Negative
1NC
The securitized justifications for legal reform of surveillance create
and sustain inequalities that destabilize nations, causing arms races,
public backlash, and crackdowns -- Only the K’s creation of informed
citizenry can challenge existing surveillance practice
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
the United States now confronts a precarious situation. Maintaining
the appearance that Madisonian institutions control the course of national security
policy requires that those institutions play a large enough role in the
decision-making process to maintain the illusion. But the Madisonians’ role is too visibly shrinking, and the
Trumanites’ too visibly expanding, to maintain the plausible impression of Madisonian governance.504 For this reason and others, public
confidence in the Madisonians has sunk to new lows.505 The Trumanites have resisted transparency far more successfully
than have the Madisonians, with unsurprising results. The success of the whole dual institutional model depends
upon the maintenance of public enchantment with the dignified/ Madisonian
institutions. This requires allowing no daylight to spoil their magic,506 as Bagehot put
it. An element of mystery must be preserved to excite public imagination. But
transparency—driven hugely by modern internet technology, multiple informational sources, and social media— leaves little to
the imagination. “The cure for admiring the House of Lords,” Bagehot observed, “was to go and look at it.”507 The public has
gone and looked at Congress, the Supreme Court, and the President, and
their standing in public opinion surveys is the result. Justices, senators, and
presidents are not masters of the universe after all, the public has
discovered. They are just like us. Enquiring minds may not have read enough of Foreign Affairs508 to assess the Trumanites’
If Bagehot’s theory is correct,
national security polices, but they have read enough of People Magazine509 to know that the Madisonians are not who they pretend to be. While the public’s
too many people will soon be too
savvy to be misled by the Madisonian veneer,510 and those people often are opinion
leaders whose influence on public opinion is disproportionate to their
numbers. There is no point in telling ghost stories, Holmes said, if people do not
believe in ghosts.511 It might be supposed at this point that the phenomenon of double government
is nothing new. Anyone familiar with the management of the Vietnam War 512 or the un-killable ABM program 513
knows that double government has been around for a while. Other realms of law, policy, and business also
have come to be dominated by specialists, made necessary and empowered
by ever-increasing divisions of labor; is not national security duality merely
a contemporary manifestation of the challenge long posed to democracy by
the administrative state-cum-technocracy?515 Why is national security
different? There is validity to this intuition and no dearth of examples of the frustration confronted by
Madisonians who are left to shrug their shoulders when presented with complex
policy options, the desirability of which cannot be assessed without high
levels of technical expertise. International trade issues, for example, turn frequently upon esoteric econometric analysis beyond the
unfamiliarity with national security matters has no doubt hastened the Trumanites’ rise,
grasp of all but a few Madisonians. Climate change and global warming present questions that depend ultimately upon the validity of one intricate computer model
The financial crisis of 2008 posed similar complexity when experts
insisted to hastily-gathered executive officials and legislators that—absent massive and immediate
intervention—the nation’s and perhaps the world’s entire financial infrastructure would face
imminent collapse.516 In these and a growing number of similar situations, the “choice” made by the Madisonians is
increasingly hollow; the real choices are made by technocrats who present
options to Madisonians that the Madisonians are in no position to assess. Why is
national security any different? It is different for a reason that I described in 1981: the organizations in question “do not
versus another.
An
unrestrained security apparatus has throughout history been one of the
principal reasons that free governments have failed. The Trumanite network holds
within its power something far greater than the ability to recommend higher import duties or more windmills or
even gargantuan corporate bailouts: it has the power to kill and arrest and jail, the power to see and hear and read
peoples’ every word and action, the power to instill fear and suspicion, the power to quash investigations and quell speech, the power to shape public
debate or to curtail it, and the power to hide its deeds and evade its weak-kneed overseers. It holds, in short, the power
of irreversibility. No democracy worthy of its name can permit that power to escape the control of the people. It might also be
supposed that existing, non-Madisonian, external restraints pose counterweights that compensate for
the weakness of internal, Madisonian checks. The press, and the public sentiment it partially shapes, do constrain the abuse of power—but only up to a point. To
the extent that the “marketplace of ideas” analogy ever was apt, that
marketplace, like other marketplaces, is given to distortion. Public outrage is notoriously fickle,
manipulable, and selective, particularly when driven by anger, fear, and indolence. Sizeable
regulate truck widths or set train schedules. They have the capability of radically and permanently altering the political and legal contours of our society.”517
segments of the public—often egged on by public officials—lash out unpredictably at imaginary transgressors, failing even in the ability to identify sympathetic
allies.518 “[P]ublic opinion,” Sorensen wryly observed, “is not always identical with the public interest.”519 The influence of the media, whether to rouse or
dampen, is thus limited. The handful of investigative journalists active in the United States today are the truest contemporary example of Churchill’s tribute to the
Royal Air Force.520 In the end, though, access remains everything to the press. Explicit or implicit threats by the targets of its inquiries to curtail access often yield
Members of the public obviously are in no position to complain
when a story does not appear. Further, even the best of investigative journalists confront
a high wall of secrecy. Finding and communicating with (on deep background, of course) a knowledgeable, candid source within an opaque
editorial acquiescence.
Trumanite network resistant to efforts to pinpoint decision-makers521 can take years. Few publishers can afford the necessary financial investment; newspapers
are, after all, businesses, and the bottom line of their financial statements ultimately governs investigatory expenditures. Often, a second corroborating source is
required. Even after scaling the Trumanite wall of secrecy, reporters and their editors often become victims of the deal-making tactics they must adopt to live
comfortably with the Trumanites. Finally, members of the mass media are subject to the same organizational pressures that shape the behavior of other groups.
They eat together, travel together, and think together. A case in point was the Iraq War. The Washington Post ran twentyseven editorials in favor of the war along
with dozens of op-ed pieces, with only a few from skeptics.522 The New York Times, Time, Newsweek, the Los Angeles Times, and the Wall Street Journal all
marched along in lockstep. 523 As Senator Eugene McCarthy aptly put it, reporters are like blackbirds; when one flies off the telephone wire, they all fly off.524
the premise—that a vigilant electorate fueled by a skeptical press
together will successfully fill the void created by the hollowed-out Madisonian institutions—is wrong.525 This premise supposes that
those outside constraints operate independently, that their efficacy is not a function of the efficacy of internal, Madisonian checks.526 But the
internal and external checks are woven together and depend upon one another. 527 Non-disclosure
More importantly,
agreements (judicially-enforced gag orders, in truth) are prevalent among those best positioned to criticize.528 Heightened efforts have been undertaken to crush
vigorous investigative journalism and to prosecute and humiliate whistleblowers and to equate them with spies under the espionage laws. National security
documents have been breathtakingly over-classified. The evasion of Madisonian constraints by these sorts of policies has the net effect of narrowing the
marketplace of ideas, curtaining public debate, and gutting both the media and public opinion as effective restraints.529 The vitality of external checks depends
Some suggest
that the answer is to admit the failure of the Madisonian institutions, recognize that for all
their faults the external checks are all that really exist, acknowledge that the
Trumanite network cannot be unseated, and try to work within the current
framework.530 But the idea that external checks alone do or can provide the needed safeguards is false. If politics
were the effective restraint that some have argued it is,531 politics—intertwined as it is with law—would have
produced more effective legalist constraints. It has not. The failure of law is
and has been a failure of politics. If the press and public opinion were
sufficient to safeguard what the Madisonian institutions were designed to protect, the story of democracy would
consist of little more than a series of elected kings, with the rule of law having frozen with the signing of Magna Carta in
upon the vitality of internal Madisonian checks, and the internal Madisonian checks only minimally constrain the Trumanites.
1215. Even with effective rules to protect free, informed, and robust expression—which is an enormous assumption—public opinion alone cannot be counted upon
to protect what law is needed to protect. The hope that it can do so recalls earlier reactions to Bagehot’s insights—the faith that “the people” can simply “throw off”
their “deferential attitude and reshape the political system,” insisting that the Madisonian, or dignified, institutions must “once again provide the popular check”
that they were intended to provide.532 That, however, is exactly what many thought they were doing in electing Barack Obama as President. The results need not
be rehearsed; little reason exists to expect that some future public effort to resuscitate withered Madisonian institutions would be any more successful. Indeed, the
added power that the Trumanite network has taken on under the Bush- Obama policies would make that all the more difficult. It is simply naïve to believe that a
sufficiently large segment of informed and intelligent voters can somehow come together to ensure that sufficiently vigilant Madisonian surrogates will somehow
be included in the national security decisionmaking process to ensure that the Trumanite network is infused with the right values. Those who believe that do not
understand why that network was formed, how it operates, or why it survives. They want it, in short, to become more Madisonian. The Trumanite network, of
course, would not mind appearing more Madisonian, but its enduring ambition is to become, in reality, less Madisonian. It is not clear what precisely might occur
should Bagehot’s cone of government “fall to earth.” United States history provides no precedent. One possibility is a prolongation of what are now long-standing
trends, with the arc of power continuing to shift gradually from the Madisonian institutions to the Trumanite network. Under this scenario, those institutions
a majority of the public remains
satisfied with tradeoffs between liberty and security; and members of a
dissatisfied minority are at a loss to know what to do and are, in any event, chilled by
continue to subcontract national security decisionmaking to the Trumanites;
widely-feared Trumanite surveillance capabilities. The Madisonian institutions, in this future, fade
gradually into museum pieces, like the British House of Lords and monarchy; Madisonians kiss babies, cut ribbons, and read Trumanite talking points, while the
Another possibility,
however, is that the fall to earth could entail consequences that are profoundly disruptive, both
Trumanite network, careful to retain historic forms and familiar symbols, takes on the substance of a silent directorate.
for the government and the people. This scenario would be more likely in the aftermath of a catastrophic terrorist attack that takes place in an environment lacking
“rally round the flag” fervor
and associated crack-down are followed, later, by an increasing spiral of recriminatory reactions and
counter-reactions. The government is seen increasingly by elements of the public as hiding what they ought to know, criminalizing what they
the safety-valve checks that the Madisonian institutions once provided. In this future, an initial
ought to be able to do, and spying upon what ought to be private. The people are seen increasingly by the government as unable to comprehend the gravity of
A
September 2013 Gallup Poll revealed that Americans’ trust and confidence
in the federal government’s ability to handle international problems had
reached an all-time low;533 a June 2013 Time magazine poll disclosed that 70% of those age eighteen to
thirty-four believed that Edward Snowden “did a good thing” in leaking the news
of the NSA’s surveillance program.534 This yawning attitudinal gap between
the people and the government could reflect itself in multiple ways. Most obviously, the
security threats, unappreciative of its security-protection efforts, and unworthy of its own trust. Recent public opinion surveys are portentous.
Trumanite network must draw upon the U.S. population to fill the five million positions needed to staff its projects that require security clearances.535 That would
be increasingly difficult, however, if the pool of available recruits comprises a growing and indeterminate number of Edward Snowdens—individuals with nothing
in their records that indicates disqualifying unreliability but who, once hired, are willing nonetheless to act against perceived authoritarian tendencies by leaving
Lacking perceived
legitimacy, the government could expect a lesser level of cooperation, if not outright obstruction, from
the general public. Many national security programs presuppose public support for their efficient operation. This ranges from
compliance with national security letters and library records disclosure under the PATRIOT Act to the
design, manufacture, and sale of drones, and cooperation with counterintelligence activities and criminal
investigations involving national security prosecutions. Moreover, distrust of government tends to become generalized; people who doubt
governmental officials’ assertions on national security threats are inclined to extend their skepticism. Governmental assurances
concerning everything from vaccine and food safety to the fairness of stock-market regulation and IRS
investigations (not without evidence536) become widely suspect. Inevitably, therefore, daily life would become more difficult.
open the vault of secrecy. A smaller, less reliable pool of potential recruits would hardly be the worst of it, however.
Government, after all, exists for a reason. It carries out many helpful and indeed essential functions in a highly specialized society. When those functions cannot be
social dislocation results. Most seriously, the protection of
legitimate national security interests would itself suffer if the public were unable to distinguish
fulfilled, work-arounds emerge, and
between measures vital to its protection and those assumed to be undertaken merely through bureaucratic inertia or lack of imagination. The government itself,
meanwhile, could not be counted upon to remain passive in the face of growing public obduracy in response to its efforts to do what it thinks essential to safeguard
The Alien and Sedition Acts in the
the Palmer Raids of 1919 and 1920;538 the round-up of Japanese-American citizens in the
1940s;539 governmental spying on and disruption of civil rights, draft protesters, and anti-war activists in the 1960s and 1970s;540 and the
incommunicado incarceration without charges, counsel, or trial of “unlawful combatants” only a few short years ago541—all are examples of
what can happen when government sees limited options in confronting nervecenter security threats. No one can be certain, but the ultimate danger posed if the system were to fall to earth in the aftermath of a devastating
national security. Here we do have historical precedents, and none is comfortably revisited.
1790s;537
terrorist attack could be intensely divisive and potentially destabilizing—not unlike what was envisioned by conservative Republicans in Congress who opposed
Truman’s national security programs when the managerial network was established.542 It is therefore appropriate to move beyond explanation and to turn to
possibilities for reform—to consider steps that might be taken to prevent the entire structure from falling to earth.
The impact is extinction
Szentes ‘8 -- Professor Emeritus at the Corvinus University of Budapest(Tamás,
“Globalisation and prospects of the world society”
4/22/08 http://www.eadi.org/fileadmin/Documents/Events/exco/Glob.___prospects_-_jav..pdf)
It’ s a common place that human society can survive and develop only in a lasting real peace. Without peace countries cannot develop.
