has yet to be firmly established. It is quite possible that other cultures and civilizations do not need to become just like the United States to materially benefit from participation in an emergent narrowly conceptualized global economy. Modern technologies (for example, television, cell phones, computers, weapons) and economic institutions (for example, private property) seem to have effectively served many interests, including the interests of primordial communitarians and religious fundamentalists all over the world.42 It is also quite possible that even a genuinely successful narrowly conceived global economy will not emerge, or will fail to sustain itself, or that efforts to expansively globalize values, beliefs, and cultural practices will be effectively resisted (in some cases for very good reasons), or that the world will go to war. That is how the last big push to globalize the world came to an end, with World War I. And, of course what really happened when the Berlin Wall went tumbling down in  was that the boundaries of the former Soviet multinational empire began to dissolve, just as other empires have from time to time over the course of history splintered, fractured, or given up their sovereignty over one or more of the nations within their territorial realm. Speaking both metaphorically and literally, the flattening of that particular barrier unleashed a process in which diverse ethnic, racial, and religious satellite, vassal, and tributary regions under ethnic Russian hegemony or suzerainty (for example, the various nations in the Balkans and in the former Yugoslavia) began to seek autonomy as self-governing nation (based)-states; and in some instances those ethnonational movements engaged in violent conflict to achieve their aims. The result, which amounted to the construction of new nation-state territorial boundaries defined by culture, ethnicity, language, religion, or race, was not entirely anticipated or properly understood, although, given the role of the ethnonationalist impulse in the historical formation of modern nation-states all over modern Europe, Asia, and Africa, it should have been. Despite the popularity of end of history prognostications in the s and the global projection of a coming

Geertz’s Challenge 217

universal Western (more specifically American) civilization, augury turned out to be a very hazardous business, and the past twenty years have proved to be pretty baffling times. The ethnonational impulse is not necessarily pro-American. History has not come to an end, and ideological differences have not disappeared or converged on any single global standard. Instead history seems to be repeating itself, although there is debate about what precisely that recurrence might amount to. Hence, alongside the prediction of the apotheosis of a universal civilization and the end of national differences one finds the opposite augury. It predicts the apotheosis of robust cultural pluralism and the triumph of the ethnonationalist separatist project not only in Europe (where as Muller argued it has already triumphed) but on a global scale; with ideological differences expressed not just at the level of nation-states but also at the more macrolevel of regional civilizations. The second augury thus envisions the return (or continuation) of an ideologically divided world partitioned into either regional civilizations or perhaps individual nation (based)-states that compete and cooperate with each other while retaining their distinct cultural identities and corresponding forms of political organization (democratic, oligarchic, monarchic; liberal, autocratic, theocratic). It is a model of a robust, culturally plural international system devoid of any (domestically) multinational states; in other words, it envisions cultural diversity across states (or regions) and cultural homogeneity within states (or regions). Not surprisingly ethnonationalists love this image of the New World Order. In the s I had a Sudanese student who did his Ph.D. on attitudes toward modernization among African graduate students at the University of Chicago, using a beliefs and values questionnaire inspired by the modernization research of the sociologist Alex Inkeles. The Sudanese student discovered that the “materialism” factor in his questionnaire was orthogonal to the “individualism” factor; one could value wealth accumulation without giving up one’s primordial attachments or commitments and loyalty to the tribe. The Saudi Arabian ruling elite liked that message so much they hired him to teach in their universities. Perhaps that is why Samuel Huntington’s thesis that the West is unique, but not universal, and that other nation-states and civilizations do not need to become Americans to benefit from globalization and the technologies of the modern world, is so popular in the non-Western world.43 I think we have to take this

218

richard a. shweder

second prophecy very seriously, especially with regard to its expectation that globalization and human betterment can (and will) occur without the necessity of a deep penetration of cultural heritages from the West. Nevertheless, by the lights of this vision, diverse national communities, and even whole civilizations, are encouraged to remain domestically mononational so as to preserve their distinctive traditions while everyone gets a piece of the pie. It is the ideal of “when in Rome do as the Romans do” and “separate but equal” on a global scale.44

Prophecy 3: The Return of Multinational Empire, But (One Hopes) a Liberal One45 A third and final prophecy concerning the shape of the New World order predicts the return of multinational empire, although this time on a truly global scale. It anticipates the formation of a global multinational empire managed by cosmopolitan elites from all over the globe whose primordial origins are less important than their sense of identity with the liberal constitutional principles underlying the blueprint for the global empire. This augury rejects the common assumption that an empire is an outmoded or premodern form of political community, a thing of the past. It rejects as well the assumption that a postmodern multinational empire must be illiberal in its approach to the development of individuals and “primordial” groups. Indeed, this third augury begins with the observation that something very much like a global multinational empire (governed by cosmopolitan elites who have detached themselves from their primordial roots) is already in sight on the international scene; what still remains to be worked out is the precise character and scope of the empire’s liberality. The governing elites of this emerging global multinational empire currently seem divided: between those (for example, at the IMF or WTO or at meetings of the twenty wealthiest countries of the world) who are most dedicated to the pursuit of aggregate global wealth, which often means the implementation of a more expansive view of globalization and the liberation of individuals from the inherited traditions of their primordial groups, and those (for example, at the UN or the World Bank or at numerous NGOs) who are most dedicated to the pursuit of some form or another of social equality and global justice; which also often means the implementation of a

Geertz’s Challenge 219

more expansive view of globalization and the liberation of individuals from the inherited traditions of their primordial groups. Nevertheless this third augury predicts that, over time and in order to survive as an economically viable and just empire, the empire will have to accommodate itself to the reality of robust cultural pluralism on a global scale, or else risk dissolving into a balkanized world of hostile nation (based)-states. Assuming that necessity truly is the mother of invention, this means that the ruling elite of the emerging liberal global multinational empire will takes steps to protect both the liberty of peoples to perpetuate their way of life and the liberty of individuals to be at home in their own distinct cultural traditions, or exit from them if they so choose. Imagined in this third augury is the evolution of a mixed model of global governance, combining some of the features of the multinational Ottoman Empire (for example, local control by diverse nations over their own parochial customs) with some of the features of state (based)nationalism in the United States (for example, a state [based] sense of national identity compatible with a hyphenated cosmopolitan identity). It is a model for liberal global governance in which there is plenty of legal room and de facto space for cultural diversity. As Geertz observed, robust cultural pluralism is not just an obdurate fact of life; it can also be the mother of liberal invention. If the history of human reflection on the experience of living in groups has taught us anything it is that diverse nations based on socially reproduced differences in beliefs, values, and related social practices are unavoidable features of human social life; and that it is both tyrannical and unwise for rulers or governments to try to coercively engineer a multinational society into a uniform shape. Instructive in this regard is James Madison’s famous treatise concerning diverse factions in American society (in Federalist , originally published on November , , in the Daily Advertiser): a faction, according to Madison’s formulation, being a subgroup of the total population of some macropolitical community, whether in the majority or in the minority, who are bound to each other by some shared interests, values, opinions, passions, or historical identity that sets them in contrast to the interests, values, opinions, passions, or historical identity of some other subgroup. Consider, for example, Madison’s observations about the connection between faction formation and the liberal value of liberty or autonomy. He writes: “There are two methods of removing the causes of faction: the one, by destroy-

