Date: Mon, 17 Sep 2001 12:21:44 -0400 To: Matthew Gaylor <freematt@coil.com> From: Matthew Gaylor <freematt@coil.com> Subject: Ed Kent on And After That -- Silence? Content-Type: text/plain; charset="us-ascii" ; format="flowed"[Note from Matthew Gaylor: Ed teaches philosophy and ethics at Brooklyn College.]
Date: Mon, 17 Sep 2001 09:55:01 -0700 From: Edward Kent <ekent@brooklyn.cuny.edu> Organization: Brooklyn College, CUNY Subject: And After That -- Silence?
A fundamental misconception about the nature of the rule of law and the imposition of power seems to be at work in the Bush administration's 'war' on our terrorist 'enemies'.
Traditional models have patterned power and law as a top down hierarchical structure. Get to the head and one has got control of the body. Back, however, during the civil rights era a few of us began to recognize that power and obedience to law is rather a matter of _acceptance_ of obligations by those purportedly being ruled -- whether individuals or nations.
Our leading legal theorist, H.L.A. Hart, Professor of Jurisprudence at Oxford, in his landmark book, The Concept of Law, had pointed out that an internal sense of obligation on the part of individuals and legal institutions to obey the rules is the determining factor in their operation rather than any external threat of punishment. One cannot threaten a suicide bomber with ANY punishment!
Gidon Gottlieb, trained both in philosophy and international law, who worked covertly for a time in the background trying to achieve peace in the Middle East while he was teaching law at NYU (now Chicago?), developed what he denominated an 'acceptance' model of law which runs concurrently with the traditional top down hierarchical structures.
People and nations only obey law if and when they feel that they have an obligation to do so. Any dissident group properly placed and determined, can "veto" the vast majority. Gidon did a book on this subject which is most likely now out of print, as is my collection, Revolution and the Rule of Law, in which one can find his article, "Is Law Dead," in which he sketches this theory.
What is particularly relevant about the acceptance model of law is that it demonstrates that relatively weak parties can wreak havoc on legal-political systems, if they don't accept their rules, principles and, policies. Gidon used such examples as the Icelanders' refusal to accept the traditional 3 mile offshore limit (They were resisting British fishing close in shore.), which led to a new standard of 'territorial' offshore rights in numerous areas (oil and such). Small groups who make a concerted effort to resist a system can make an immense impact and defeat even the greatest of powers.
A more significant instance of such indirect controls of international affairs was the limit which the Peoples Republic of China placed on US incursions into North Viet Nam. The Chinese and Vietnamese were traditional enemies. North Viet Nam's support came mainly from the Soviets whom the Chinese allowed to ship materials to Viet Nam. But the Chinese also made it clear to us that while we might bomb Viet Nam as much as we liked, any incursion northward with troops would be met by massive Chinese troop counter attack entering Viet Nam from the north. We heard them and respected this limit because we had learned the hard way to take such Chinese threats seriously. In North Korea MacArthur had marched his troops northward in defiance of the same limiting threat. The Chinese counter attack over the border with a million troops and very nearly drove our armies back into the sea. We have been sent a message by the terrorists. Will we listen?
The 'acceptance' model of law as Gidon and others of us conceived it followed from the 19th century American invention of civil disobedience (Thoreau), which can be an effective response to injustice by oppressed weaker parties. Gandhi borrowed our instrumentality to drive the British out of India and Martin Luther King, Jr. used it to initiate the civil rights era, which began to end institutionalized racism in America.
The issue for us legal and political theorists in the 1970s was whether violence was justified in the pursuit of justice by oppressed groups? While coining the phrase, 'civil disobedience', Thoreau, himself, had cheered on John Brown's violent raids against the Confederates, which did much to initiate our nation's most brutal war. My collection of essays (by such as Philip Berrigan, Catholic priest and war resistor, Bobby Seale, African American resistor to racism, Herbert Marcuse, advocate of violence (sometimes) to achieve social justice, and others, was supposed to be called Dissent and the Rule of Law. Without my knowledge the editors replaced my key word with "Revolution" -- they wanted to make a big splash with the book which they published with a flaming red and yellow jacket. The line between non-violent dissent and the destruction of the World Trade Center to make a point on behalf of radical Islam may be about that accidental.
What the US now risks is that a misbegotten frontal attack upon a faceless, nameless resistance movement (e.g. bombing Afghanistan) on the assumption that this will somehow force this resistance movement to stop future attacks on us, will actually justify for its potential followers even MORE destructive extensions of the present horror. Nothing can be more foolish as a response to determined and wildly popular resistance to us among young Islamics than to attack Muslim countries blindly, thus justifying in their eyes the original attack -- and more to come! "Collateral damage"!
Unintended consequences? There are something like 1.2 billion Muslims world wide. I heard Bush use the word, "crusade" in his impromptu press conference on his return from Camp David yesterday. Does this man realize what a _crusade_ would entail in this nuclear and biogenetic era?
Our way to win this war is to persuade the world and with it the matrix of those supporting this movement that NON-VIOLENCE is the only way to go. This is ours -- the AMERICAN WAY. We can no way with our military defeat a defuse terrorist movement suicidally determined to cause us pain and suffering. We risk far greater harm than the bombing of the World Trade Center and Pentagon, as horrible as these have been. I have seen the FEMA report on terrorist hazards to NYC and there is, believe me, NO effective way to deter far worse happening here and to any other major urban center anywhere that can be targeted by a comparable band of determined young men bent on causing maximum destruction and loss of life. Allies in our war on terrorists? At your own risk!
Persuasion, not punishment, is the way to go. And I hear no eloquence emerging from the leadership of either major national party -- only tired and inappropriate slogans deriving from past wars with which they may that digging our graves! This peace can not be won by conventional war tactics -- only our own possible annihilation lies that way -- perhaps even the end of us as a species? Pakistan, if it is disrupted, possesses nuclear weapons and modern nuclear weapons can be carried across national borders in a suitcase!!! After Pakistan there is Iraq with its suicidal leader and after Iraq any nuclear plant in any nation that can be targeted with a massive jet or other weapons. And after that biological warfare can destroy any population. And after that -- silence?
Shalom/Salaam/Peace -- Ed Kent 718-951-5324 (voice mail only) Email: CollegeConversation-subscribe@Yahoogroups.com Web: http://groups.yahoo.com/group/CollegeConversation
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