Although since 1945 there has been no world war, but --numerous local wars took place, -terrorism has spread all over the world, undermining security even in the most developed and powerful countries, --arms race
and militarisation have not ended with the collapse of the Soviet bloc, but escalated
and continued, extending also to weapons of mass destruction and misusing enormous resources
badly needed for development, --many “invisible wars” are suffered by the poor and oppressed people, manifested
in mass misery, poverty, unemployment, homelessness, starvation and malnutrition, epidemics and poor health conditions,
exploitation and oppression, racial and other discrimination, physical terror, organised injustice, disguised forms of violence,
the denial or regular infringement of the democratic rights of citizens, women, youth, ethnic or religious minorities, etc., and last but not
least, in the degradation of human environment, which means that --the “war against Nature”, i.e. the disturbance of
ecological balance, wasteful management of natural resources, and large-scale pollution of our environment, is still going on,
causing also losses and fatal dangers for human life. Behind global terrorism and “invisible wars”
we find striking international and intrasociety inequities and distorted
development patterns , which tend to generate social as well as international
tensions, thus paving the way for unrest and “visible” wars. It is a commonplace now that
peace is not merely the absence of war. The prerequisites of a lasting peace between and
within societies involve not only - though, of course, necessarily demilitarisation, but also a systematic and gradual elimination of the roots
of violence, of the causes of “invisible wars”, of the structural and
institutional bases of large-scale international and intra-society inequalities,
exploitation and oppression. Peace requires a process of social and national emancipation, a progressive,
democratic transformation of societies and the world bringing about equal rights and opportunities for all people, sovereign participation
and mutually advantageous co-operation among nations. It further requires a pluralistic democracy on global level with an appropriate
system of proportional representation of the world society, articulation of diverse interests and their peaceful reconciliation, by non-violent
conflict management, and thus also a global governance with a really global institutional system. Under the contemporary conditions of
accelerating globalisation and deepening global interdependencies in our world, peace is indivisible in both time and space. It
cannot exist if reduced to a period only after or before war, and cannot be
safeguarded in one part of the world when some others suffer visible or invisible wars. Thus, peace requires,
indeed, a new, demilitarised and democratic world order, which can provide equal opportunities for sustainable development.
“Sustainability of development” (both on national and world level) is often interpreted as an issue of environmental protection only and
reduced to the need for preserving the ecological balance and delivering the next generations not a destroyed Nature with overexhausted
resources and polluted environment. However, no
deep international development
ecological balance can be ensured, unless the
gap and intra-society inequalities are substantially
reduced. Owing to global interdependencies there may exist hardly any “zero-sum-games”, in which one can gain at the expense of
others, but, instead, the “negative-sum-games” tend to predominate, in which everybody must suffer, later or sooner, directly or indirectly,
losses. Therefore, the actual question
is not about “sustainability of development” but rather about the “sustainability of human
life”, i.e. survival of [hu]mankind – because of ecological imbalance and globalised terrorism. When Professor Louk de
la Rive Box was the president of EADI, one day we had an exchange of views on the state and future of development studies. We agreed that
development studies are not any more restricted to the case of underdeveloped countries, as the developed ones (as well as the former
“socialist” countries) are also facing development problems, such as those of structural and institutional (and even system-) transformation,
requirements of changes in development patterns, and concerns about natural environment. While all these are true, today I would dare say
that besides (or even instead of) “development studies” we must speak about and make “survival studies”. While the monetary, financial,
and debt crises are cyclical, we live in an almost permanent crisis of the world society, which is multidimensional in nature, involving not
only economic but also socio-psychological, behavioural, cultural and political aspects. The
narrow-minded, election-
oriented, selfish behaviour motivated by thirst for power and wealth, which still characterise the political leadership almost all over
the world, paves
the way for the final, last catastrophe. One cannot doubt, of course,
that great many positive historical changes have also taken place in the world in the last century.
Such as decolonisation, transformation of socio-economic systems, democratisation of political life in some former fascist or authoritarian
states, institutionalisation of welfare policies in several countries, rise of international organisations and new forums for negotiations,
conflict management and cooperation, institutionalisation of international assistance programmes by multilateral agencies, codification of
human rights, and rights of sovereignty and democracy also on international level, collapse of the militarised Soviet bloc and systemchange3 in the countries concerned, the end of cold war, etc., to mention only a few. Nevertheless,
the crisis of the world
society has extended and deepened, approaching to a point of bifurcation that necessarily puts an end to the present tendencies,
either by the final catastrophe or a common solution. Under the circumstances provided by rapidly
progressing
science and technological revolutions, human society cannot survive unless such
profound intra-society and international inequalities prevailing today are
soon eliminated. Like a single spacecraft, the Earth can no longer afford to have a 'crew' divided into two parts: the rich,
privileged, wellfed, well-educated, on the one hand, and the poor, deprived, starving, sick and uneducated, on the other. Dangerous 'zerosum-games' (which mostly prove to be “negative-sum-games”) can hardly be played any more by visible or invisible wars in the world
society. Because of global interdependencies, the apparent winner becomes also a loser. The real choice for the world society is between
negative- and positive-sum-games: i.e. between, on the one hand, continuation of visible and “invisible wars”, as long as this is possible at
all, and, on the other, transformation of the world order by demilitarisation and democratization. No
ideological or
terminological camouflage can conceal this real dilemma any more, which is to be faced not in the
distant future, by the next generations, but in the coming years, because of global terrorism soon having nuclear and other mass destructive
weapons, and also due
to irreversible changes in natural environment.
Only blanket rejection of the law addresses its inherent inequalities
Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert,
paper presented at the Fourth Annual Conference of the Toronto Group for the Study of
International, Transnational and Comparative Law and the Towards a Radical
International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and
Tactics,
http://chicago.ssrn.com/delivery.php?ID=02409411300607909207009408308000810
20990740180370420591080920650040240011070880960741210601231190210981141
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2010094115119114091030115116030067069099083005124072124028119095091029&E
XT=pdf&TYPE=2, 06/26/15) JG
What, in this context, would a strategic objective look like? Despite the¶ previously mentioned theoretical and political
diversity in critical international¶ legal scholarship, the
common ‘organic’ analysis of
international law provides a¶ basic idea of the form such a strategic goal
might assume. !ere are two obvious¶ variants of strategy here. First, there is what we might
call the ‘idealist’ variant.¶ In this account the primary problem to be dealt with is
that the ideas of liberal¶ legalism have a hold over policy makers and the public.
Consequently, strategic¶ aim would be to recon#gure the debate in such a way that
the structural critique¶ of the mainstream would be strengthened, with the eventual
aim of constituting¶ it as a hegemonic understanding of international law.29 Second, there is a¶
materialist approach, which would stress that the material basis of the problems¶ outlined above. On this
account, one cannot understand the structuring features¶ of the law and legal
argument on their own terms, or simply as ‘ideas’. Rather,¶ they need to be
understood on the basis of ‘the material conditions of existence’¶ that is to say
those ‘de#nite and necessary relations of production that human¶ beings
enter into independently of their will’.30 As such, it is social and economic¶ forces and relationships
which generate indeterminacy, lawfare and structural¶ bias. !is means that a strategic goal would
necessarily involve overcoming the¶ social relationships that give rise to the
problems outlined above, involving action¶ to transform the material conditions of our existence.31¶
0&end=25> (visited 1 August 2011) provide a similar perspective that remains critical of¶ international law’s role in
international politics.¶ 29. David Kennedy puts this point very strongly arguing that the penetration of law into decision¶
making about war has led to an abandonment of responsibility. He therefore argues that ‘[t]¶ he way out will not be to
tinker with doctrines of the laws of force. If
there is a way forward,¶ it will require a new
posture and professional sensibility among those who work in this¶ common language. Recapturing
the human experience of responsibility for the violence of¶ war will require a professional style discouraged by the modern
interpenetration of war and¶ law’ Kennedy, ‘Of War and Law’, supra note 22, at 170.¶ 30. Karl Marx, Preface and
Introduction to A Contribution to the Critique of Political Economy¶ (Foreign Languages Press: Peking, 1976), at 3.¶ 31.
China Miéville is perhaps the most consistent and strident exponent of this position, arguing¶ that: ‘To
fundamentally change the dynamics of the system it would be necessary not
to reform¶ the institutions but to eradicate the forms of law – which means
the fundamental reformulation¶ of the political-economic system of which
they are expressions. !e project to achieve this is the¶ best hope for global
emancipation, and it would mean the end of law’ Miéville, Between Equal¶ Rights, supra note 2, at 318.¶ Strategy
and Tactics 205¶ In practical terms, of course, these are hardly mutually exclusive positions since¶ any materialist critique
relies on convincing people of its validity.32 !e point is¶ that both of these objectives are strategic and so are not directly
concerned with¶ winning arguments on the terms of liberal legalism (that is to say, whether given¶ actions would be legal
or illegal) but rather aim at overturning those very terms.33¶ 3.2. We are Strategists?
Links
Link - Congress
Congress defers to securitized discourse – They covertly defer any
‘national security’ question to Presidential war-mongers – either in
bill writing or in circumventing application
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Congress’s apparent power also vastly outstrips its real power over national
security. Similar to the Trumanites, its members face a blistering work load. Unlike the Trumanites, their work is not concentrated on the one
subject of national security. On the tips of members’ tongues must be a ready and reasonably informed answer not only to
whether the United States should arm Syrian rebels, but also whether the medical device tax should be repealed,
whether and how global warming should be addressed, and myriad other issues. The pressure on legislators to be generalists
creates a need to defer to national security experts. To a degree congressional staff fulfill this need. But few can
match the Trumanites’ informational base, drawing as they do on intelligence and even legal analysis
that agencies often withhold from Congress. As David Gergen put it, “[p]eople . . . simply
do not trust the Congress with sensitive and covert programs.”344 The
Trumanites’ threat assessments,345 as well as the steps they take to meet
those threats, are therefore seen as presumptively correct whether the issue
is the threat posed by the targets of drone strikes , by weapons of mass destruction in Iraq, or by torpedo attacks on U.S.
destroyers in the Gulf of Tonkin. Looming in the backs of members’ minds is the perpetual
fear of casting a career-endangering vote. No vote would be more fatal than
one that might be tied causally to a cataclysmic national security
breakdown. While the public may not care strongly or even know about many of the Bush
policies that Obama has continued, the public could and would likely know all about any
policy change—and who voted for and against it—in the event Congress bungled the protection of
the nation. No member wishes to confront the “if only” argument: the argument that a devastating attack would not have occurred if only a national
Like the courts,
security letter had been sent, if only the state secrets privilege had been invoked, if only that detainee had not been released. Better safe than sorry, from the
Because members of Congress are
chosen by an electorate that is disengaged and uninformed, Madison’s grand scheme of an equilibrating
separation of powers has failed, and a different dynamic has arisen.346 His design, as noted earlier,347 anticipated that ambition counteracting
congressional perspective. Safe means strong. Strong means supporting the Trumanites.
ambition would lead to an equilibrium of power and that an ongoing power struggle would result among the three branches that would leave room for no perilous
the
overriding ambition of legislators chosen by a disengaged and uninformed
electorate is not to accumulate power by prescribing policy for the Trumanites, as Madison’s model would otherwise
have predicted. Their overriding ambition is to win reelection, an ambition often
inconsistent with the need to resist encroachments on congressional power. All members of Congress
concentration of power.348 The government’s “several constituent parts” would be “the means of keeping each other in their proper places.”349 But
know that they cannot vote to prescribe—or proscribe—any policy for anyone if they lose reelection. It is not that Madison was wrong; it is that the predicate
needed for the Madisonian system to function as intended—civic virtue—is missing. As a result, Trumanite influence permeates the legislative process, often
Trumanites draft national security bills that members
introduce. They endorse or oppose measures at hearings and mark-ups. They lobby members, collectively and one-on-one. Their positions appear on
the comparative prints that guide members through key conference committee deliberations. Sometimes Trumanites draft the
actual language of conference reports. They wait outside the chambers of the House and Senate during floor
debates, ready on-the-spot to provide members with instant arguments and data to back
them up. Opponents frequently are blind-sided. Much of this activity is removed from the public eye, leading
to the impression that the civics-book lesson is correct; Congress makes the laws. But the reality is that virtually
everything important on which national security legislation is based
originates with or is shaped by the Trumanite network. Conversely, congressional influence in the
eclipsing even professional committee staff.
Trumanites’ decisionmaking processes is all but nil. The courts have, indeed, told Congress to keep out. In 1983, the Supreme Court invalidated a procedure, called
the “legislative veto,” which empowered Congress to disapprove of Trumanite arms sales to foreign nations, military initiatives, and other national security
projects.350 The problem with the concept, the Court said, was that it permitted Congress to disapprove of executive action without the possibility of a presidential
veto.351 A legislative proposal thereafter to give the Senate Intelligence Committee the power to approve or disapprove covert actions was rejected, on the grounds
Defenders of the process often claim that
congressional oversight nonetheless works.353 How they can know this they do not say.354
Information concerning the oversight committees’ efficacy remains tightly held and is seldom available even
to members of Congress, let alone the general public. “Today,” James Bamford has written, “the intelligence committees are
more dedicated to protecting the agencies from budget cuts than safeguarding the public from their transgressions.”355 Authorization too
often is enacted without full knowledge of what is being approved.356 Even when
intelligence activities such as the NSA surveillance are reported, meaningful
scrutiny is generally absent .357 Members of oversight committees typically are
precluded from making available to non-membe colleagues classified
information that is transmitted to the committees.358 This is true even if the activities in question are unlawful. Following the NSA surveillance
leaks, for example, Senator Wyden said that he “and colleagues” believed that additional, unnamed “secret
surveillance programs . . . go far beyond the intent of the statute .”359 The Senate
Armed Services Committee has “seemed generally clueless and surprised about the
legal standard”360 applied by the Executive in construing the scope of its authority under the AUMF.361 The 9/11
that the Court had ruled out such legislative controls.352
Commission was unambiguous in its own conclusions concerning the reliability of congressional intelligence oversight; the word the Commission used to described
oversight committees’ performance from the Iranian
Revolution through the mining of Nicaraguan harbors,363 the Iran-Contra affair,364 NSA
surveillance,365 and other similar episodes366 provides scant evidence to contradict the
Commission’s conclusion.
it was “dysfunctional.”362 The
*Same card, smaller version
Portraying policy as the result of a particular politician supports the
‘double government’, and hiding bureaucratic control within politics
is key. Even exceptions, when they exist, only tend to keep the public
assured that the politicians control national security policy, and never
challenge the system
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Policy is thus seen as a function of personnel rather than of institutional
structure, and policy change requires merely placing different people in office. If policy does not
change, the personnel— not the system—are to blame. The possibility that the system
might somehow select the individuals who are within it eludes the public. The public seems not to notice that numerous
senior national security offices remain vacant for months with no perceptible effect on policy.238 In the public
understanding, if the Trumanites do not act quickly enough, it is because the President is not forceful enough (even
though, in Eisenhower’s case, he was the Supreme Allied Commander in Europe who led the Normandy invasion).
Presidents simply need to issue commands more forcefully. The details and operation of double government thus remain
veiled. Nonetheless, in the United States today, as in Bagehot’s Britain, “[m]ost do indeed vaguely know that there are
some other institutions”239 involved in governance besides those established by the Constitution. But the popular
conception of an “invisible government,” “state within,” or “national security state” is off the mark. The existence of the
Trumanite network is no secret. The network’s emergence has not been the result of an enormous, nefarious conspiracy
conceived to displace constitutional government. The emergence of the Trumanite network has not been purposeful.