220

richard a. shweder

ing the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency. The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves.” In other words, in the absence of tyranny and in the presence of human fallibility populations will naturally diversify over historical time; distinguishable national identities will form; and in the face of such diversity, whether global or domestic, wise rulers and wise states would do well to embrace Thomas Jefferson’s ironic maxim “Divided We Stand, United We Fall.” They would do well to figure out which dividing lines work (and should be defended) and which don’t, for the sake of peace, order, and human betterment. Thus, all successful empires must come to terms with a fundamental problem of empire governance—the problem of how to exercise one’s sovereignty under conditions where there are deep disagreements among members of different communities within the empire about how sovereign state power should be exercised (deep enough to motivate collective resistance or civil unrest if the ruling elite try to penetrate too deeply into the way of life of a primordial group). Wise empires are adaptive enough to hold themselves together for long periods of time without relying on brute force and without a devastating loss of life, territory, and treasure. They learn to operate more or less as de facto federations; they try to avoid the many costs associated with forcefully imposing one’s will on others. In and through various failed and successful attempts to govern from the top or the center they come to understand some of the virtues of decentralization, indirect rule, and divided sovereignty.46 In other words they come to appreciate not just the obdurate reality of cultural pluralism but also the liberal ideology of political pluralism.

Geertz’s Challenge 221

The Ideology of Political Pluralism Allow me to begin to conclude this engagement with “Geertz’s Challenge” by suggesting that political pluralism is a liberal political ideology well suited to robust cultural pluralism and multinational states ranging from the United States to the Ottoman Empire. The ideology is expressed by the political philosopher Hannah Arendt when she described a distinctive feature of the American political community this way: “In contradistinction to the classical principles of the European nation-state that power, like sovereignty, is indivisible, the power structure of this country rests on the principle of division of power and on the conviction that the body politic as a whole is strengthened by the division of power.”47 William Galston, the political philosopher, describes a related “political pluralism” principle, which he also refers to as the theory of “multiple sovereignties,” and which he associates with the writings of the British political theorists Harold Laski, J. N. Figgis, and G. D. H. Cole and their critique of the European “plenipotentiary state.” The basic idea, as noted by Galston, is that “our social life comprises multiple sources of authority and sovereignty—individuals, parents, associations, churches, and state institutions, among others— no one of which is dominant for all purposes and on all occasions. Nonstate authority does not exist simply as a concession or gift of the state. A well-ordered state recognizes, but does not create, other sources of authority.”48 The ideology of political pluralism places a great emphasis on freedom of association (and the implied freedom to dissociate from others) as a fundamental right. The ideology makes the Herder-like assumption that fellow feeling for members of one’s kind “is a basic human need no less natural than that for food or drink or security or procreation.” It assumes that in-groups and local associations (including those based on real or imagined primordial ties to ancestral groups) that are independent of the government are not only natural to human beings but an essential condition for the flourishing of the social life of a political community. As Hannah Arendt emphasizes, a political community becomes totalitarian when all natural groupings, private associations, and primordial bonds of society are brought under state control and thought to exist only to the extent that they are given permission to exist or are licensed by the state. As the sociologist Paul Hirst makes note in his introduction to the selected writings of Cole, Figgis, and Laski: “The English pluralists challenged the theory

222

richard a. shweder

of unlimited state sovereignty and of a unified centralized state embodying such sovereign power in a hierarchy of authority.”49 One implication of political pluralism is that a despotism based on the will of the majority (the mob) is not much better than a divinely based despotism. Alternatively stated, the autonomy of local in-groups is threatened not only by theocracies claiming unlimited, central, and omnicompetent ruling powers but also by national assemblies based on majority rule and the absolute sovereignty of “the people.” When “the people” think of themselves as sovereign and also act that way, neither the dead nor the unborn have a vote and the (real and imagined) primordial ties that bind the present to the historical ethical community are dissolved. J. N. Figgis in particular tried to develop a theory of political pluralism designed to preserve the authority of autonomous associations (religious organizations, clubs, and trade associations) against internal regulation by external legislative bodies; by the lights of Figgis’s normative version of political pluralism, the role of the state should be restricted to the supervision of the interactions between diverse local self-regulating bodies. It is not too much of an imaginative stretch to suggest that in these theories of political pluralism one finds a liberal political ideology based on principles of divided sovereignty, limited government, and the dispersion of power, an ideology well suited to the evolution of a liberal global multinational empire, as anticipated by prophecy #.

A Cautious Ottomanism and Prophesy #3 Prophesy # imagines a global empire managed by ruling elites who are wise enough to leave plenty of space for the diversity of nations—and wise enough to ponder the Ottoman example, fully cautious and mindful of the caveats noted earlier. Recall that the Ottoman Empire lasted much longer than the British Empire. The Ottoman elite had a brilliant strategy (an arguably liberal principle focused on the liberty of peoples) for maintaining peaceful coexistence among the many primordial communities (those twenty-two “races”) who resided within their multinational state. Under the Ottomans the so-called millet was a term used to designate a community entitled to a good deal of deference and to semiautonomy in the administration of the affairs of its members.50 This is one reason that the expression “Ottomanism” has come to mean a federation of semiautonomous millets, where membership in a millet is typically defined

Geertz’s Challenge 223

by language, religion, and ethnic history; and where one’s personal identity and sense of self-(efficacy, expressiveness, esteem) is part and parcel of being recognized as a Serb or an Arab or a Jew (or a Bulgar, or a Lebanese Christian, or a Greek, or a Sunni Turk, and so forth). Thinking through the Ottoman case, selectively and mindful of those caveats mentioned earlier, it is also not hard to imagine additional and rather more cosmopolitan millets (Cairo, Damascus) populated by relatively rootless or rebellious exiles who might have voluntarily exited (or been banished) from the various local territories where primordial ties and a customary heritage defined one’s identity and way of life. Thus, “Ottomanism,” as I use the term, is meant to connote a relatively decentralized form of political administration in the Ottoman multinational state; where for example, the Mosul millet was internally administered by the Kurds, the Basra millet internally administered by the Shiites, and the Baghdad millet internally administered by the Sunnis, and the relatively nonintrusive Sunni sultans stayed away or were kept at a distance. Indeed, the contemporary state of Iraq is a case in point. For “Ottomanism” was the model for the way the ruling elite of the empire organized their relations with the diverse peoples who lived in the territories that were subsequently (in the “modern” post–Ottoman Empire era) arbitrarily amalgamated by the European nation (based)-states into a single sovereign state, which for many years after World War I was dominated by a minority Sunni Muslim nation that viewed “Iraq” as their own nation (based)-state. More recently those arbitrarily amalgamated territories (the three former millets of the multinational Ottoman Empire) were invaded by the United States on the assumption that the American state (based)-nation model of national identity and political community could be transplanted onto almost any foreign soil. Under the earlier Ottoman model there was no Iraqi state but rather a decentralized form of indirect rule with local self-determination by primordial groups and with no demand by the Ottoman elite for a deep spiritual allegiance to the central figure of the Sunni sultan. This decentralized federal form of organization, which is protective of the distinctive ways of life of diverse nations, is captured by the historian Caroline Finkel in her book Osman’s Dream: The Story of the Ottoman Empire from –. There she notes how the eventual territorial dismemberment of the Ottoman Empire upset the nineteenth century’s relatively peaceful modus vi-

224

richard a. shweder

vendi . Different groups—Serbs, Bulgars, and others—broke away and sought their own nation (based)- states. And she makes the following revealing (and quite remarkable) observation: “Ottoman Jews subscribed to the idea of ‘Ottomanism’ for longer, continuing to hold prominent positions in the CUP (the Young Turk Party) even after the  revolution. In the early years of the century about half of all Ottoman Jews lived in Thessalonica—where many had settled after their expulsion from Spain and Portugal at the end of the fifteenth century; they had shown little interest in Zionist efforts to establish a Jewish homeland in Palestine during the reign of Abdulhamid, and few chose to go there when Thessalonica was lost to Greece in , migrating instead to France, Britain, Egypt, Brazil, South Africa and the United States. Following the  revolution, a branch of the World Zionist Organization was established in Istanbul . . . . [Many Zionists] . . . saw a homeland within the Ottoman Empire as the best guarantee of their security.”51 The Ottoman multinational state was thus a politically plural polity domestically arranged to discourage the temptation to proselytize or universalize one’s beliefs, values, and social norms or impose them on others. Instead, the empire made room and gave lots of real space for cultural pluralism. Under the Ottomans each group had control of its own local territory. Each was at liberty to carry forward its distinctive way of life, including its religious beliefs, and family and social life norms; while the ruling elite collected taxes and tried to garrison its policing forces so as to keep the boundaries of each of the millets secure. Hence this last augury or speculation about the future of a New World Order imagines a global system—a truly liberal empire on a global scale—that leaves plenty of room for diverse (and even illiberal) ways of life and consists of semiautonomous milletlike “primordial” political communities with limited sovereignty over their internal affairs (for example, the current nation [based]states of the world) and managed by a international class of cosmopolitan citizens of the world. Prophecy # thus imagines a world order that is politically liberal in the classical sense. Its political leaders assume a stance of neutrality with regard to substantive cultural issues. They don’t condition trade, aid, or protection on changes in local gender ideals, forms of authority, kinship structures, or coming of age ceremonies. They don’t try to tell the members of different nations or primordial groups that they have to live together or love each other or share the

Geertz’s Challenge 225

same moral values, emotional reactions, aesthetic ideals, and religious beliefs. They don’t try to tell them how to run their private lives, or even that they must have private lives. Imagine that in this world order various sanctioning mechanisms make it possible to enforce minimal rules of respect for persons, civility, and safety within ethnic enclaves and between primordial groups: exit visas are always available, and no aggression is permitted across territorial boundaries. Imagine that such a world order is set up to permit or encourage decentralized control over cultural issues and hence to promote robust cultural pluralism. It seems likely, and perhaps even necessary, that the worldwide liberal multinational empire envisioned in prophecy # will be stratified or operate at two levels, global and local. One tier, the transnational level, would need to be occupied by cosmopolitan liberals, who are trained to appreciate and value political pluralism and cultural diversity and to run the global institutions of the world system. The other tier would need to be more milletlike and occupied by nationbased folk with primordial attachments to their cultural and religious heritages who are not necessarily liberal in their values and practices (although they might be), and who are dedicated to one form or another of thick ethnicity and inclined to separate themselves from others, thereby guaranteeing that there is enough cultural and religious diversity remaining in the world for the cosmopolitan liberals who run the global multinational state to appreciate. In conceptualizing this third prophecy one imagines that the global elite (those who are cosmopolitan and liberal), will come from diverse nationalities (as did the Ottoman elite). In the universal cosmopolitan culture of the global tier of the world system your ancestry and skin color will be far less important than your educational credentials, your politically liberal values, and your travel plans. Finally it should be possible in this New World Order for individuals to switch tiers in both directions, moving from global state-based liberalism to local national identity and back, within the course of a single lifetime. With regard to the implications of globalization for human betterment one hazards this guess. If it should turn out as an empirical generalization that aggregate wealth accumulation can be pulled off relying only on free trade across borders and the shallow or thin aspects of Western society (weapons, information technology), then nations won’t converge in their beliefs, values, and social

226

richard a. shweder

practices, even as they get richer. If aggregate economic growth is truly contingent on the universal acceptance (or enforcement) of the deep or thick aspects of the cultural heritage of any single nation or civilization, then nations will not converge, and they won’t become significant players in the global wealth accumulation game either, because their sense of their historical and ethical heritage and their distinctive communal identity will supersede their desire for material wealth. The deontological side of their nature, their sense of duty and attachment to who they are as a people, will trump any simple utilitarian calculus; and the successful preservation of their distinctive way of life may itself become the measure of their own betterment. Of course, divining successor regimes is a very hazardous business. And it remains to be seen whether history will come to an end with the apotheosis of a universal civilization (prophecy #), the universal triumph of ethnonationalism with its many separated and autonomous nation (based)-states (prophecy #), or whether human beings, having lived in multinational empires many times before the modern era, are ready to do so again, even on politically liberal terms (prophecy #). Geertz’s challenge is unsettling, and remains far from settled.

Notes The essay was completed while the author was a Rosanna and Charles Jaffin Founders Circle Member of the School of Social Science, Institute for Advanced Study in Princeton, New Jersey. An early draft was presented at the seminar on “Law without Nations” (organized by Austin Sarat) at Amherst College on February , . I wish to thank the seminar members both for their critical comments and for their liberality with regard to my interdisciplinary scouting expedition into the territories of the political philosophers and the globalization theorists. I have benefited greatly from comments on a subsequent draft of the essay from all of the following friends and scholars: Danielle Allen, Michael Hechter, Benjamin Heineman, Jr., Yuval Jobani, Craig Joseph, Simon Lazarus, Ronald Rappaport, Patricia Rosenfield, Joan Scott, Richard Taub, and Ning Wang. . Clifford Geertz, “What Is a Country If It Is Not a Nation?” Brown Journal of World Affairs  (): –. . See, esp., ibid.; and Geertz, “The World in Pieces: Cultural Politics at the End of the Century,” FOCAAL: European Journal of Anthropology  (): – (reprinted in Geertz, Available Light: Anthropological Reflections on Philosophical Topics [Princeton: Princeton University Press, ]); see also Geertz, “The Uses of Diversity,” Michigan Quarterly Review  (): –. For a much earlier and highly pertinent essay by Geertz, one concerned to elucidate the character of “primordial political communities”