America’s dual national security framework has evolved gradually in
response to incentives woven into the system’s structure as that structure
has reacted to society’s felt need do not recognize the extent to which
Madisonian institutions have come to formulate national security policy in
form more than in substance. One reason that they do not is that the double government system has exceptions. For
the dual institutional structure to work, it is crucial, Bagehot believed, to
“hide where the one begins and where the other ends.”240 Overlap is required. Enough
counterexamples must exist to persuade an optimistic public that the reason for policy continuity is human, not systemic.
Thus, the counterexamples must be sufficient for the public to believe that if
they elect different people then policy will change, giving credence to the
idea that the real institutions have not lost all power in making national
security policy. Similarly, the Trumanites often include some quasi-Madisonian officers, such as the Secretaries
of State and Defense, who themselves generate deference through the same theatrical show common to the Madisonian
But they do not
do so often enough to endanger double government. The Trumanite
network makes American national security policy; it is occasional exceptions to that policy
institutions. Congress, the President, and the courts do sometimes say no to the Trumanites.
that are made by the Madisonian institutions.
The perception that politicians can remedy the deficiencies of
national security policy only feeds the disguise of double-government
- politicians real role is minimal, they cannot control it
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Although the Madisonian institutions seem to be in charge and, indeed, to be
possessed of power broad enough to remedy their own deficiencies, a close
look at each branch of government reveals why they are not. A more accurate
description would be that those institutions are in a state of entropy and have become, in Bagehot’s
words, “a disguise”—“the fountain of honour” but not the “spring of business.”241 The Presidency,
Congress, and the courts appear to set national security policy, but in reality
their role is minimal. They exercise decisional authority more in form than in substance. This is the principal
reason that the system has not, as advertised, self-corrected.242
Congress takes credit for policies which further the purpose of the
national security bureaucrats, but open confrontation undermines
the basis of both
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Creating and maintaining this illusion is not difficult. The Madisonian institutions go along with policymaking by the
Trumanites so long as it is popular, and if it is popular, their incentive is to be seen as its sponsor. Thus
with the
2001 Authorization for Use of Military Force,230 hastily enacted following the September 11
attacks, Congress positioned itself to take credit for the retaliatory actions all
knew, at least in general terms, the Trumanites were preparing. It is in the
interests of neither to clash publicly with the other. Open confrontation calls into question
both the expertise of the Trumanites as well as the seeming authority of the Madisonians. For the Madisonian institutions
to challenge the Trumanite network publicly would entail an uncertain outcome and risk a loss of credibility for both, as
occurred when Truman fired MacArthur, when Obama fired McChrystal, when the Supreme Court gave the press the
goahead to publish the top-secret Pentagon Papers, or when the Church Committee roughed up the CIA. The Madisonian
challenge to the CIA’s enhanced interrogation program ended, unsurprisingly, with a Madisonian decision to absolve the
Trumanites of all responsibility.231 In clashes such as these, both sets of institutions lose a degree of public respect, albeit
among different constituencies. Members of Congress, similarly, do have policy preferences, but their first objective is to
stay in office. Falling out of sync with the Trumanites is not a wise strategy for career longevity. Buried in the New York
Times’ reportage on the Benghazi controversy was the tip-of-theiceberg revelation that the House Intelligence Committee,
whose members needed talking points to use with reporters in discussing the attacks, asked that they be prepared by then-
Far safer is for Congress to “approve” initiatives
that, if not its own, at least appear to be.
Director of the CIA David Petraeus.232
Link - Constitutionality
The Constitution’s models of equality are flawed – its equal protection
text is standardized into limits that only serve to homogenize
oppressed groups.
Balkin 97 -
Knight Professor of Constitutional Law and the First Amendment at Yale Law
School
(Jack, "Agreements with Hell and Other Objects of Our Faith; 1/97;
digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1262&context=fss_papers, issue 65, pg
1728), “LJH”
There are many examples of these boundaries on our imagination, which themselves could form
the subject of another essay. But the one which weighs on my mind most heavily
these days is the manner in which the concept of equal protection has been
formalized into questions of fundamental right, suspect classification,
substantial burden and tiers of scrutiny. These categories see inequality as a question
of similarity and difference, view oppression as a question of individual animus, and measure
discrimination by inquiries into discreteness, insularity and immutability. This formalism
produces a doctrinal edifice worthy of a thirteenth century scholastic: It
offers us a structure that is used to consider the legal treatment of both debt
adjusters and homosexuals, tax abatements and Mexican-Americans. Not
surprisingly, it forms a procrustean bed that fails to do justice to the sociology of groups and the
construction of group identities in a culture. In the legal language of our Constitution, it is
difficult to talk about caste and stigma without wrenching them from their sociological bases and
restating them in five-part tests that manage utterly to miss the point of how status-based
injustices are perpetrated and perpetuated. Perhaps with time our law can become
more sociological. But for now the constitutional language of equality seems
to be more a method of promoting social inequality, the constitutional
language of rights seems to be more a means of inhibiting freedom, and the
constitutional language of respect for democracy seems to be more a device
for stifling the very possibility of self-governance for the vast majority of
people in this country. Moreover, even when ideas can be expressed in the existing
constitutional grammar, some are clearly unpersuasive at any given point in time, given the
political and professional consensus of opinion. If our discussions are honestly to be faithful
interpretations of the Constitution, we must shut out these implausible claims and
considerations; we must regard them as "off-the-wall" for purposes of the constitutional discourse
of fidelity.
Link - Courts
Judicial ideology is predetermined by ‘national security’ training and
vetting – Court decisions won’t gut presidential power over
surveillance, because they have vested interest in sustaining
Executive securitization – Turns the case
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
The courts Hamilton called the “least dangerous” branch,243 pose the
least danger to the silent transfer of power
judicial
appointees are selected
by those whose cases they will later hear
Before an individual is named to the federal bench,
a careful investigation takes place
The deck is stacked
nominees often come from the ranks of
national
security officials and they have often participated in the same sorts of
activities the lawfulness of which they will later be asked to adjudicate
the Supreme Court
participated directly in military
surveillance of domestic political groups
, which
from the nation’s Madisonian institutions to the Trumanite network. Federal
, and vetted along the way,
: the
Trumanites and their associates in the White House and Justice Department.
to ensure that that individual is dependable. What this means, in practice, is that appointees end up as trusted friends of the Trumanites
in matters touching upon national security. Presidents do not appoint individuals who are hostile to the Trumanites, nor does the Senate confirm them.
challenges to Trumanite policies. Judicial
from the start against
prosecutors, law enforcement, and
,
.244 A prominent
example was former Chief Justice William Rehnquist.245 Before his 1971 appointment to
by President Richard Nixon, Justice Rehnquist served as Assistant Attorney General for the
Office of Legal Counsel (“OLC”) under Attorney General John Mitchell.246 In that capacity, Rehnquist
, including the preparation of a memorandum for Mitchell in 1969 dealing with the Army’s role in the collection of
intelligence on civilians in the United States.247 He also “played a critical role in drafting the 1969 presidential order th at established the division of responsibility between the military and the Justice Department for gathering of intelligence
concerning during civil disturbances.”248 He testified before the Senate Judiciary Committee’s Subcommittee on Constitutional Rights in March 1971 that there were no serious constitutional problems with respect to collecting data or keeping
under surveillance persons who are merely exercising their right of a peaceful assembly or petition to redress a grievance.249 After his confirmation hearings to become Chief Justice, however, he wrote in August 1986 in response to written
questions from Senator Mathias that he could not recall participating in the formulation of policy concerning the military surveillance of civilian activities.250 The Senate confirmed his appointment by a vote of sixty-eight to twenty-six on
December 10, 1971.251 Shortly thereafter, the Court began considering Laird v. Tatum,252 a case involving the lawfulness of Army surveillance of civilians who were engaged in political activities critical of the government.253 Justice Rehnquist
declined to recuse himself, and the case was decided five to four.254 The result was that the case was not sent back to the trial court to determine, as the Court of Appeals had ordered, the nature and extent of military surveillance of civilian
groups.255 Instead, Justice Rehnquist’s vote most likely prevented the discovery of his own prior role and that of his Justice Department colleagues in developing the Nixon Administration’s military surveillance policy.256 Justice Rehnquist’s
case is but one example of the symbiosis that binds the courts to the Trumanite network. Justice Rehnquist was not the only member of the judiciary with Trumanite links. Other potential appointees had ample opportunity to prove their
served
for OLC and
it fell to him to pass upon the legality of proposed
covert operations
all covert actions had to be
approved by me 258 He attended daily meetings in the White House
Situation Room
and
decided what classified
documents should be made available to Congr
reliability. Justice Antonin
Scalia
, before his appointment to the Supreme Court, also
as Assistant Attorney General
also was appointed initially by President Nixon.257
During his tenure from 1974 to 1977 at OLC, Scalia later recalled,
by the intelligence community: “believe it or not, for a brief period of time,
.”
with Director of Central Intelligence William Colby
other top intelligence officials and
ess.259 He was the legal point-person in dealing with congressional requests for information on
intelligence matters; on behalf of the Ford Administration he asserted executive privilege before a House investigating committee when it recommended that Henry Kissinger be cited for contempt of Congress for failing to produce classified
documents concerning U.S. covert operations abroad.260 Justice Samuel
Alito is a former captain in the Army Signal Corps
before
, which
manages classified communication systems for the military. He later became an Assistant U.S. Attorney, prosecuting drug and organized crime cases, and then an assistant to Attorney General Ed Meese
moving to OLC
. There he worked, as he put it, to “increase the power of the executive to shape the law.”261 He was nominated to be a feder al court of appeals judge in 1990 by President (and former Director of
Central Intelligence) George H. W. Bush. Once confirmed, Judge Alito established his reliability by voting against the daughters of civilians killed in a military plane crash to uphold the government’s refusal to show a federal judge the official
accident report, on grounds of the state secrets privilege.262 Chief Justice John Roberts was a law clerk for Justice Rehnqui st.263 In that capacity he reportedly264 contributed significantly to the preparation of Rehnquist’s opinion in Dames &
Moore v. Regan,265 in which the Court upheld the Executive’s power to extinguish pending law suits by Americans seeking compensation from Iran for property seized by the Iranian government.266 He moved on to the Justice Department and
then President Reagan’s White House Office of General Counsel, where he drafted a letter for the President responding to retired Justice A rthur Goldberg, who had written Reagan that the U.S. invasion of Grenada was of doubtful
constitutionality.267 Roberts wrote in the reply that the President had “inherent authority in international affairs to defend American lives and interests and, as Commander-in-Chief, to use the military when necessary in discharging these
responsibilities.”268 Roberts’s memos, Charlie Savage has reported, “regularly took more extreme positions on presidential power than many of his colleagues.”269 Appointed to the U.S. Court of Appeals for the District of Columbia in 2003,270
Roberts, like Alito
voted to uphold
tribunals
(which the Supreme Court overturned in Hamdan v. Rumsfeld,272 a
decision in which Roberts recused himself)
, further confirmed his reliability. He
the system of military
established by the Bush Administration271
273 and to uphold the power of the President, pursuant to statute, to prevent the courts from hearing
certain lawsuits (in that case, brought by members of the U.S. military who had been captured and tortured during the Gulf War).274 It might be thought that these and other similarly inclined judges who adhere to views congenial to the
Trumanite network have been appointed not because of Trumanite links but because of their judicial philosophy and particular interpretation of the Constitution—because they simply believe in a strong Executive Branch, a viewpoint that
appointing Presidents have found attractive. Justice Scalia seemingly falls into this category.275 As Assistant Attorney General he testified twice before Congress in opposition to legislation that would have limited the President’s power to enter
into sole executive agreements.276 In judicial opinions and speeches before his appointment to the Supreme Court he frequently expressed opposition to judicial involvement in national security disputes. “[J]udges know little”277 about such
issues, as he wrote in one such case decided while he was a member of the U.S. Court of Appeals for the District of Columbia.278 He argued again for deference in another national security case that came before that court that raised claims of
“summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.”279 It was brought by plaintiffs that included twelve members of Congress, who argued violations of the Constitution,
War Powers Resolution,280 and the Boland Amendments281 (which cut off funds for the activities at issue).282 Judge Scalia refused to hear arguments on the merits; where a policy had been approved by “the President, the Secretary of State,
After appointment to the Supreme Court,
Scalia supported the executive-oriented approach to treaty interpretation
that Reagan
relied upon in
the ABM
treaty
the Secretary of Defense, and the Director of the CIA,” he wrote, discretionary relief is inappropriate.283
his
Justice
the
Administration
arguing that deployment of a space-based anti-ballistic missile (“ABM”) system would not violate
(referring in his opinion to various Washington Post articles on the controversy).284 Later, in Rasul v. Bush,285 the Court’s majority held that federal district courts may exercise jurisdiction under the federal habeas statute to
hear claims by foreign nationals detained by the United States. Justice Scalia dissented, denouncing the majority for “judicial adventurism of the worst sort.”286 In Hamdan v. Rumsfeld,287 the majority held that a military commission
established by the Executive lacked power to try the defendant; Justice Scalia dissented again, insisting that that conclusion was “patently erroneous.”288 In Boumediene v. Bush,289 the majority held that the defendant, a foreign national, had a
Scalia expressed concern in a 2013 speech
that the lawfulness of NSA surveillance could ultimately be decided by
judges—“the branch of government that knows the least about the issues in
question, the branch that knows the least about the extent of the threat
against which the wiretapping is directed
Trumanites’ actions are at
issue, submissiveness, not second-guessing, is the appropriate judicial
posture.