Geertz’s Challenge 227

(where self-consciousness about one’s kind and the sense of fellow feeling is based on real or imagined communal ties of blood, language, region, religion, and shared social practice) and the implication of perceived or felt primordial attachments for the formation of “civil political communities,” see Geertz, “The Integrative Revolution: Primordial Sentiments and Civil Politics in the New States,” in C. Geertz, ed., Old Societies and New States (New York: Free Press, ). . Clifford Geertz, of course, was not the only writer to raise the challenge or pose the questions discussed in this essay. One is heartened to see the sophistication and brilliance with which such issues have been taken up by a number of political philosophers, including, for example, Michael Walzer, William Galston, Will Kymlicka, and many others, including such scholars as Ernest Gellner and Michael Hechter. And it is humbling as well. My own concerns with political theory have their origins (somewhat remotely) in the discipline of cultural anthropology and not in political philosophy, and the hazard is real of oversimplifying a complex field. See Michael Walzer, On Toleration (New Haven: Yale University Press, ); William Galston, “Progressive Politics and Communitarian Culture,” in Toward a Global Civil Society, ed. Michael Walzer (Oxford: Berghahn Books, ), –; Will Kymlicka, Multicultural Citizenship (New York: Oxford University Press, ); Ernest Gellner, Nations and Nationalism (Ithaca, NY: Cornell University Press, ); Michael Hechter, Containing Nationalism (Oxford: Oxford University Press, ). See also Stephen Macedo, Diversity and Distrust (Cambridge: Harvard University Press, ); Rob Reich, Bridging Liberalism and Multiculturalism in American Education (Chicago: University of Chicago Press, ); Ian Shapiro and Will Kymlicka, eds., Ethnicity and Group Rights (New York: New York University Press, ). . Concerning some of these anxieties, conflicts, and domestic attempts at customs control, see, for example, John Bowen, Why the French Don’t Like Headscarves (Princeton: Princeton University Press, ); Joan W. Scott, The Politics of the Veil (Princeton: Princeton University Press, ); Richard A. Shweder, Martha Minow, and Hazel R. Markus, eds., Engaging Cultural Differences: The Multicultural Challenge in Liberal Democracies (New York: Russell Sage Foundation Press, ); Unni Wikan, In Honor of Fadime: Honor and Shame (Chicago: University of Chicago Press, ). . Geertz, Available Light, . . As a preliminary definition I use the term “nation” to refer to communities of people who believe they are tied to each other by bonds of descent and a shared cultural heritage. Much more will be said about “nations” and “states” and various forms of political community later in the essay. . See, for example, Geertz: Islam Observed (New Haven: Yale University Press, ); The Interpretation of Cultures (New York: Basic Books, ); Negara: The Theatre State in Nineteenth Century Bali (Princeton: Princeton University Press, ); Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, ). . Geertz, Available Light, .

228

richard a. shweder

. Geertz, “What Is a Country If It Is Not a Nation?,” . . Ibid., –. See also Geertz, “The Integrative Revolution”; and Ulf Hannerz, “Speaking to Large Issues: The World, If It Is Not in Pieces,” in Clifford Geertz by His Colleagues, ed. R. A. Shweder and B. Good (Chicago: University of Chicago Press, ). . For a useful collection of seminal readings on the idea of a national identity, see Vincent P. Pecora, ed., Nations and Identities (Oxford: Blackwell Publishers, ). . As quoted in John Gray, Isaiah Berlin (Princeton: Princeton University Press , ). . David Miller, “In Defense of Nationality,” in Nations, Cultures and Markets, ed. Paul Gilbert and Paul Gregory (Abingdon: Avebury, ). . Roger Scruton, Modern Culture (London: Continuum, ), –. . David Fromkin, The Peace to End All Peace (New York: Holt, ), , . Concerning Ottoman society, see also Caroline Finkel, Osman’s Dream: The History of the Ottoman Empire – (New York: Basic Books, ); Halil Inalcik, ed., An Economic and Social History of the Ottoman Empire, vols.  and  (New York: Cambridge University Press, ). . Michael Walzer, “Response to Kukathas,” in Ethnicity and Group Rights, . . Walzer, On Toleration. . Samuel Huntington, The Clash of Civilizations and the Remaking of the World Order (New York: Simon and Shuster, ). . Jerry Z. Muller, “Us and Them: The Enduring Power of Ethnic Nationalism,” Foreign Affairs  (March/April ): –. . Walzer, On Toleration, . . See, for example, Hechter, Containing Nationalism. . Muller, “Us and Them.” . Concerning the situation in Belgium, see Robert H. Mnookin, “Ethnic Conflicts: Flemings and Walloons, Palestinians and Israelis.” Daedalus: Journal of the American Academy of Arts and Sciences (Winter ): –. . The literature on the topic of U.S. exceptionalism is of course vast, ranging from position papers by founders (for example, James Madison, Alexander Hamilton, and John Jay in the Federalist Papers) to ethnographic or journalistic classics such as Alexis de Tocqueville’s Democracy in America (Signet ; originally published in ) to contemporary philosophical texts such as John Rawls’s Political Liberalism (New York: Columbia University Press, ), Michael Walzer’s What Does It Mean to Be an American? (New York: Marsilio Publishers, ), and William Galston’s Liberal Pluralism (New York: Cambridge University Press, ), to detailed explications of the meaning of the U.S. Constitution (for example, Akhil Amar’s American Constitution: A Biography [New York: Random House, ]), to the many popular and scholarly historical accounts of what Joseph Ellis has called “American Creation” in his best-selling book by that title (New York: Vintage Books, ).

Geertz’s Challenge 229

. See, for example, Samuel Huntington, Where We Are: The Challenges to America’s National Identity (New York: Simon and Shuster, ); also Huntington, “The West Unique, Not Universal,” Foreign Affairs  (): –. . Michael Walzer, “Two Kinds of Universalism,” in Tanner Lectures on Human Values (Salt Lake City: University of Utah Press, ). . Jan-Werner Muller, Constitutional Patriotism (Princeton: Princeton University Press, ). . The image of the United States of America as “a world-federation in miniature” belongs to the early twentieth-century writer Randolph Bourne, who was himself influenced by the writings of the American philosopher of cultural pluralism Horace Kallen. With regard to the writings of Bourne and Kallen, see Stephen J. Whitfield, “Introduction to the Transaction Edition,” in Horace M. Kallen, Culture and Democracy in the United States (London: Transaction Publishers, ; originally published in ). . Commenting on a provocative (and in my judgment brilliant) essay in which Chandra Kukathas explores the scope and limits of toleration for cultural diversity in any domestic political regime, the political philosopher Michael Walzer writes (with the Ottomans apparently in mind): “If a great warrior, or warrior tribe, conquered a great number of communities and was content to rule them indirectly, collecting tribute or taxes, leaving the local notables in place and allowing them to work out patterns of coexistence with their immediate neighbors, this would be a regime of toleration close to, though not identical with, Kukathas’s ideal. Unlike international society, which just happens, this would, again, be a creation, someone’s project. But now the project would not necessarily make for intolerance. The conquering warriors could celebrate their triumphs, build monuments, and write histories, and so on, without giving rise to a culture that was common to all their subjects. They would probably have contempt for their subjects—and no interest in commonality—but contempt of this sort is entirely consistent with toleration. The subject communities could still organize their own lives, maintaining among their members practices that a liberal democracy would not tolerate.” Walzer, “Response to Kukathas,” ). What precisely those intolerable practices or “un-American activities” ought to be in a liberal state (based)-nation such as the United States is presumably a collective judgment that will be historically constrained by a process of interpretation of the constitutional blueprint for the state. In the instance of U.S. national identity “constitutional patriotism” might be quite consistent with tolerance for the diverse social practices of the different primordial groups living within the territory of a multinational state, although the scope and limits of that tolerance (for example, over practices such as gay marriage, head scarves, neonatal circumcision, prayer in school, polygamy) will always be matters for debate. . The one hyphenated identity that appears to have been historically treated as the most alien (or “other”) to American national identity was “American-communist.” Contrast this with the situation in Italy or France, where Italian-communists or French-

230

richard a. shweder

communists are not viewed as subversive outsiders or as foreign to national identity. One is tempted to speculate that this has something to do with the difference between a state (based)-nation and a nation (based)-state. It is communism (perceived as a threat to the foundational principles of the state [based]-nation) that gets viewed as alien to national identity in the United States, while it is Islam (and its mismatch with the traditions of the primordial nation [based]-state) that seems threatening to national identity in Denmark. The idea of an Indian Muslim-American is no less imaginable than German Jewish-American or Anglo-Protestant American; such hyphenated identities are perfectly grammatical within the language of the American national identity, and in the relevant state (based) American sense of nationality all three types of hyphenated Americans are equally Americans. . A note sent by Thomas Jefferson to Rabbi Jacob de la Motta. September , . . The expression the “melting pot” derives from a  play by that title written by Israel Zangwell. . Justice William O. Douglas, DeFunis v. Odegaard,  U.S.  (). . Here allow me to underline the conjectural and speculative nature of the remaining sections of the essay and note that the discussion of globalization and the three prophecies directly draws on or repeats, and seeks to unify and extend, several previous writings, for example, Richard A. Shweder, “Moral Maps, First World Conceits, and the New Evangelists,” in Culture Matters: How Values Shape Human Progress, ed. Lawrence Harrison and Samuel Huntington (New York: Basic Books, ); also Richard A. Shweder, Why Do Men Barbecue?: Recipes for Cultural Psychology (Cambridge: Harvard University Press, ). . By the lights of this conception of human betterment, human patterns of equality or inequality (both within and between nations and states and over time) are viewed as secondary issues or as subordinate to the end of aggregate wealth accumulation on a global scale. In other words, such patterns of equality or inequality in the distribution of wealth are viewed as one of the social means to the end of aggregate human wealth production, and are thus evaluated as good or bad solely (and instrumentally) in those terms. The cosmopolitan elites who have the greatest voice in the emerging New World Order differ in the extent to which they believe that aggregate wealth accumulation is the gold standard for evaluating the impact of any globalization measure, or whether other criteria (patterns of human equality, the capacity to maintain one’s cultural heritage, the capacity to exercise political sovereignty, individual liberty) matter as well, or more. . Quoted in Jerry Z. Muller, The Mind and the Market (New York: Knopf, ), . . Francis Fukayama, The End of History and the Last Man (New York: Free Press, ). . Robert Kagan, The Return of History and the End of Dreams (New York: Knopf, ). Think, for example, of the persistence of the varieties of ideological differences

Geertz’s Challenge 231

between just these four states alone: Russia, Iran, China, and the United States; think too about all the significant ideological differences between primordial groups within a single multinational state such as Iraq or Nigeria or (these days) even Holland. . For more on progressive views of the march of history, see Keith Baker, Condorcet: From Natural Philosophy to Social Mathematics (Chicago: University of Chicago Press, ). . John Lennon’s nationless, propertyless brotherhood of pacified, sated, and fully secularized cosmopolitan individuals whose oneness consists of the shared absence of any homeland or primordial attachments other than to “the World” is anarchic, fanciful, and utopian, but it does capture in its own lyrical way the universalizing spirit of “end of history” augury. . I have narrated these experiences before: see, for example, Shweder, Why Do Men Barbecue? For an earlier schematic discussion of the three prophesies, see Shweder, “Moral Maps.” . For a discussion of the way the liberal institution of private property can serve the communitarian purposes of primordial groups, see, for example, Nomi Stolzenberg, “The Culture of Property,” in Shweder, Minow, and Markus, eds., Engaging Cultural Differences. . Huntington, “The West Unique, Not Universal.” . Those who view the United States as an Anglo-Protestant nation (based)-state (for example, Samuel Huntington) are often advocates for robust cultural pluralism on a global scale while at the same time opposing domestic cultural pluralism or “multiculturalism” inside their own nation (based)-state. “You may have your culture and civilization,” they seem to be saying to members of other nations, “but please stay away and let me have mine!” Opposition to foreign immigration readily follows from this stance. Consequently, those who view American national identity as ethnonational in character, as the unique and sovereign expression of a way of life distinctive of Anglo-Protestant ethnicity, race, religion, and culture, are often wary of immigrants (Mexican Catholics, Eastern European Jews, Chinese) who have primordial ties to ancestral groups other than those that are Anglo-Protestant. . If one had to bet, I would place my own bet on this prophecy. . See Hechter, Containing Nationalism. . Hannah Arendt, “Reflections on Little Rock,” Dissent  (): –. . Galston, Liberal Pluralism, . . Paul Q. Hirst, ed., The Pluralistic Theory of the State: Selected Writings of G. D. H. Cole, J. N. Figgis, and H. J. Laski (New York: Routledge, ), . . See Fromkin, The Peace to End All Peace, . . Finkel, Osman’s Dream, .