People tend to end up in organizations with missions
compatible with their worldview
constitutional privilege of habeas corpus; again Justice Scalia dissented. It came as no surprise when Justice
.”290 When the
It is of course true that Justice Scalia and other such judges were and are appointed because of their judicial philosophy. The cause of their beliefs, however, is as irrelevant as it is unknowable; whatever the cause, the
effect is the same—they are reliable supporters of the Trumanites.
larger
, just as people once in an organization tend to adopt a worldview supportive of their organization’s mission. Position and judicial
philosophy both are indicia of reliability. The question is not why a potential judicial appointee will come down the right way. The question is whether the appointee might reasonably be expected to do so. It might also be argued that these
justices were not sufficient in number ever to comprise a majority on the Supreme Court.
votes can be decisive
national security cases
members of the F I
S
In an era of
increasingly
close decisions
, however,
one or two
, and it must be remembered that this cursory review embraces only the Supreme Court; numerous district and appellate court judges with ties to the Trumanite network also
adjudicate
oreign
ntelligence
the eleven
. This group includes, most prominently, the closest that the nation has to a national security court291—
urveillance
C Th
ourt.
e court, or
FISC
as it is commonly called, was established in 1978 to grant warrants for the electronic surveillance of
suspected foreign intelligence agents operating in the United States.292 Each judge is selected by the Chief Justice of the Supreme Court from the pool of sitting federal judges.293 They are appointed for a maximum term of seven years; no
further confirmation proceedings take place, either in the Senate or the Executive Branch.294 The Chief Justice also selects a Chief Judge from among the court’s eleven judges.295 All eleven of the sitting judges on the FISC were selected by Chief
Justice John Roberts; ten of the eleven were initially appointed to the federal bench by Republican presidents.296 A study by the New York Times concluded that since Roberts began making appointments to the court, 50% have been former
FISC
is absent
FISC opinions
are rarely
available
All of
the structural pressures that keep a judge independent are missing there
“The FISC is forced to rely
upon the accuracy of the info
provided
The FISC does
not have the capacity to investigate issues of noncompliance
Executive Branch officials.297 Normally, of course, courts proceed in public, hear arguments from opposing counsel, and issue opinions that are available for public scrutiny. Not so with the
proceedings are closed
to the public.298
The adversarial system
. All of its
integral to American jurisprudence
. Only
government lawyers appear as counsel, unanswered by any real or potential adverse party.299 The FISC has pioneered a two -tiered legal system, one comprised of public law, the other of secret law.
—
even redacted portions of opinions that address only the FISC’s interpretation of the constitutional rights of privacy, due process, or protection against unreasonable search or seizure—
to the public.300 Nancy Gertner, a former federal judge in Massachusetts, summed up the court: “The judges that are assigned to this court are judges that are not likely to rock the boat . . . .
. It’s one-
sided, secret, and the judges are chosen in a selection process by one man.”301 The Chief Judge of the FISC candidly described its fecklessness.
rmation that is
to the Court,” said Chief Judge Reggie B. Walton. “
, and in that respect the FISC is in the same position
as any other court when it comes to enforcing [government] compliance with its orders.”302 The NSA’s own record proved him correct; an internal NSA audit revealed that it had broken privacy rules or overstepped its legal authority thousands
of times since 2008.303 The judiciary, in short, does not have the foremost predicate needed for Madisonian equilibrium: “a will of its own.”304 Whatever the court, judges normally are able to find what appear to the unschooled to be sensible,
settled grounds for tossing out challenges to the Trumanites’ projects. Dismissal of those challenges is couched in arcane doctrine that harks back to early precedent, invoking implicitly the courts’ mystical pedigree and an aura of politicstranscending impartiality. But challenges to the Trumanites’ projects regularly get dismissed before the plaintiff ever has a chance to argue the merits either before the courts or, sometimes more importantly, the court of public opinion. Try
challenging the Trumanites’ refusal to make public their budget305 on the theory that the Constitution does, after all, require “a regular statement and account of the receipts and expenditures of all public money”;306 or the membership of
Members of Congress in the military reserve307 on the theory that the Constitution does, after all, prohibit Senators and Representatives from holding “any office under the United States”;308 or the collection of phone records of the sort given
by Verizon to the NSA on the theory that the law authorizing the collection is unconstitutional.309 Sorry, no standing, case dismissed.310 Try challenging the domestic surveillance of civilians by the U.S. Army311 on the theory that it chills the
constitutionally protected right to free assembly,312 or the President’s claim that he can go to war without congressional approval313 on the theory that it is for Congress to declare war.314 Sorry, not ripe for review, case dismissed.315
Try
challenging the introduction of the armed forces into hostilities
Sorry, political question, non-justiciable, case dismissed. Try
challenging the
refusal to turn over relevant
evidence
Sorry, state
secrets privilege, case dismissed.
in violation of the War Powers
Resolution.316
317
Trumanites’
and material
about an Air Force plane accident that killed
three crew members through negligence,318 or about racial discrimination against CIA employees,319 or about an “extraordinary rendition” involving unlawful detention and torture.320
321 Sometimes the courts have no plausible way of avoiding the merits of national security challenges. Still, the Trumanites win. The courts
eighty years ago devised a doctrine—the “non-delegation doctrine”—that forbids the delegation of legislative power by Congress to administrative agencies.322 Since that time it has rarely been enforced, and never has the Court struck down any
delegation of national security authority to the Trumanite apparatus.323 Rather,
approval
judges stretch to find “implied” congressional
of Trumanite initiatives. Congressional silence, as construed by the courts, constitutes acquiescence.324 Even if that hurdle can be overcome, the evidence necessary to succeed is difficult to get; as noted earlier,325
the most expert and informed witnesses all have signed nondisclosure agreements, which prohibit any discussion of “classifiable” information without pre-publication review by the Trumanites. As early as 1988, over three million present and
former federal employees had been required to sign such agreements as a condition of employment.326 Millions more have since become bound to submit their writings for editing and redaction before going to press. And as the ultimate trump
card, the Trumanites are cloaked in, as the Supreme Court put it, “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as
a basis for its exercise an act of Congress.”327 The basis of their power, the Court found, is, indeed, not even the Constitution itself; the basis of Trumanite power is external sover eignty—the membership of the United States in the community of
nations, which confers extra-constitutional authority upon those charged with exercising it.328 As is true with respect to the other Madisonian institutions,
instances in which the judiciary has poached
there are, of course,
on the Trumanites’ domain. The courts rebuffed an assertion of the commander-in-chief power in
ordering President Truman to relinquish control of the steel mills following their seizure during the Korean War.329 Over the Trumanites’ objections, the courts permitted publication of the Pentagon Papers that revealed duplicity, bad faith, and
The Supreme Court did overturn military commissions set
up to try enemy combatants for war crimes
Enough apparent counterexamples exist to preserve the
façade. Yet the larger picture remains valid
ineptitude in the conduct of the Vietnam War.330
,331 and two years later found that Guantánamo detainees had unlawfully been denied habeas corpus
rights.332 Personnel does sometimes matter.
. Through the long list of military conflicts initiated without congressional approval—Grenada, Panama,
Kosovo, and, most recently, Libya—the courts have never stopped a war, with one minor (and temporary) exception. In 1973, Justice William O. Douglas did issue an order to halt the bombing of Cambodia333—which lasted a full nine hours,
until the full Supreme Court overturned it.334 The Court’s “lawless” reversal was effected through an extraordinary telephone poll of its members conducted by Justice Thurgood Marsh all. “[S]ome Nixon men,” Douglas believed, “put the
Seldom do judges call out even large-scale constitutional
violations that could risk getting on the wrong side of an angry public, as
American citizens of Japanese ethnicity discovered during World War II.
Whatever the cosmetic effect, the cases
freed, at best, a tiny handful
pressure on Marshall to cut the corners.”335
four
336
representing the Supreme Court’s supposed “push-back” against the War on Terror during the Bush Administration
of detainees.337 As of 2010 fewer than 4% of releases from Guantánamo followed a judicial release order.338 A still-unknown number of individuals,
numbering at least in the dozens, fared no better. These individuals were detained indefinitely— without charges, based on secret evidence, sometimes without counsel—as “material witnesses” following 9/11.339 One can barely find a case in
which anyone claiming to have suffered even the gravest injury as the result of the Bush-Obama counterterrorism policies has been permitted to litigate that claim on the merits—let alone to recover damages. The Justice Department’s seizure of
Associated Press (“AP”) records was carried out pursuant to judicially-approved subpoenas, in secret, without any chance for the AP to be heard.340 The FISC 341 has barely pretended to engage in real judicial review. Between 1979 and 2011, the
court received 32,093 requests for warrants. It granted 32,087 of those requests, and it turned down eleven.342 In 2012, the court received 1,789 requests for electronic surveillance, one of which was withdrawn. All others were approved.343 The
occasional counterexample notwithstanding, the courts cannot seriously be considered a check on America’s Trumanite network.
The courts fail at their sole purpose – judicial review is flawed when
applied to the American bureaucratic model
Frug 97 - Louis D. Brandeis Professor of Law at Harvard Law School(Gerald, “THE
IDEOLOGY OF BUREAUCRACY IN AMERICAN LAW”, 97 Harv. L. Rev 1276, pg 13521353), “LJH”
A similar process has occurred in response to the effort to find a role for the courts in reviewing bureaucratic procedures.
Judicial intervention to enforce procedural norms has been met,
particularly in administrative law, by changes in the nature of bureaucratic
procedures. Procedures have been altered to allow an increasingly wide range of participation by those affected by
the bureaucratic decisionmaking. As this opening process has progressed, procedures
have become so "legislative" and "political" in character that judicial
oversight pursuant to a trial-like model of the legal process no longer seems
appropriate. Once the process is sufficiently open to permit the expression of some political consensus, the
rationale for a judicial role in assessing bureaucratic procedures virtually disappears. Here too, the effort to
create judicial review of organizational procedures has resulted in its own
undoing. This description of the emergence and decline of the judicial review model suggests two different versions of
the next historical stage. One is a revised form of the expertise model, in which greater technical support for
administrative factfinding and an increased role for superexperts and disinterested directors in corporate decisionmaking
replace the courts as the basis of bureaucratic legitimacy. The
role of the courts as the source of
independent oversight over the bureaucracy would thus be affirmed,
negated, and transcended by the emergence of true experts who would
assume the courts' role. I have outlined a critique of this image of the future in the Section on the expertise
model. The second version focuses on the emergence of widespread participation in the bureaucratic process through
political participation or market mechanisms; once these participatory processes are fully in place, the implied consent of
these participants would form the basis of bureaucratic legitimacy. In this view, the courts' role in affixing the legitimating
imprimatur on bureaucratic decisionmaking would be assumed by the constituents themselves.
Subjugation is unavoidable in law, judges are forced to be arbitrary
even in cases where reason is to be found
Kennedy 03 - Carter Professor of Jurisprudence at Harvard (Duncan, Pierre Schlag's The
enchantment of reason, duncankennedy.net/documents) "LJH"
All you will be able to do is embrace an ethic of consequences, knowing full well that it is very possible that whatever you
do is likely to have the opposite consequences from those on which you acted- You are obliged to use violence when worse
consequences follow from not using it, even though its use endangers -them salvation of your soul' (even if you are and
atheist) We will admire you have the .`madly" quality of finally saying, alter doing your best toe reasons it all out. "I can do
no ether.- But we will be admiring your "manly" quality. not your capacity to correctly determine the universalizable
maxim that should be applied to the situation in hands."
In the condition of modernity, critical
reason obliges the decision maker to accept that he decides under
conditions of disenchantment that put him in moral jeopardy without any
possibility of getting out of jeopardy through reason. Luck and genius are the only hopes.
each dependent on an irrational commitment to one's -vocation." The satisfying thing about Weber’s narrative of
disenchantment is that it is about (almost) all of social life, notably including religion, science, economic life, politics,
family life, sex, and art. Perhaps
the most cleanly "wrong" thing about it is that he
refuses to apply it to law. He is antinomian and decisionist in the tradition
of Pascal and Dostoievski and Kierkegaard, but thinks law has been reduced
to a science (albeit a science subordinate to legislation, unlike the American
legal science whose pretensions to rule are Pierre's subject.) Virtually all
American legal thinkers are struggling with the now obvious relevance to
law of disenchantment in other domains. Whatever is happening in law is
much more comprehensible if we put it together with Weber’s narrative for
religion, polities, sex, economics, art, and so on. Disenchanting law forces us to recognize a little more than we already do,
by adding law to Weber's list, that we
are subject to the arbitrariness of others, in this
case judges. And it works this way for law. We are pushed to acknowledge that
we probably won’t he able to avoid subjecting others to our own
arbitrariness, even in many cases in which we had hoped to be able to find B
rational warrant for our choices.within regimes of rules that give us
decision making power, and that it pushes toward a kind of anarchism: there is no possibility of a legalist
excuse for not doing what conscience commands, or of a legalist excuse for doing what conscience forbids (even if you are
a judge), But here we must understand conscience not as Pierre initially describes it. as an "alternative source of belief'
whose substance is ethics understood as substantive moral theory.'3 Rather, it is his last version: Sometimes. -the internal
perspective" or "good judgment" or "con-science" are simply offered as names for the subjective power ford powers) that
produces law. In this capacity they serve a very modest, but nonetheless useful role. Indeed. it is helpful to have names for
the answer—to denote what is unknown and needs to be investigated. It is a convenient thing to have a name for the
answer. Here's one: -Them Desirable XI"" Liberation has nothing to do with irresponsibility or nihilism or being able to do
whatever you want to, Quite the contrary. it means a rather sinister version in which you are responsible and have to take
the consequences of your own calculus of consequences for others, without a method beyond trying your best to figure out
-The Desirable X." To my mind. once one takes into account the general Liberian narrative of disenchantment, the
innocent motives for embracing reason as enchantress in law are bleaker than they appear in Pierre`s narrative (because
he so completely decontextualizes law). This makes the guilty motive (popular belief in the rule of reason in law empowers
legal thinkers) seem all the more important, and all the more guilty. But let me hasten to add that critical reflexivity,
hoping paradoxically to set up new helpful rational grids, must be brought to a halt just at the not-rationally-knowable-inadvance moment when it is about to become "pathological."
Link – Democracy
The aff posits democracy as the gateway to liberal peace. This is a
false promise—even if transitions are feasible in theory, neoliberal
institution-building through their discursive frameworks leads to
backsliding—empirics go neg
Oliver RICHMOND IR and Director of Centre for Peace and Conflict Studies @ St.