Index

Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, –, , ,  Abduh, Mohammed,  Abkhazia, ,  Afghani, Sayyid Jamal ad-Din al-, ; anti-imperialism, –, ; influence, –, ; “Lecture on Teaching and Learning,” ; radicalism, ; “Refutation of the Materialists,” –, – Africa, gender and justice in,  African Charter on Human and Peoples’ Rights, ,  Agamben, Giorgio, –n, n Al-Marri v. Wright, n American Convention on Human Rights, ,  Amnesty International,  Anderson, Benedict,  Anghie, Antony,  Anthropology, ,  Antitrust enforcement, –,  Arendt, Hannah, –, –,  Ataturk, ,  Atrocities: in Balkans, –; criminal prosecutions, –. See also Crimes against humanity; Human rights law; War crimes Balkans, see Yugoslavia, former Baron, Salo,  Belgium: Habré indictment, n; as multinational state, , ,  Berlin, Isaiah, 

Berman, Harold, ,  Bible, , –, –,  Blackstone, William,  Blidstein, Gerald, ,  Bosnia: refugee repatriation, . See also Yugoslavia, former Boumediene v. Bush, n British Empire, . See also United Kingdom Burns, United States v., –, , , ,  Bush, George W.,  Bush administration: invasion of Iraq, ; war on terrorism, –, –n, n; withdrawal from International Criminal Court, , , –n Cambodia, Khmer Rouge, – Canada: Charter of Rights and Freedoms, ; comparative constitutionalism, –; death penalty abolition, ; extradition treaty with United States, –; as multinational state, , ; polygamy cases, –n; same-sex marriages, ; universal jurisdiction,  Canada, Supreme Court of: citations of foreign cases, , –, n, n; extradition cases, –, , , , ; opinions cited by foreign courts, , ,  Chile, . See also Pinochet, Augusto Choice of law cases, –, , , – Choudhry, Sujit, –, 

234

Christianity, , –, , – Churchill, Winston,  Citizenship, , ,  Civil Marriage Trail,  Clinton, Bill, ,  Clinton, Hillary Rodham,  Cold War: end of, –, –; refugee crises,  Colonialism, , . See also Imperialism Communism, –n Comparative constitutionalism: citations of foreign cases, –; criticism of, ; international law and, –; justifications, –; knowledge of foreign law, –; Lochner jurisprudence outside United States, –; standpoint of judge, . See also Disembedded state law Conflict of laws, see Choice of law cases Congress, U.S.: Authorization for the Use of Military Force (), , –n; Military Commissions Act, , , n; USA PATRIOT Act, , n Constitutionalism, see Comparative constitutionalism Constitutional patriotism,  Cosmopolitanism: crimes, ; halakha, , , –, –; liberal, ; nationalism and, –; secular, , ; sharia and,  Cosmopolitan law, – Cotterrell, Roger,  Courts: application of international law, n; communication among, –; in Islamic world, , , ; jurisdiction of national, ; rabbinic, . See also Comparative constitutionalism Courts, international: ad hoc tribunals, –; authority and jurisdiction, , –, ; globalization and, ; trials of heads of state, –. See also International Criminal Court; International criminal tribunals

Index

Crimes against humanity: definitions, ; Nuremberg trials, , n, ; prosecutions, , –, n Criminal justice: definition of crimes, –; distinction from war, ; extraterritorial jurisdiction, –, , –; globalization, –; jurisdictions, –; state jurisdiction, ; universal jurisdiction, , –, , , n, n Cultural pluralism: in anthropology, ; choice of law cases, –; in future, , –, , ; of Geertz, –; in Ottoman Empire, , ; political liberalism and, –, , , ; in United States, , , n Cultural tourism,  “Culture Counts,” – Cyprus,  Czechoslovakia, Germans expelled from, –, n Death penalty, –, , , n De la Motta, Jacob,  Democracies: halakha and, ; U.S. national identity as, – Denmark: Islam in, –n; as nationbased state, , , , , . See also Scandinavia Deportations, see Population transfers De Zayas, Alfred M., ,  Diasporas, ,  Disembedded state law, –, , ; choice of law cases in private international law, –, , , –; legal pluralism and, , –; nature as law, –; nonstate law and, –; rejections of foreign law, ; standpoint of foreign law, –; transnational cases, , –, , ; treatment of foreign law, , ; types, . See also Comparative constitutionalism Dodek, Adam M., 

Index 235

Douglas, William O., – Dudgeon v. United Kingdom,  Durkheim, Emile,  Economic regulation, – Eco-terrorism,  Edrei, Arye, , ,  Empires: global, –; governance, ; as multinational states, –, , ; Roman, , , . See also Imperialism; Ottoman Empire Enemy combatants, ,  England, see United Kingdom Ethnic cleansing: failure to prevent, ; in former Yugoslavia, , , , ; nation-state consolidation and, –, , ; recent examples, , , , , ; use of term,  Ethnonationalism: conflicts, –; criticism of, , ; in Europe, –, , ; German, –; goals, ; in modern era, , ; resistance to,  Europe: ethnonationalism, –, , ; Islam in, , –n; population transfers, –; refugees,  European Convention on Human Rights, , – European Court of Human Rights, ,  European Union: antitrust enforcement, –; as political community, ; sovereignty, ,  Executive power,  Exile: definitions, ; diasporas, , ; Jewish, , . See also Population transfers Existential conflicts,  Factions, – Fadel, Mohammad, , – FBI (Federal Bureau of Investigation), ,  Feminism,  Fichte, Johann Gottlieb, ,  Figgis, J. N., 

Filali-Ansary, Abdou, – Finkel, Caroline, – Fischer, David,  Fischer, Shlomo, ,  Foreign law, see Comparative constitutionalism; Disembedded state law France: Jews in, , ; nationhood, ; ships,  Fromkin, David,  Galston, William,  Geertz, Clifford: challenge, –, , –, , , ; cultural pluralism, –, ; political liberalism, – Geneva Conventions, , , n; Fourth (), , , , – Genocide: criminal prosecutions, –, , , n; definitions, , –, n; domestic laws, –; in Rwanda, – Genocide Convention, , n, –,  Georgia, refugee crisis, – Germans: population transfers, –, n; Volk, – Germany: citizenship law, n; ethnonationalism, –; Jews in, –; private international law, ; Reichstag, , ; Weimar Republic, –. See also Nazi Germany Gerondi, Nissim, –, ,  Glenn, Patrick, – Globalization: broadest concept, –; of criminal law, –; cultural pluralism and, –; economic, , –, –; expansive concept, , –, ; legal, –, –, , ; narrow definition, –; predictions, –, –, –, ; structural adjustments for,  Glocalization, – Goren, Rabbi, , 

236

Greenpeace,  Grotius, Hugo,  Guantanamo Bay detainees, n, – Habeas corpus, –, ,  Hague Conventions,  Halakha: Christian influences, ; comprehensive nature, ; contemporary models, –; cosmopolitan model, , , –, –, ; DDM principle, –, nn–, n; enforcement, , , ; global community and, –; history, –, –; individual observance, –, , , , ; Israeli state and, –, , , , , , n; Jewish kings and, –; Jewish nation and, , , –, , , , –, , ; modern nation-states and, –, , –, ; national-organic model, –; as ritual manual, , , , ; written and oral,  HaLevi, Yehuda,  Hamdan v. Rumsfeld,  Hamdi v. Rumsfeld, , n Harrison, Lawrence,  Harvard University, Academy for International and Area Studies,  Hegel, Georg Wilhelm Friedrich, , n Herder, Johann, –,  Hilton v. Guyat,  Hirst, Paul Q., – History, end of,  Hobbes, Thomas, –, , –, , – n, ,  Hoover, Herbert, – Human rights law: on death penalty, ; habeas corpus, ; individual orientation, , ; nationality and, ; on population transfers, –, –, –; prioritizing rights, –; on refugees, –, –;