Andrews 2009 [New Perspectives on liberal peacebuilding eds. Newman, Paris &
Richmond p. 59-63]
Backsliding: Emerging problems with the liberal peace The liberal peace
offers a blueprint and process for stabilizing postconflict societies. Yet it has
shown a marked propensity for backsliding. In cases including Cambodia,
the Middle East, Sri Lanka, Lebanon, Kosovo, Bosnia and Timor-Leste,
direct or indirect attempts have been made through donor conditionality,
arrangements with the World Bank, or diplomatic and strategic relations to instil
democratization, pluralism, the rule of law, human rights and neo-liberal
forms of marketization. Broad agreement on these terms is normally apparent
amongst peacebuilders, which I have previously described as a weak "peace building consensus" about the liberal peace,26 and local
actors often nominally join this consensus. Yet, in comparative work in a number of cases, research
indicates that, despite the construction of liberal conditionality and
institutions, little changes in the discursive political frameworks in postconflict settings. Nationalists in Bosnia still threaten the unity ofpost-Dayton Bosnia and few reforms have been
internalized. In Kosovo, ethnic violence is a regular occurrence and ethnic
difference looks set to be the basis for the state that will emerge from the
recent declaration of independence. In Timor-Leste, political and
socioeconomic problems led to the complete collapse of the liberal state in
2006, four years after the United Nations withdrew and independence was achieved. Recent moves in Timor-Leste have seen welfare and cultural issues
placed at the forefront of political debate (and a concurrent stabilization). 2 7 The liberal international " bubble" in
Afghanistan barely covers all of Kabul. In many of these cases, a "draw-down" is currently taking place, but there is
little indication that what has been achieved is self-sustainable.28 Kant was clear that his perpetual peace system would not advance progressively, but would be
subject to attacks, obstacles and problems, both internally and externally. It is also important to note that Kant believed that his system needed to be able to
conduct peaceful relations with nonliberal others and should not be used as an excuse for hegemonic practices or wars with such others. It should not become a
basis for new and exclusionary practices, as Macmillan argues, against non-liberal others. 29 Any hope of developing a broader peace in these terms therefore
requires a broader engagement than is often projected by theorists of the democratic peace—in other words, more liberalism, not a reversion to illiberalism in the
hope it will avert any "backsliding". Thus, Kantian approaches to peace required a focus not just on democracy and trade but also on the broader root causes of
conflict, including welfare and culture. 30 In this way, Kant was not merely a pillar of his establishment but actually sought to unsettle the comfortable
assumptions that his own thinking might lead to, though he also extended Rousseau's thinking on peace by favouring democracy.31 So, extending this line of
thought, backsliding for Kant was more than just a structural obstacle; it was also representative of the failure of the putative " liberal" polity to encounter the other
Kant would not have
wanted to see the democratic peace argument, for example, become a reason for
colonialism or imperialism redux, as J ahn has shown.32 Backsliding is as much about
post-conflict polities failing to achieve and maintain liberal standards as it is
about a peace building consensus being imposed with little regard for the
"local" and indigenous and, of course, with simplistic assumptions about the
universality and transferability of technical and contextual solutions for
peace. It also points to the need for a move beyond liberalism. Institutional responses to the problems of liberal peacebuilding often focus on coordination
in a reflexive and pluralist manner, without reverting to coercive and conditional hegemonic engagement.
and efficiency in peace building operations, rather than on the deeper issues that have also appeared. These are as follows. As Mann and Snyder have argued,
democratization can lead to ethnic polarization and even genocidal violence . 33 Certainly, such
polarization has occurred in Bosnia and Kosovo. Liberal human rights can be culturally inappropriate or
contested, as can be seen in cultural settings where communities, tribes or clans, rather than individuals, are the unit of analysis, as in much of sub-Saharan Africa,
The rule of law can mask inequity and the privatization of state
functions at the expense of the needy , as appears to be the case across all peacebuilding interventions, where subsistence
and unemployment rates rarely improve. 35 Civil society building is often subject to "forum
shopping" and an instrumentalist project mentality rather than looking at
localized needs. Development, in its neo-liberal or modernization forms, can
marginalize the needy.36 Indeed, because liberal peace building is more or less always imagined within a liberal and neo-liberal
state framework, it can become an agent of ethnocentric self-determination, nationalism and a "bare"
socioeconomic life because such states cannot compete internationally in an
open market. This emergence of bare life for citizens means that the aspired-to liberal social contract between government and citizen is not
the Pacific or Asia. 34
achieved, and, indeed, citizens may choose to move into grey or black markets, militias or transnational crime. 37 These unintended dynamics are major sources of
backsliding and can be observed across a range of peace operations since the end of the Cold War. Do these criticisms mean that the liberal peace is a failed project,
it is a topdown project, promoted by an alliance of liberal, hegemonic actors. The peacebuilding
or is it merely suffering from stress and can be salvaged? The editors of this volume disagree significantly on this point. Quite clearly
consensus behind it is broad, but the liberal peace project is under considerable strain because it does not deliver all that it promises in conflict zones. What is
more, it is onto logically incoherent, which is reflected in its coordination. It offers several different states of being—for a state-centric world dominated by
sovereign constitutional democracies, a world dominated by institutions, a world in which human rights and selfdetermination are valued. The only way in which
this peace system can be coherent is if it is taken to be hierarchical and regulative, which then provides the framework in which human rights and self-
Democracy provides the political system in which this
process is made nationally representative. The trouble with this is that the
individual is subservient to the structure and system, which may be enabling in some contexts but not
in others. Where enforcement and surveillance are weak, abuses generally follow
and are committed by the elites who control the various systems that make
up the liberal peace. This means that the post-conflict individual, who is relatively powerless,
is required to perform "liberal peace acts", such as voting, paying taxes,
engaging in the free market and expecting rights, in order to keep the
international gaze satisfied, but is not to expect that this performance
carries any weight. The liberal peace is easily rendered virtual or hyperreal;
the copy does not represent the actual intention of the international
community. Thus the liberal peace becomes a virtual peace; more strongly associated with conservative forms of liberalism and underpinned by
realist theory. In this sense the liberal peace produced by realist and idealist thinking, and even in the contexts of constructivism and critical
theory, is virtual and is constructed primarily for the benefit of the international
community, in the hope that locals will benefit later when it becomes internalized and the local is 'converted'. Post-structuralist contributions to
determination can be observed.
international relations theory, which turn this process on its head and argue for the recognition, contextualization, emancipation and de-securitization of the
mainstream debates have even managed to coopt aspects of the post-structural agenda—in particular the requirements for emancipation, empathy and
care (but not the recognition of alterity)—into the mainstream consensus,
producing an emancipatory form of liberalism, at least in rhetorical terms. The
individual, fail to offer a way out of this impasse. Indeed, the
international and academic consensus on the liberal peace across the board has been achieved on the assumption that its norms and governance frameworks are
universal. But this conclusion has been reached only on the basis of a limited consultation, mainly among the victors of the Second World War. Unfortunately, as is
this conversation has reinforced and favoured the hegemony of
official actors, key states and their organizations, and has resulted in the relative
marginalization of non-state actors, developing states, postcolonial states,
individuals, communities and other identity groupings. This can also be described as a form
of orientalism, in which liberal epistemic communities of peacebuilders
transfer governance regimes through a process of conditional funding,
training and dependency creation to more " primitive" recipients in conflict
zones. This process is supported by the ideological hegemony of
contemporary forms of liberalism, which are projected through the various mediums of print capitalism as
unassailable. They aim to make recipients internalize the liberal peace while contradictorily gaining agency and autonomy. There are a number of
reasons why this has not worked. First, despite the fact that the Cold War is over, there is a varying resistance to the
different ideological aspects and basic assumptions of this liberal peace. Though
well known,
most accept that democratization should be a cornerstone of political organization, parts of the Middle East, South Asia and subSaharan Africa are led by
governments that do not aspire to democracy. This is not to say that the populations of these regions do not aspire to democratic self-determination, but
democratic aspirations are very often closely linked with secessionist aspirations and state creation where identity minorities desire separation in order to avoid
Democratization has been shown regularly to result in only a
softening of feudal or corrupt politics rather than radical reform. Many across the
world aspire to free markets and unfettered trade, but the vast majority of the populations
affected by war and conflict are economically disadvantaged because of both war
and free trade. Many more see the international political economy as redistributing resources in favour of the elites that drive the neo-liberal
minority status.
character of the liberal peace, meaning that neo-liberal economic policies generally disadvantage the already marginalized. Many resist the neo-liberal
development strategies that accompany the liberal peace. Some resist the universal claims of the human rights rhetoric. Many traditional elites have adopted what
local elites use the institutions and
dynamics of the liberal peace to their own advantage by literally freeriding
on the resources that it provides and by only partially implementing its
demands. In this sense, the liberal peace agenda is driven by a neo-liberal notion of power—money and resources can be used to induce institutional
development and reform in conflict zones. Local elites often use this to camouflage the lack of reform.
van der Walle has called the " partial reform syndrome",38 in which
Much of the critical focus on this liberal version of peace, however, is on how it concentrates on institutions, officialdom and top-down reform, and thus results in
the creation of "empty states" in which citizens are generally not seen or heard. In fact, there has been a major attempt to engage with this problem in order to
identify and empower isolated and marginalized groups in post-conflict zones, and indeed to provide every citizen with rights and agency as befits their status in
the liberal peace. Yet, inevitably, this has been a troubled process, far outweighed by the more traditional assumption that, if one builds institutions first, then
every other aspect of the liberal peace will automatically fall into place. This, of course, means that most energy is expended on the top-down model of the liberal
peace. Some, such as Ignatieff, have called this a "rough and ready peace";39 others, such as Fukuyama, have argued that this in effect results in the destruction of
what little local or indigenous capacity was already in existence.4o In other words, the liberal peace agenda is far from uncontested, coherent or proven in practice.
It is marked by local co-option, backsliding and international unease.
Link -Drones
Focuses on the legality of various forms of surveillance normalizes
surveillance policy
Jones ’13 -- Lecturer and PhD Candidate in the Department of Geography at
the University of British Columbia (September 30, Craig, “RESEARCH
UPDATE – METHOD IN THE MADNESS?,”
https://warlawspace.wordpress.com/2013/09/30/research-update-method-in-themadness/, DWB)
I am putting all of this (and much more) together to ask a different kind of question at once practical yet also political and philosophical:
what effects do the military lawyer and operational law have on the
targeting process? This Foucauldian inspired question seeks to understand the
functioning of a legal practice and of certain legal experts in the production
of a discourse which we might broadly characterize as the ‘judicialization of
war’. As legal questions have come, more and more, to dominate discussions about
war, I think it is worth pausing to reflect on the consequences and to ask at what cost have legal questions come to the fore? The
problem with law (though clearly not everyone sees it as a problem) is that it confers legitimacy
and at the political level, this legal-legitimate amalgam has come to stand in
for the other questions we might be asking about war; not ‘is it legal?’ but
rather ‘is it right?’ or more simply, ‘why war?’ Military lawyers are not stupid people and modern
militaries are not the buffoons they may once have been; both are attuned to and tune into how publics perceive what they do, hence why
the Israeli military have become social media fanatics. To paraphrase Foucault, and to borrow from Derek Gregory, modern
militaries have become obsessed with the ‘conduct of their conduct’. This means
that they are surprisingly reflective and reflexive about what they do and how it is represented. Representing war – or
targeted killing – as legal provides lethal action with a skein of legitimacy, but
what difference does the law make, and on what difference is international law founded? For, and at my most provocative I ask, what
difference does it make to the victim of a drone strike whether or not the
strike was legal? The answer for a legalistic discourse of war is that many never stop
to consider that there is something beyond the law.
Drone policy is prime case for bureaucrat control of policy
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
The drone policy has been a case in point. Nasr has described how the
Trumanite network not only prevailed upon President Obama to continue
its drone policy but succeeded in curtailing discussion of the policy’s
broader ramifications: When it came to drones there were four formidable unanimous voices in the
Situaton Room: the CIA, the Office of the Director of National Intelligence, the Pentagon, and
the White House’s counterterrorism adviser, John Brennan. Defense Secretary Robert Gates . .
. was fully supportive of more drone attacks. Together, Brennan, Gates, and the others
convinced Obama of both the urgency of counterterrorism and the imperative of viewing America’s engagement with the
Middle East and South Asia through that prism.
Their bloc by and large discouraged debate
over the full implications of this strategy in national security meetings.392
What Nasr does not mention is that, for significant periods, all four voices were hold-overs from the Bush
Administration….
Link - FISA
FISA courts over rely on outdated legal structures. These systems are
flawed and rely on legalistic ideals.
Schlanger ’15 -- Henry M. Butzel Professor of Law at University of Michigan (Margo,
Harvard National Security Journal, “Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,” Vol. 6, 124-129, DWB)
As originally enacted, FISA made two key innovations, both highly legalizing. First, the Act
subjected all domestic foreign intelligence surveillance, and some such surveillance abroad, to analogues of domestic warrant procedure.
Surveillance of covered communications would have to be authorized by a
judicial officer—under FISA, a federal district judge appointed by the Chief Justice to the FISA Court—after the
government demonstrated probable cause for the surveillance. Second, FISA introduced
the idea of “minimization procedures”—rules “designed to protect, as far as reasonable, against
the acquisition, retention, and dissemination of nonpublic information
which is not foreign intelligence information”41 that “concern[s]
unconsenting United States persons.” The statutory “heart of minimization under FISA” is the requirement
that surveillance and retention processes be “reasonably designed . . . to minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United
States to obtain, produce, and disseminate foreign intelligence information.”44 The FISA warrant requirement was, of course, borrowed
from American criminal procedure. But the
requirement of minimization procedures is far
less familiar—indeed, it deviates foundationally from nonintelligence Fourth Amendment doctrine. In American criminal
procedure, once the government gains lawful access to personal information, that
information can usually be used for any lawful purpose—including purposes that would have
invalidated the original access. So the government is authorized to search airplane travelers without any individualized suspicion, in order
to be sure they are not, say, carrying a bomb that might bring down a plane. Now, suppose that during that search, the government finds
contraband that poses no aviation threat (drugs, perhaps, or a suspiciously large amount of currency). The evidence may then be used in a
subsequent criminal prosecution, even though the very same search would have been illegal if its original purpose had been criminal
prosecution. Likewise, if a police officer frisks a pedestrian in order to ameliorate the immediate threat of a gun, and along the way “plainly”
feels drugs, the drugs are admissible in a criminal proceeding.46 The foreign intelligence approach is different.47 Asin the administrative
search context, the
regulation of information acquisition or collection is often very
loose, with no requirement of individualized suspicion of wrongdoing in
many situations. But, unlike with respect to criminal prosecution uses of evidence obtained by administrative search, the
minimization procedures constrain what can happen next.48 Prior to the Snowden leaks, only one of the FISA minimization procedures—
for information collected under a FISA Title I warrant49—had been declassified. Over the past months, the government has disclosed the
terms of several others: for targeted surveillance of foreigners abroad (under FISA § 702),50 the now-defunct internet metadata program
(under FISA’s pen register/trap-and-trace provision), 51 the ongoing telephony metadataprogram (under FISA’s business records
provision), 52 as well as some others.53 All of these minimization procedures support the conclusion that FISA’s
minimization procedure requirement is legalizing in several analytically distinct
ways. First, the procedures are themselves highly legalistic; they read like statutes or regulations.