Index

sharia and, ; Universal Declaration of Human Rights, –, , , ; universal jurisdiction, ; universal standards, n. See also Atrocities; Ethnic cleansing; Population transfers Huntington, Samuel, , ,  Ibn Adret, n Ibn Sina (Avicenna),  ICC, see International Criminal Court ICCPR, see International Covenant on Civil and Political Rights IDPs, see Internally displaced people Imagined communities,  Immigrants: choice of law cases, , ; distinction from refugees,  Imperialism: in Islamic world, –, , , ; legal system imposed, ; resistance to, –, –. See also Empires India: British rule, ; Muslims, ; population movements between Pakistan and, , , n; Supreme Court of,  Inkeles, Alex,  Interlegality,  Internally displaced people (IDPs), –. See also Population transfers; Refugees International Convention for the Suppression of the Financing of Terrorism,  International Covenant on Civil and Political Rights (ICCPR),  International Criminal Court (ICC): cases referred by UN, –, n; criticism of, , ; establishment, , –; future of, , n; jurisdiction, , –, ; Rome Statute, –, , n, , –; withdrawals, , , , –n, n International criminal tribunals, –, , –

Index 237

International law: criminal law, –; criticism of, ; domestic application, n, –; Grotius on, ; Jews and, ; private, ; public, ; U.S. Supreme Court citations, . See also Human rights law International Military Tribunal, see Nuremberg tribunal International Refugee Organization (IRO),  International trade agreements, . See also World Trade Organization Iranian Revolution, – Iraq: ethnic separation, ; laws, ; as nation-state,  IRO, see International Refugee Organization Islam: comparison to Christianity, –; in Europe, , –n; fundamentalism, , n; philosophy, ; Quran, , , , ; radical, , , n; reformers, , , ; relationship to secular authority, –,  Islamic law, see Sharia Israel: establishment, ; halakha and, –, , , , , , n; international law and, ; marriages, ; religious movements, , n; Supreme Court of, , ,  Jackson, Vicki C., – Jaspers, Karl,  Jefferson, Thomas,  Jewish law: on financial matters, – n; lay legislation, ; Mishna, , ; Noahide, –, , , , –n; Talmud, , , , , –, , , , , , , –n; Torah, , , , –, , , , n. See also Halakha Jews: collective identity, –, , , ; emancipation, –, , ; exile, , ; in Germany, –, –,

; Holocaust, , ; Jefferson and, ; kings, –; marriages, ; nationhood, ; in Ottoman Empire, ; priests, –; taxation, , n; Zionism, , ,  Judges: communication among, –; Islamic religious, , , ; under Jewish law, , , ; knowledge of foreign law, –; views of foreign laws,  Justice Department, U.S., Office of Legal Counsel, – Kagan, Robert,  Kahn, Paul W.,  Kant, Immanuel,  Kaplan, Mordechai, – Keddie, Nikki R.,  Kenya, ethnic displacement, – Khan, Sayyid Ahmad,  Khmer Rouge, – Khomeini, Ayatollah,  Kissinger, Henry,  Koran, see Quran Lateral thinking, ,  Lawrence v. Texas, – Law without nations: dystopic view, ; globalization and, –; liberal view, –; meanings, –, –. See also Courts, international; Disembedded state law; International law; Nonstate law; Religious law League of Nations,  Legal globalization, –, –, ,  Legal Orientalism, ,  Legal pluralism, , –,  Legal positivism, , , ,  Legal systems, intersections,  Leibowitz, Yeshayahu, , ,  Lennon, John, “Imagine,” –, n Liberalism: globalization and, , ; human rights law and, , ; separation of law and morality, –;

238

view of law without nations, –. See also Political liberalism Lochner v. New York, –, ,  Locke, John, ,  Lotus, Case of the S.S.,  Lövy, S. A.,  Madison, James, – Maimonides, , –, – Marriages: abuse in, –; choice of law cases, , –, ; Jewish, ; polygamy, , –n; same-sex, ,  Matthews, Jessica T.,  Mendelssohn, Moses, – Military commissions, , , n Miller, David,  Minorities, see Ethnic cleansing; Population transfers Modernity: ethnonationalism in, , ; halakha and, –,  Mohammed, –,  Montesquieu, ,  Morgan, Edward M.,  Mormons,  Muller, Jan-Werner,  Muller, Jerry Z., ,  Multinational states: in future, –, –, –; historical, –, ; political pluralism, . See also Empires Nationalism: excesses, , –; in Islamic world, ; religious, . See also Ethnonationalism Nationality: American concept, , – , , n; state law and,  National security states,  Nation-based states, , –, , –, , –n Nation-building,  Nations: as communities, , , –; definitions, , –, , –; Herder’s concept, –; with many states, –; mutual demonizing, –;

Index

relation to states, , –, , –; state-based, , , –, , –n; without states, –,  Nation-states: border changes after World War I, –; ethnically homogeneous, ; ethnic cleansing and, –, , ; halakha and, ; in Islamic world, , , –, , ; Jewish law and, –, –, –; legal systems, ; liberal, ; sharia and, –, –; sovereignty, –; use of term, –, ; WestphaliaRechtsstaat model, –, , –, n, n Nazi Germany: Holocaust, , ; laws, , ; Nuremberg tribunal, , , –, n,  Neoliberalism, ,  Neo-Platonism,  New Delhi Accord, , n New World Order: cultural pluralism, , –; multinational states, –, ; predictions, –, –. See also Globalization New Zealand, bill of rights,  Nonstate law: disembedded state law and, –; local, . See also Halakha; Religious law; Sharia Noriega, Manuel, –, , n Nuremberg tribunal, , , –, n,  Oakes, R. v., ,  Obama, Barack, ,  Orientalism, legal, ,  Ottoman Empire: courts, ; cultural pluralism, , ; downfall, , , , –; Jews in, , ; millets, , –, ; as model, –; as multinational state, –, , , –; sharia in,  Padilla v. Rumsfeld, , n, n Pakistan, population movements between India and, , , n

Index 239

Palestinian refugees, ,  Permanent Court of International Justice,  Pinochet, Augusto, –, , , , , nn–, n, n Pluralism: legal, , –, ; political, –, –. See also Cultural pluralism Poland, Germans expelled from, –, n Political liberalism: criticism of, ; cultural pluralism and, –, , , ; of Geertz, –; in United States, – Political pluralism, –, – Pol Pot,  Polygamy, , –n Population transfers: accepted by international community, –, , –, –, , –; ethnic displacement, –, ; following World War I, , , –; following World War II, –, –, , n, ; institutional practices, –; as internalization of war, n; legal norms, –, –, –; rationales, –, ; refugee repatriation, –, , , , –, –; right of return, , , , –; as war crimes, –. See also Ethnic cleansing; Refugees Positivism, , , ,  Potsdam Declaration, , n Private international law: choice of law cases, , –, , , –; comity, –; critical valence, –; lateral thinking, , ; renvoi doctrine, –; treatment of foreign law, , n Protestant Ethic, , – Protestants, , – Punishment: death penalty, –, , , n; in law of war, ; relationship to war, , , , –, –n