Second, the minimization procedures frequently use the strategy of designating
a particular high official to make specified decisions.54 Implementation then forces
subordinate personnel into using the legalistic method of reasoned elaboration,55 as they explain why the outcome they favor should be
adopted by the official authorized to decide. As Mary Lawton, the Department of Justice lawyer who helped to draft FISA and was for
several decades the most influential bureaucrat of intelligence legalism,56 explained in 1993, “[i]mplicit in these requirements are certain
formidable bureaucratic constraints: articulation, consideration, consensus and personal accountability,” which together slow down and
rationalize actions proposed. 57 Both “articulation” and “consideration” are characteristic of legalized decisions. Third, the
procedures empower lawyers: they must be approved by the Attorney General, and therefore first by DOJ lawyers,
prior to being offered to the FISA Court for its signoff.58 Fourth, once approved, the procedures acquire
the privileged status of federal court orders. Obedience becomes a
compliance, rather than a policy, task for the NSA, subject to requirements
of court disclosure and correction. 59 So if NSA fails—particularly if it fails systematically—the court might
impose various consequences ranging from embarrassment for particular lawyers to withdrawing approval for a whole NSA program.60 It
is evident that these consequences are only loosely coupled with the substantive importance of the disregarded minimization feature; the
FISA court has sometimes scolded the government for noncompliance with
minimization orders whose features it agrees to relax in the very same opinion.61 Post-September 11
amendments to and interpretations of FISA have vastly reduced the warrant-style
individuation required for FISA-authorized surveillance. Under the FISA Amendments Act,
the FISA Court now signs off on a massive program of targeted surveillance of foreigners—including when their communication is with an
American—and on some smaller amount of targeted surveillance of U.S. persons abroad, without adjudicating the existence of probable
cause for the targets.62 And we now know that at least two bulk metadata programs—one examining a broad
array of domestic internet communications, and the other focusing on an even larger share of domestic phone calls—have been deemed
authorized by FISA without individuated suspicion of any party to the communications. Much
of FISA surveillance, 63
longer resembles ordinary domestic criminal practice. Nonetheless
the basic legalizing structure has remained intact: lawyers prepare, and judges approve, the
proposed surveillance, and it is accompanied by court-ratified minimization procedures
given the force of law.
that is, no
Legal reforms over political processes, like oversight and restriction
of drones, cyber operations or FISA – all fail
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
It is therefore appropriate to move beyond explanation and to turn to possibilities for reform —to consider steps that
aspires to
tone up Madisonian muscles one by one with ad hoc legislative and judicial
reforms, by, say, narrowing the scope of the state secrets privilege;
permitting the recipients of national security letters at least to make their
receipt public; broadening standing requirements; improving congressional
oversight of covert operations, including drone killings and cyber
operations; or strengthening statutory constraints like FISA 545 and the War Powers
Resolution.546 Law reviews brim with such proposals . But their stopgap approach has been
tried repeatedly since the Trumanite network’s emergence. Its futility is
now glaring. Why such efforts would be any more fruitful in the future is
hard to understand. The Trumanites are committed to the rule of law and their sincerity is not in doubt, but
the rule of law to which they are committed is largely devoid of meaningful
constraints.547 Continued focus on legalist band-aids merely buttresses the
illusion that the Madisonian institutions are alive and well—and with that
illusion, an entire narrative premised on the assumption that it is merely a
matter of identifying a solution and looking to the Madisonian institutions
to effect it. That frame deflects attention from the underlying malady. What is needed, if Bagehot’s
theory is correct, is a fundamental change in the very discourse within
which U.S. national security policy is made. For the question is no longer: What should the
might be taken to prevent the entire structure from falling to earth. The first set of potential remedies
government do? The questions now are: What should be done about the government? What can be done about the
government? What are the responsibilities not of the government but of the people?
Link – Hegemony
Re-asserting hegemony is a response to the evacuation of concrete
political distinctions by political and economic globalization – an
endless string of enemy creation, permanent development of the
globe, and conversion of politics to policing. You may be right that
hegemony isn’t collapsing, but it’s only because the affirmative’s
politics dooms America to winning a permanent war of attrition
Galli ‘10 (Carlo, Professor of Political Philosophy @ U. of Bologna, Politics Spaces and Global War, trans.
Adam Sitze, pp. 175-179)
Of course, even
if there is no single focal point or center of gravity to global
politics and Global War, there is, at the very least, an epicenter to it: the friction
between the United States and the Islamic, or more generally Asiatic, world.
Though the United States is a solitary hyperpower, the heart of a
hypereconomy for world development, and though it survived the dual
conflict between superpowers, it is not the Empire, just as its economy does
not coincide with the global economy. And yet, the United States is, more
often than not, engaged in Global War. Having left the Cold War victorious,
the United States is, paradoxically, the bearer of the sort of revisionist
politics that is more often adopted by defeated powers. The United States
wants to change the rules of the game, that old, established, bipolar game
that gave order to the second half of the twentieth century. It wants to allow
itself something that has never before been allowed in a real and concrete
way, to practice the strategy that it has long believed to be more congenial
and useful for its own interests: unilateralism, the worldwide advancement of American
interests – if necessary against and beyond international organizations and their
coordination of actors on the global stage. In the ideological assumption
that whatever is good for the United States is good for the rest of the world,
or better, that the United States embodies the most precious human values,
and thereby merits the leadership that it has so openly claimed since the
Clinton presidency, American particularism becomes American
universalism. In truth, the United States is currently unbalanced by their
victory over the Soviet Union. Without that enemy, which had also been a forced world
partner, the United States now feels alone, exposed and forced to confront the
world's disorder and the arc of crises that surrounds the center-south area
of the old continent, from Morocco to the Philippines. In this arc of crisis,
territorial claims (Kurdistan, Palestine, Chechnya, Kashmir), energy claims (water, oil), and
religious claims (Islam, Hinduism, Chinese communism) intertwine, made even more
serious by the fact that they are simultaneous and contradictory, and all
inscribed in globalization's vortex. September 11 may not have been the end
of U.S. power, but it was certainly a radical challenge to it, and America is
far from certain that it can win. To respond to all this, the United States seeks to
impose a hierarchical-imperial order on the anarchical-plural disorder of
the world, and to this end supplies an impressive military apparatus, easily
the most powerful in history. According to the new strategic doctrine recently
presented by Secretary of Defense Donald Rumsfeld, this military presence will emphasize
“deterrence in four critical theaters.”35 The United States will therefore
prepare itself to fight four large conventional wars at the same time, while
maintaining its defensive capabilities to protect from a nuclear attack and to
deliver a devastating strategic response. This response is ready for China,
for rogue States, for terrorist bases, and many more. This might seem to be
the exercise of sovereignty understood in the classical sense: as a “normal”
aspiration to power, even if carried out on a much larger scale. It might
seem, in other words, that the United States is a political actor that is attempting to
execute a reconfiguring design of global space to its own advantage, that it is
the institutionalized power seeking to bring order to the conflictual tangle of
destructured powers. It might seem that the United States is trying to
conquer the Heartland, the heart of the old continent, whose possession has always eluded Anglo-Saxon
powers and which has been the major stake for geopolitics throughout history (at least according to geographer Halford
Mackinder).36 The old continent would then allow the United States to become not just a naval and Atlantic power, but
also a terrestrial power. The
campaign in Afghanistan, seen in this light, would be
anything but random; it would be just one piece of the puzzle, the
completion of which would allow the insertion of military bases in the
steppes of central Asia, in Kyrgyzstan and Uzbekistan, allowing for the
control of oil resources in the Caspian region as well as the encirclement of
the Islamic world from the North and the South. Indeed, seen in this way, the
Shanghai meeting among the leaders of China, Russia, and the United States
in October 2001 could be interpreted as a draft of new Yalta, an attempt by the United States to
negotiate new areas of influence in Asia with the old terrestrial powers. This was a negotiation sustained by a strategicspatial design and a military and economic power so impressive that it nearly became an imposition. If
this is
indeed how everything happened, we could conclude that, underneath the
jumble of global politics and Global War, the steady connections of
permanent geopolitical interests remain in place (only now interpreted from the American
point of view), and that Global War is not inimical to the construction of a precise
architecture of world power. In reality, however, this geopolitical
interpretation is not only improbable – politics today is no longer tied to
land, as it has been despatialized for quite some time – but also deceptive. It
sounds like a retrospective rationalization for a situation that does not in
fact follow the creation of a politics or a “great strategy,” but instead
configures itself as a series of “blows” struck by the United States all over
the world in response to local crises, not in order to prevent them, but in an
attempt to bring political order to space. In short, American military action
does not seem to be a traditional manifestation of sovereignty, but rather a
necessity, an operation of continuous substitution (the next villain, when the
Afghanistan question has been laid to rest, will be Iraq) of a world order that
does not actually exist, the job of a fireman or of a global policeman rather
than a politician. The armed struggle against terrorism is one way the
United States participates in Global War, and it is a continuation, with new
means, of the lack of politics (in the traditional sense) that is so typical of the global
age. It is the continuation, in other words, of the new politics of immediacy – of
short-circuit – between economic rationality and the manifestation of
violence. Sucked back into the global swamp, the United States does not seem to have a
precise strategic design, but rather, many immediate interests to defend and
many fears to assuage. Even if the American Empire is not in decline,
captured in the vortex of the global Empire, it may truly be the Empire of
Chaos, condemned to fight forever and to win, certainly, but never to reach
peace or allow peace. Furthermore, were the United States to engage in an attempt to prevent terrorism by
reclaiming its sources, it would be obliged to construct or radically reform the
internal order of some eighty poor, deinstitutionalized countries, which
seems an excessive undertaking, even for a power with military bases in 100 of the 180 countries of the
world. In any case, we can easily say that, even on the American side, there is a fair amount
of disorder, and that the United States' self-evident hyperpower is not
“sovereignty” in the classical sense. In fact, sovereignty draws its meaning from its plurality and its
ability to recognize other sovereign centers, while the United States does not recognize any enemy outside themselves;
they have no iusti hastes; they see their adversaries only as criminals, rogue states, an “axis of evil.” It thus becomes
evident that today
no “international system” with precisely distinguishable,
interdependent actors truly exists. Rather, we see an a-systematic “global
system” in which only the “internal” dimension of the “police” exists. More
precisely, we see a deterritorialized economics being chased by a
deterritorialized politics – which, in turn, brings war along with it like its own
Shadow, in an immediate and unthinking way.
Link - Human Rights
Human rights are cited as reason for “just war” – guts international
law and ultimately makes human rights worse
Denike 08 - Ph.D. in Political Science from York University (Margaret, The Human Rights of
Others: Sovereignty, Legitimacy, and “Just Causes” for the “War on Terror”,
onlinelibrary.wiley.com/doi/10.1111/j.1527-2001.2008.tb01188.x/full, pg. 96), “LJH”
Human rights advocates have good reasons to celebrate the “triumph” of international human
rights: the past half-century or so has witnessed the mobilization of international organizations
and related systems of governance around the protection of the rights of vulnerable and
subjugated individuals and groups; the proliferation of international treaties and agreements
elaborating and codifying Hypatia vol. 23, no. 2 (April-June 2008) 0 by Margaret Denike 96
Hypatia these protections; the creation of protocols for assessing and monitoring the practices of
states; and the operational success of new international criminaljustice systems that promise to
hold accountable perpetrators of “crimes against humanity.” The apparent willingness of the socalled “international community” to affirm the aspirations of human rights is truly exceptional: as
Louis Henkin has repeatedly emphasized, they are “the only political-moral idea that has received
universal acceptance”; the Universal Dechration of Human Rights was approved by “virtually all
governments representing all societies” when it was adopted in 1948; and “virtually every one” of
the member states of the United Nations enshrine human rights in their constitutions (Henkin
1990, 1). Leveraging notions of the inherent dignity of human beings, the
universalizing impulse speaks of providing certain standards of treatment
to all individuals, simply by virtue of being human. As such, and as is evident in the
writings of most contemporary proponents of “just war” doctrine, human rights are
commonly invoked as an ethical justification or “just cause” for states to
resort to military force against those who threaten them;’ fueled by such
objectives and their underlying ideology, such action is cast as inherently
legitimate, whether or not it is consistent with international law, and however
much suffering is produced in their name. The recent trend of the past two decades,
which, like the US.-led “war on terror,” finds imperialist “security states”
(Young 2003, 14) increasingly invoking humanitarian reasons to justify
exceptions to the international prohibitions on armed attacks, defies the UN
charter’s prohibition on the use of force, and flies in the face of the 1985
ruling of the International Court of Justice (ICJ) in Nicaragtra, which
addressed the (i1)legality of the U.S. invasion of Grenada without UN
Security Council authorization. The ICJ stated at the time that there were “no really
persuasive examples in state practice of human rights intervention,” and that in the absence of a
justification under the UN Charter, the use of force was not an appropriate method to ensure
respect for human rightsz But increasingly throughout the 1990s, and despite this ruling and the
Charter’s explicit prohibition, there has been a spate of military interventions conducted in the
name of humanity, including those authorized as exceptional Chapter VII missions by the
Security Council3 and those that continue to defy authorization, such as the U.S.-led invasions of
Afghanistan and Iraq4 The triumph of human rights has offered up a ‘ljust cause”
for postmodernity’s wars, as Costas Douzinas (2000) so thoroughly
demonstrates in his detailed genealogy of human rights, rendering as the
new norm and rule what is invariably touted as the “exceptional” use of
force against sovereign territories, providing a moral gloss to occlude the
imperialist interest in such force, and effectively spelling the “end of human
rights” as we know them.
Rights discourse is perverted by cynicism – has no benefit outside the
realm of demand
Kennedy 02 - Carter Professor of Jurisprudence at Harvard (Duncan, The Critique of Rights in
Critical Legal Studies,
duncankennedy.net/documents/The%20Critique%20of%20Rights%20in%20cls.pdf) "LJH"
A final parallel is that rights talk, like legal reasoning, is a discourse–a way of talking about
what to do that includes a vocabulary and a whole set of presuppositions about reality. Both
presuppose about themselves that they are discourses of necessity, of
reason as against mere preference. And it is therefore possible to participate
in each cynically or in bad faith. Cynicism means using rights talk (or legal
reasoning) as no more than a way to formulate demands. They may be
“righteous” demands, in the sense that one believes strongly that they
“ought” to be granted, but the cynic has no belief that the specific language
of rights adds something to the language of morality or utility. When one
attributes the success of an argument couched in rights language to the other person’s good-faith
belief in the presuppositions of the discourse, one sees the other as mistaken, as having agreed for
a bad reason, however much one rejoices in the success of a good claim. Bad faith, here and
in the case of legal reasoning, means simultaneously affirming and denying
to oneself the presupposed rationality of the discourse, and of the particular
demand cast in its terms. It means being conscious of the critique of the
whole enterprise, sensing the shiftiness of the sand beneath one’s feet, but
plowing on “as if” everything were fine. Bad faith can be a stable condition, as I have
argued at length elsewhere for the 191 THE CRITIQUE OF RIGHTS case of legal reasoning.14 Or
it can turn out to be unstable, resolving into loss of faith or into renewed good faith.
Link - International Law
Structural bias renders international law an apparatus for oppression
and exploitation- hardly the impartial, neutral framework we
imagine.
Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert,
paper presented at the Fourth Annual Conference of the Toronto Group for the Study of
International, Transnational and Comparative Law and the Towards a Radical
International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and
Tactics,
http://chicago.ssrn.com/delivery.php?ID=02409411300607909207009408308000810
20990740180370420591080920650040240011070880960741210601231190210981141
2208201009308410512702708007106400406500109111900908311005908706011902
2010094115119114091030115116030067069099083005124072124028119095091029&E
XT=pdf&TYPE=2, 06/26/15) JG
Strategy and Tactics 201¶ 3. Strategic essentialism redux¶ 3.1. Law’s War and Legal Battle#elds¶ Whilst this schema might
seem somewhat abstract, it is directly applicable to the¶ way in which critical legal scholars have approached intervening
in political and¶ legal debates. Before examining how these interventions have been conducted,¶ it is necessary to brie"y
outline the strategic and tactical issues at play. Critical¶ international
legal scholarship is a
rather broad church, composed of a number¶ of individuals situating
themselves in various theoretical traditions.18 !at being¶ said, it is arguable that there are
a number of theoretical positions around which¶ there is a degree of
convergence, and mark scholars out as belonging to the critical¶ legal
tradition.19 Whilst these may not capture every #gure in the tradition, they¶ provide su%cient overlap for us to think
about what the content of a broadly¶ critical legal strategy might be. In basic terms, these are – what we might call –¶ the
indeterminacy thesis, lawfare and structural bias.¶ !ese
three inter-linked positions provide the
basic framework through which¶ many critical scholars understand
international law, so it is worth unpacking¶ slightly what they mean and how they interconnect. !ere are
many di$erent¶ variants of the indeterminacy thesis: legal realist (American and Scandinavian),¶
structuralist, post-structuralist etc. However, whilst the reasons for indeterminacy¶ may be divergent,
it can be argued that they come to similar conclusions. In essence,¶ the indeterminacy thesis refers to the idea that legal
argument cannot be¶ resolved ‘on its own (legal) terms’. !is is because a given legal
argument can be¶ opposed by another – equally valid – legal argument, meaning
that from within¶ the law various outcomes will all be equally valid.20 As such,
legal interpretation¶ cannot be a ‘neutral’ a$air of applying rules to a given situation, but
always involves¶ some level of political choice as to which con"icting argument will apply.¶ Whilst one
need not hold to the indeterminacy thesis in order to argue that legal¶ 18. See David Kennedy and Chris Tenant, ‘New
Approaches to International Law: A Biography’,¶ 35 Harvard International Law Journal (1994) 417-460 at 418-420. !is is
not taken as an¶ authoritative guide to the contemporary movement, but rather as a historical example of the¶ diversity of
the participants in the critical project.¶ 19. See !omas Skouteris, ‘Fin de NAIL: New Approaches to International Law and
its Impact¶ on Contemporary International Legal Scholarship’, 10 Leiden Journal of International Law¶ (1997) 415-420.¶
20. For the classic account in international law see Martti Koskenniemi’s From Apology to Utopia:¶ !e Structure of
International Legal Argument (Cambridge University Press, 2005). !e literature¶ on indeterminacy is large and varied –
especially given the various approaches outlined above¶ – but for some of the critical legal studies literature see Mark
Kelman, A Guide to Critical¶ Legal Studies (Harvard University Press, 1987) especially at pages 1-63 and Duncan
Kennedy,¶ A Critique of Adjudication: Fin de Siècle (Harvard University Press, 1997).¶ 202 Finnish Yearbook of
International Law (Vol. 21, 2010)¶ decisions are political, the indeterminacy thesis necessarily implies a political¶
dimension to legal decisions.¶ ‘Lawfare’
is a very speci#c term which refers to the idea
that international¶ law is a part of modern warfare, and can be used as a
weapon by both sides.21¶ But in this instance the particular usage implies a more general idea about the¶
relationship between international law and the political process. Essentially, critical¶ scholars argue that rather
than international law being outside of relations of¶ power, exploitation and
domination it is already ‘part of the problem’, that is to¶ say that international law
has played and continues to play a role in constituting¶ and legitimating
these relations.22 !is is because it at least partially creates the¶ conditions in which political and economic power
is exercised – by granting¶ certain types of property, allowing certain types of
violence, locating certain¶ agents within certain social positions and granting
them certain powers etc.23¶ In this view, law is not simply a negative relationship that constrains action,
but¶ also one that sets the conditions in which action takes place, enabling
relations¶ of domination and exploitation.¶ !e #nal element is that of ‘structural bias’. !e following
comment from¶ Martti Koskenniemi gives a glimpse into how it has been understood by critical¶ scholars. Koskenniemi
argues that irrespective of the formal openness entailed by¶ indeterminacy ‘the system still de facto prefers some outcomes
or distributive choices to¶ 21. Charles Dunlap, a central #gure in popularising the term, de#nes it as ‘using – or misusing¶
– law as a substitute for traditional military means to achieve an operational objective’ in¶ Charles Dunlap, ‘Lawfare
Today: A Perspective’, 3 Yale Journal of International A#airs (2008)¶ 146-154 at 146.¶ 22. David Kennedy ‘!e International
Human Rights Movement: Part of the Problem?’, 15¶ Harvard Human Rights Journal (2002) 101-125, which itself is a
condensation of the argument¶ he puts forward in !e Dark Sides of Virtue: Reassessing International Humanitarianism ¶
(Princeton University Press, 2004). Kennedy deals much more explicitly with the idea of¶ ‘lawfare’ in his book Of War and
Law (2006, Princeton University Press). Along with Susan¶ Marks’ article ‘State-Centrism, International Law, and the
Anxieties of In"uence’, 19 Leiden¶ Journal of International Law (2006) 339-347 these are some of the primary exponents
of¶ the theoretical account of law’s role in constituting domination. Equally, there are a number¶ of more historically
focused accounts, for example Antony Anghie, Imperialism, Sovereignty¶ and the Making of International Law
(Cambridge University Press, 2005) and Balakrishnan¶ Rajagopal, International Law from Below: Development, Social
Movements and !ird World¶ Resistance (Cambridge University Press, 2003).¶ 23. Although obviously not directly a work
of international law, Duncan Kennedy’s analysis¶ of the importance of law in conditioning the bargaining power of
economic actors is both¶ in"uential and exemplary in explaining law’s role in the constitution of power relations, see¶
Duncan Kennedy, ‘!e Stakes of Law, or Hale and Foucault!’ in Sexy Dressing Etc. (1995,¶ Harvard University Press) at 85125. Some examples of its use include Alvaro Santos ‘!ree¶ Transnational Discourses of Labor Law in Domestic Reforms’,
32 University of Pennsylvania¶ Journal of International Law (2010) 123-202 and Robert Wai ‘Transnational Lifto$ and¶
Juridical Touchdown: !e Regulatory Function of Private International Law in an Era of ¶ Globalization’ 20 Columbia
Journal of Transnational Law (2001) 209-274.¶ Strategy and Tactics 203¶ other outcomes or choices ... even if it is
possible to justify many kinds of practices¶ through the use of impeccable professional argument, there
is a
structural bias in¶ the relevant legal institutions that makes them serve
typical, deeply embedded¶ preferences, and that something we feel that is politically wrong in the
world is¶ produced or supported by that bias.’.24 Whilst there are problems with this speci#c¶ formulation, it does the
#nal core insight of critical international lawyers, namely¶ that law is not a
neutral framework through which all interests can be equally¶ expressed, but one which will systematically
favour some interests over others.25¶ Provisionally then, these positions point to a theory about law and legal argument¶
which argues that it occupies a central role in international politics. In¶ this vision,
international law helps to constitute and enable those relations that ¶ critical
scholars want to #ght and is not a ‘neutral’ instrument through which any¶ actors can pursue their interests.
Crucially, this is a theory about the structure of¶ law and legal argument, which is not concerned with speci#c
legal rules should¶ be deployed or the outcomes of speci#c legal decisions, but is rather about the¶ broader the
relationship between law and social phenomena. !ese positions¶ stand in
contrast to the mainstream, liberal understanding of international law.¶ !e liberal
position is the precise inverse of the critical one outlined above. In this¶ understanding, international law is seen as a
determinate body of rules, through¶ which various interests could be expressed. Here international law is not said¶ to be
constitutive of relations of exploitation of domination, but rather to have¶ played a crucial role in ending such relations
historically (particularly in the case¶ of colonialism) and in the present conjuncture to be systematically violated and¶
abused by various superpowers.26 In this account international law is at worst a ¶ ‘neutral’ vessel, and at best the rule of
law (as distinct from particular laws) is a¶ force for good.¶ !is liberal understanding is one not simply held by lawyers or
academic¶ commentators, but is also the ‘common sense’ understanding of international¶ law that structures public
debate.27 Much of this debate proceeds on the understanding¶ that various imperial actions are illegal, must be shown to
be so, and¶ contested in these terms.28 !e applicability of the strategy and tactics distinction¶ 24. Martti Koskenniemi,
From Apology to Utopia, supra note 20, at 606-607.¶ 25. See also China Miéville, Between Equal Rights: A Marxist !eory
of International Law (Brill:¶ Leiden, 2005) especially at 293 and Kennedy, ‘!e International Human Rights Movement’,¶
supra note 22.¶ 26. See Sands, Lawless World, supra note 5; Geo$rey Robertson, Crimes Against Humanity (Penguin ¶
Books: London, 2006) and David Rose, Guantanamo: America’s War on Human Rights (Faber¶ and Faber: London,
2004).¶ 27. !e articles cited supra note 6 give some idea of this.¶ 28. Perhaps tellingly, some of the most cogent challenges
to this approach have come from those¶ on the right of the political spectrum, see Jack Goldsmith and Eric Posner, !e
Limits of¶ International Law (Oxford University Press, 2007). Chase Madar’s columns in the American ¶ Conservative
<www.amconmag.com/search.html?v&m=3&author=Chase+Madar&start=¶ 204 Finnish Yearbook of International Law
(Vol. 21, 2010)¶ should be obvious here. On the one hand we have a group of scholars advancing¶ a structural critique of
international law that is, in the limited sense outlined¶ above, ‘revolutionary’. On the other hand, they operate in a context
in which¶ the majority of individual struggles – over wars, detention of ‘terrorists’, debt¶ etc. – are conducted in such a
way as directly militates against this critique. !us¶ we have the example of the ‘revolutionary’ critique (of organic
moments) in a¶ non-revolutionary period.
Link – Lawfare
The aff is an instrument instrumental lawfare—cements violent grand
strategy and disdain for democracy
Morrissey ‘13 – Lecturer in Political and Cultural Geography, National University of Ireland(John, War Beyond the Battlefield,
“Liberal Lawfare and Biopolitics: US Juridical Warfare in the War on Terror”, p. 45-47)
A bigger question, of course, is what the US military practices of lawfare and juridical
securitization say about our contemporary moment. Are they essentially
‘exceptional’ in character, prompted by the so-called exceptional character of global terrorism today? Are they therefore
enacted in ‘spaces of exceptions’ or are they, in fact, simply contemporary examples of Foucault’s ‘spaces of
security’ that are neither exceptional nor indeed a departure from, or perversion of,
liberal democracy? As Mark Neocleous so aptly puts it, has the “liberal project of ‘liberty”’ not always been, in fact, a “project
of security”?116 This ‘project of security’ has long invoked a powerful political dispositif of ‘executive powers’, typically registered as
‘emergency powers’, but, as Neocleous makes clear, of the permanent kind.117 For Neocleous, the pursuit of ‘security’ – and more
specifically ‘capitalist security’ – marked the very emergence of liberal democracies, and continues to frame our contemporary world. In the
West at least, that world may be endlessly registered as a liberal democracy defined by the ‘rule of law’, but, as Neocleous reminds us, the
assumption that the law, decoupled from politics, acts as the ultimate safeguard of
democracy is simply false – a key point affirmed by considering the US military’s extensive waging of liberal lawfare.
As David Kennedy observes, the military lawyer who “carries the briefcase of rules and
restrictions” has long been replaced by the lawyer who “participate[s] in discussions of strategy and
tactics”.118 The US military’s liberal lawfare reveals how the rule of law is simply another securitization tactic
in liberalism’s ‘pursuit of security’; a pursuit that paradoxically eliminates fundamental rights and freedoms in the ‘name of security’.119
This is a ‘liberalism’ defined by what Michael Dillon and Julian Reid see as a commitment to waging ‘biopolitical war’ for the
securitization of life – ‘killing to make live’.120 And for Mark Neocleous, (neo)liberalism’s fetishisation of
‘security’ – as both a discourse and a technique of government – has resulted in a world defined by antidemocratic technologies of power.121 In the case of the US military’s forward deployment on the frontiers of the war on terror – and its
juridical tactics to secure biopolitical power thereat – this has been made possible by constant reference to a neoliberal ‘project of security’ registered in a language
of ‘endless emergency’ to ‘secure’ the geopolitical and geoeconomic goals of US foreign policy.122 The US military’s continuous and indeed growing military
footprint in the Middle East and elsewhere can be read as a ‘permanent emergency’,123 the new ‘normal’ in which geopolitical military interventionism and its
concomitant biopolitical technologies of power are necessitated by the perennial political economic ‘need’ to securitize volatility and threat. CONCLUSION:
ENABLING BIOPOLITICAL POWER IN THE AGE OF SECURITIZATION Law and force flow into one another. We make war in the
shadow of law, and law in the shadow of force. — David Kennedy, Of War and Law 124 Can
a focus on lawfare and
biopolitics help us to critique our contemporary moment’s proliferation of practices
of securitization – practices that appear to be primarily concerned with coding, quantifying, governing and anticipating life itself? In the
context of the US military’s war on terror, I have argued above that it can. If, as David Kennedy points out, the “emergence of a
global economic and commercial order has amplified the role of background legal
regulations as the strategic terrain for transnational activities of all sorts”, this also includes, of course, ‘warfare’;
and for some time, the US military has recognised the “opportunities for creative strategy” made possible by proactively waging lawfare
beyond the battlefield.125 As Walter Benjamin observed nearly a century ago, at
the very heart of military
violence is a “lawmaking character”.126 And it is this ‘lawmaking character’ that is integral to the biopolitical
technologies of power that secure US geopolitics in our contemporary moment. US lawfare focuses “the
attention of the world on this or that excess” whilst simultaneously arming
“the most heinous human suffering in legal privilege”, redefining horrific
violence as “collateral damage, self-defense, proportionality, or necessity”.127 It
involves a mobilisation of the law that is precisely channelled towards
“evasion”, securing classified Status of Forces Agreements and “offering at once
the experience of safe ethical distance and careful pragmatic assessment,
while parcelling out responsibility, attributing it, denying it – even sometimes embracing it – as a
tactic of statecraft and war”.128 Since the inception of the war on terror, the US military has waged incessant
lawfare to legally securitize, regulate and empower its ‘operational capacities’ in its multiples ‘spaces of security’ across the
globe – whether that be at a US base in the Kyrgyz Republic or in combat in Iraq. I have sought to highlight here these
tactics by demonstrating how the execution of US
geopolitics relies upon a proactive legal-
biopolitical securitization of US troops at the frontiers of the American ‘leasehold empire’. For the US
military, legal-biopolitical apparatuses of security enable its geopolitical and geoeconomic projects of security on the
ground; they plan for and legally condition the ‘milieux’ of military commanders; and in so doing they render operational
the pivotal spaces of overseas intervention of contemporary US national security conceived in terms of ‘global
governmentality’.129 In the US global war on terror, it is lawfare that facilitates what Foucault calls the “biopolitics of
security” – when life itself becomes the “object of security”.130 For the US military, this involves the eliminating of threats
to ‘life’, the creating of operational capabilities to ‘make live’ and the anticipating and management of life’s uncertain
‘future’. Some of the most key contributions across the social sciences and humanities in recent years have divulged how
discourses of ‘security’, ‘precarity’ and ‘risk’ function centrally in the
governing dispositifs of our contemporary world.131 In a society of (in)security, such
discourses have a profound power to invoke danger as “requiring
extraordinary action”.132 In the ongoing war on terror, registers of emergency play pivotal roles in the
justification of military securitization strategies, where ‘risk’, it seems, has become permanently binded to ‘securitization’.