Qaradawi, Yusuf al-,  Quran, , , ,  Ramadan, Tariq,  Rashi, – Rasul v. Bush,  Refugee Convention, ,  Refugees: Arendt on, –; dependency, ; in Georgia, –; international law and, –; permanent displacement-, –; in post-World War II period, –; protection, –; repatriation, –, , , , –, –; rights, , , , , –, –; U.N. High Commissioner, –, –. See also Population transfers Religions: Afghani’s defense, –, ; Christianity, , –, , –; Mormonism, ; secular power and, , , –; in United States, . See also Islam; Jews Religious freedom,  Religious law, , , . See also Jewish law; Sharia Religious toleration,  Renan, Ernst, , ,  Renvoi doctrine, – Repatriation of refugees: as goal, , –; of majority group, ; right of return, , , , –, –; successful cases, –,  Reza Khan,  Rights: of Jews, –, , ; liberal view, ; of return, , , , –, –; universal, , , . See also Human rights law Riles, Annelise, , ,  Rohe, Mathias,  Roman Empire, , ,  Rome Statute, –, , n, , – Rubenstein, Kim,  Russia, war with Georgia, – Rwandan tribunal, –, , 

240

Saakashvili, Mikheil,  Said, Edward W.,  Same-sex marriages, ,  Santos, Boaventura de Sousa, ,  Sassen, Saskia, – Saunders, Cheryl,  Scandinavia, , ,  Schmitt, Carl, –, , –n Schweid, Eliezer,  Scruton, Roger, – Separation thesis,  Serbia, see Yugoslavia, former Shapiro, Haim,  Sharia: advantages, ; contemporary salience, –; courts, ; as ethical system, , , ; in Europe, ; human rights law and, ; imperialism and, , , , –, ; interpretation, , , , ; as private law, ; relationship to society, ; relations to nation-state, –, –; scholars, , ; schools of jurisprudence (fiqh), , , ; secular law and, , –, , , n; sources of law, – Shiloh, Shmuel, ,  Slaughter, Anne-Marie,  Smith, Joseph,  Social contract, –,  South Africa, Constitutional Court, ,  South Asia: comparative constitutionalism, ; population movements, , , n. See also India South Ossetia, – Sovereignty: determination of jurisdiction, –n; external, , ; of former colonies, ; human rights and, –; internal, ; national and international, , –; of people, ; of state, , –, –, –, –; supranational, , ; transfers, –; zero-sum model, , –, , , 

Index

Soviet Union: displaced people, , ; ethnic conflicts in former,  Spain: criminal code, –; indictments of foreign leaders, –n; Jewish law in, –; medieval punishments, n; Pinochet case, –, , , , nn–, n, n Spinoza, Baruch, ,  Spiro, Peter J.,  State-based nations, , , –, , –n State law, displacement of, –. See also Disembedded state law Statelessness, , ,  States: definitions, ; economic regulation beyond borders, –; extension of domestic law beyond borders, –, , –, –, –n, –n; internalization of external relations, –; legal globalization and, –, ; multinational, –, , –, –; national security, ; nationbased, , –, , –, , –n; relation to law, –; relation to nations, , –, , –; sovereignty, , –, –, –, –, –; subjects vs. citizens, ; without nations, ,  Supranational crimes,  Supreme Court, U.S.: death penalty cases, n; foreign law cited by, , , –, n; international law citations, ; military commissions and detentions rulings, , , n; opinions cited by foreign courts, –, , ,  Supreme Court of Canada, see Canada, Supreme Court of Supreme Court of India,  Supreme Court of Israel, , ,  Switzerland,  Tamanaha, Brian Z.,  Terrorism: criminal prosecutions, ,

Index 241

, n; definitions, , , , n; domestic, , ; eco-, ; international, –, , –n, n. See also War on terrorism Teubner, Gunther,  Thwaites, Rayner,  Torture, , –n Trade agreements,  Transjudicialism, see Comparative constitutionalism Transnational public law: cases, , , –, , ; cosmopolitan law and, –; glocalization, –; halakha as, , ; universalism, – Turkey: ancient homeland of Turks, ; Ataturk’s rule, , ; Case of the S.S. Lotus, ; EU membership issue, . See also Ottoman Empire Tushnet, Mark,  UDHR, see Universal Declaration of Human Rights UNHCR, see United Nations High Commissioner for Refugees United Kingdom: Abbasi v. Secretary of State for Foreign and Commonwealth Affairs, –, , , ; Court of Appeal, –, , ; Foreign Office, ; Pinochet’s arrest, , n, n. See also British Empire United Nations: Charter, , ; General Assembly, ; Security Council, , –, n; Universal Declaration of Human Rights, –, , ,  United Nations Convention against Torture, , –n United Nations Convention on the Prevention and Punishment of the Crime of Genocide, , n, –,  United Nations High Commissioner for Refugees (UNHCR), –, – United Nations Relief and Rehabilitation Administration (UNRRA),  United States: Anglo-Protestants, ,

, ; antitrust enforcement, , ; cultural pluralism, , , n; death penalty, –, , , n; exceptionalism, ; hyphenated identities, , –n; International Criminal Court and, –, –n, n, n; Justice Department, –; Khmer Rouge prosecution plans, –; national identity, , –, , n; Noriega case, –, , n; political pluralism, ; war on drugs, n, ; war on terrorism, –, n, –. See also Congress, U.S.; Supreme Court, U.S. Universal Declaration of Human Rights (UDHR), –, , ,  Universal jurisdiction, , –, , , n, n Universal law, –, –, – Unlawful enemy combatants,  UNRRA, see United Nations Relief and Rehabilitation Administration USA PATRIOT Act, , n Verbrecherstaat,  Versailles, Treaty of,  Voltaire,  Walzer, Michael, , ,  War, laws of, , , – War crimes: definitions, ; expulsions as, –; Geneva Convention, , ; laws, ; Nuremberg trials, , n; prosecutions, , ,  War on drugs, n,  War on terrorism, –; Authorization for the Use of Military Force (), , –n; constitutional authority, –; Guantanamo Bay detainees, n, –; intelligence gathering, ; military detentions and trials, , , , ; use of term, n Wars: distinction from criminal justice, ; domestic, –, , n;

242

Jewish law and, ; relationship to punishment, , , , –, –n; religious,  Wilhelm II, Kaiser,  Williams, David, – World Bank,  World Trade Organization (WTO), , , ,  World War I: population transfers following, , , –; war crimes,  World War II: Nuremberg tribunal, , ,

Index

–, n, ; population transfers following, –, –, , n,  WTO, see World Trade Organization Yisraeli, Shaul, , –,  Yugoslavia, former: ethnic cleansing, , , , ; ethnic conflicts, ; refugee repatriation,  Yugoslavia tribunal, –, ,  Zionism, , , 