As Claudia Aradau and Rens Van Munster point out, the “perspective of risk
management” seductively
effects practices of military securitization to be seen as necessary, legitimate and
indeed therapeutic.133 US tactics of liberal lawfare in the long war – the conditioning of the battlefield, the sanctioning of
the privilege of violence, the regulating of the conduct of troops, the interpreting, negating and utilizing 24 of international
law, and the securing of SOFAs – are vital security dispositifs of a broader ‘risk- securitization’ strategy involving the
deployment of liberal technologies of biopower to “manage dangerous irruptions in the future”.134 It may well be fought
beyond the battlefield in “a war of the pentagon rather than a war of the spear”,135 but it
is lawfare that
ultimately enables the ‘toxic combination’ of US geopolitics and biopolitics
defining the current age of securitization.
We exist in a condition of Global War – making war more
“manageable” re-creates violence by failing to understand that the
confusion of friends and enemies is an inevitable aspect of a
globalized world cannibalizing its outside and leaving
phantomenemies in that place
Debrix & Barder ’12 (François, Professor of Political Science @ Virginia Tech, Director of the Alliance for
Social, Political, Ethical, and Cultural Thought, and Alexander, Dept. of Political Science @ American U. of Beirut,
Beyond Biopolitics: Theory, violence, and horror in world politics, pp. 105-106)
While McClintock insists on the return to the enemy/inimical other as an
embodied presence, one that can guarantee recognition (of the self), rejection (of the
normalized other), and reconstitution (of the body politic), the immunitary logic of
absolute alterity advanced by Esposito asks us to be suspicious of such a
return to an (almost Schmittian) enmity, one that would be finally visible in
all its concrete clarity. Perhaps instead of insisting on placing a concrete, embodied,
and normalized enemy (the Al-Qaeda terrorist, the Iraqi insurgent, the Taliban fighter, the Islamic fundamentalist, the
traitor to the US cause, or any other camp dweller) in the context of a US-driven Global War on
Terror whose objective mostly would be to rediscover a principle of
recognition and reconstitution of the self, we would do well to think about enmity (concrete
or absolute) and the thanatopolitical logic of destruction of both self and other in
the light of another analytical geopolitical configuration. This alternate conceptual approach is Carlo Galli's
notion of "Global War." Global War, for Galli, is not the same thing as the Global War on Terror. Rather,
Global War is an analytical space that encourages a general reflection on a political condition in
which “there is no longer an institution or boundary that can impede certain
types of events from happening on the inside (unpredictable and acute
outbursts of violence, for instance), or the loss of security in different
domains such as health (threatened by new diseases), access to water,
stability of employment, retuement plans, and the economic system."50
Global War is the projection on a planetary scale of a generalized fear
whereby "anything can happen anywhere at any time.”51 In Global War, any
attempt at re-embodying the enemy or at re-territorializing conflict is a selfdefeating enterprise. As Galli argues:
Many have tried (and continue to try) to respond to this predicament employing various strategies to attempt to
transform Global War into a different kind of war, one that is more
comprehensible and more manageable. Some have tried to turn Global War into a war against
terrorism that, in turn, would be able to establish a clear difference between "Us" and "Them." However, this very
overemphasis on the opposition between "our" identity and "theirs" is in
itself a product of Global War, one of its most striking psychological and
political effects. 52
Global War, then, only offers a semblance or a simulacrum of a geopolitical order
based upon traditionally distinct friends and enemies. Because in Global War the
referentiality of the conflict, combat, or agony (and of the enemy too) is irretrievably lost
– the war could equally be waged on the enemy or on oneself, as we saw above – only a desperate or nostalgic
attempt at recreating a sense of self and other, of us and them, and of inside
and outside can take place (this argument recalls Anidjar's critique of Hardt and Negri's notion of enmity
in Empire too, as we saw above). But this attempt is far more the result of wishful
thinking, of a will to believe, or even a way of covering a psychological loss
than it is the product of actual conditions of war antagonism.
Consequently, Galli
suggests that the condition of Global War introduces a new
concept of enmity. In a manner reminiscent of Derrida's reading of Schmitt's notion of the enemy, Galli turns
to the image of the “phantomenemy” to explain what otherness or alterity look like in Global War. Galli's
phantom enemy is an absolute enemy. But here it is absolute because it reveals
itself as a specter of absolute indistinction between friend and enemy, between
self and other. In a way, Galli's phantom-enemy is the haunting specter that gives rise to
Schmitt's fear of an undecidable condition whereby it would no longer be possible to distinguish
concretely between a fnend and public foe and, as a result of such a nightmare, the political would remain without
foundation. As Galli observes: "the
obsessive and vain search for security pushes to
mark borders that, in turn, with their excluding and hostile arbitrariness, end up
demonstrating that even traditional identities become phantoms in the
globalized space."53 Invoking a language and imagery of ghostliness and spectrality, Galli goes on to state that
The more we want to reassure ourselves about these specters, the more uncanny they become. The phantom-enemy is so
irrepresentable that even its hyper-representation is difficult: it is not by chance that the opposed propagandas are more
preoccupied with the virtual construction of the friend's identity than with the enemy's representation. The
phantomenemy is the ultimate figure of hostility and the most uncanny
because it is not different or distant from us. Rather, it is our shadow, our
anguish, the dark side of our own identity – itself made uncertain and
phantasmatic by the gray global twilight.54
Link – Legal Thought
The idea that voting affirmative creates positive change creates a
feedback loop that eschews actual change—vote negative to reject
their bankrupt epistemology
Schlag 2009 (Pierre [Byron R White Prof of Law @ University of Colorado]; Spam
Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the
State of the Art); 97 Geo. L. J. 803 (2009); kdf)
You guys reeeeeaaaaaaaally . . . . And the reason that’s true is that American
legal scholarship today is
dead—totally dead, deader than at any time in the past thirty years. It is more dead, vastly and
exponentially more dead, than critical legal studies was ever dead during its
most dead period. Nothing’s happening. Now it’s true that we’re producing at a vastly faster rate
than ever before. More papers. More conferences. More panels. More symposia. More
blogs. And faster and faster too. More and faster. Over seven thousand American legal
academics3—and all of them cranking out those talks and papers as fast as
possible. The speed of legal scholarship is just off the charts right now. And yet, nothing’s happening.4 How could
this possibly be? The short answer is that, all around us, there is more, vastly more, of nothing
happening than ever before. Now, this might seem odd, but upon reflection, it’s not. In fact, not at all.
Indeed, if anything , the accelerated culture of legal scholarship has positive
feedback effects on nothing happening: 5 Who, after all, would have the time to notice the vacancy
of the enterprise? More to the point perhaps, who would be foolish enough to point it out? This would be me.6 Now, I do
have enough sense not to dwell on how absolutely terrific things were twenty years ago. (Which, by the way, in a relative
sense, they were.) Instead, I will dwell on how truly awful things are today. Could things be any different? On the one
hand, I want to say of the dominant paradigm of legal scholarship: It is what it is—an institutionalized social practice. And
as such there is no particular reason to suppose that it should be any different from what it is (or is becoming) simply
because a few of us (many of us?) think it ought to be a whole lot more interesting or edifying or politically salient or
whatever. It’s true that most of us generally think of law, or at least legal thought, as the kind of social practice that is
responsive to serious intellectual critique and interrogation. 7 Indeed,
we tend to think of serious
intellectual critique and interrogation as integral to the social practice of
law and legal thought. But that’s just our representation of the thing. And if we
think about it, there’s really not much reason to believe it’s right. No one has yet adduced
any convincing evidence or offered any compelling argument to show that this representation is indeed true or often true
or even true enough. Nor has anyone attempted to show how it might be true if true it is (which quite likely, it’s not). What
do I think about this representation? Simple: I
think that the relation of serious intellectual
endeavor to the practice of law or legal thought is plural (many relations),
contextual (in all sorts of ways), highly mutable (not temporally constant), and arguably often
antithetical (an interference). All of this, of course, would make the relations of thought to practice radically
indeterminate—not the sorts of things that can be known fully in advance.8 From this radical indeterminacy though, one
can draw an utterly unfounded hope (which I do). As an unreconstructed optimist, I can’t help but think that it would be
so easy for at least some legal academics to turn their backs on the dominant paradigm, strike out on their own—alone or
in small groups—and do something intellectually edifying, politically admirable, or aesthetically enlivening.9 The way I see
it, tenure is forever, the discipline is weak, and there are no real sanctions for intellectual experimentation.10 And there
have to be some legal academics who are passionate and engaged— who are not beaten down by the drone of legal
discourse. People who have missed it—in the sense that they came of age in some truly dreary political/ cultural
moments.11 But who have not missed it in the sense that they are still alive. They still have aura.12 Now, I’m not
completely utopian, and I realize that this would not be a large group. But the upshot is that being a legal academic can
still be, if one makes it such, one of the last truly great jobs on earth13—a job where one can actually decide what to think,
what to write. All of this is to say that there
is no compelling reason to simply emulate the
reigning paradigms of legal scholarship. No compelling reason at all.14 But I guess I’m afraid that
many people do follow the dominant paradigm simply because . . . well, it’s the dominant paradigm. It’s what everybody
else is doing. I get the sense that for most people in the legal academy these days, there’s no elaborated conception of what
legal scholarship is supposed to be or do (or any such thing).15 And there isn’t much in the way of independent research
agenda—as in “I have things to say . . . and I’m going to say them.” The upshot is that legal
scholarship turns
out to be an exercise in imitation. Legal scholarship is whatever it is that
other legal academics do. And there is not much in the way of a critical appreciation of whether “what
other legal academics do” is of value or why or how. Instead, people in the academy simply
presume that legal scholarship (conceived here as what other legal academics do) has some
redeeming intellectual or moral or political value. As presently constituted, I’m not sure it
does. This, of course, brings up the thorny question: “compared to what?” Is it better for legal academics to follow the
dominant paradigm as opposed to . . . Doing nothing? Doing consulting? Doing journalism? Playing video games? My
compared-to-what (for purposes of this essay) is an optimistic conviction that some (many?) legal academics could do
scholarship in much more intellectually interesting or politically helpful or aesthetically enlivening ways if they abandoned
the reigning paradigm. I could be flat out wrong about this: it may be, as I’ve suggested above, that the only thing we can
say of legal scholarship is that it is what it is. It may be that given the present circumstances in the legal academy, we are
doing just about as well as can be expected. It may even be that departing from the dominant paradigm is undesirable
(things could get worse). In some ways, they very likely will. But probably not in all ways and not necessarily for everyone.
And so I write this essay. I am going to be doing three things at once. (That means no three cleanly divided parts on this
score.) One: I will be trying to show that the dominant paradigm is fundamentally uninteresting from an intellectual,
political, and aesthetic standpoint. Two: I will be trying to briefly sketch some of the constitutive features that render this
dominant paradigm (unavoidably) uninteresting. Three: I will be suggesting that following the dominant paradigm is an
existentially impoverished and impoverishing thing to do. It’s not a life. It’s just a genre. And not a very good one. Now, as
you can tell, this is not subtle. It’s
all aimed at providing motivation to abandon the
dominant paradigm. That’s my rhetorical strategy here. I’m hoping that, by the time you have finished this
essay, you start to think that participating in the dominant paradigm is not really worthy of your time or effort or perhaps
even respect. I’m also hoping that you start to think about writing something else—something less life impoverishing. Of
course, I realize that I have no hope of convincing anyone, except maybe a very few people who are on the margins, who
are vaguely dissatisfied with legal scholarship and who sense that maybe it’s not what it’s cracked up to be. The
essay
is aimed at those people who have begun to wonder—just what is the point? Not the grand
cosmological point of it all. But a more modest existential point—as in what is the point of doing legal scholarship? My
answer? You have to bring the point with you. Just as a lawyer needs to have a client in order to have a case, you
need to bring something to legal scholarship to make it worthwhile. Because,
unless you bring meaningful existential commitments to the practice of legal scholarship, it will have no point. Think of it
as a genre. It has no more of a point (in fact quite possibly less of a point) than other genres—say, the novel or the poem.
Now it is claimed by aficionados of the dominant genre that legal
scholarship is aimed at the mastery or production of knowledge, the elimination of
error, the promotion of the good, and so on. But those are just claims—representations. To my knowledge, no
one has ever provided any convincing argument as to why participating in the dominant form of legal scholarship is, in
and of itself, a morally good, intellectually respectable, politically admirable, aesthetically enlivening, or otherwise worthy
thing to do with one’s life.16 No one.17 There are some people, of course, who have said that it is part of the job
description and therefore one is duty-bound to do it. But that’s just wrong: Part of the job description (academic freedom
and all that) is to be able to develop your own scholarly agenda.
The affirmative creates theories for those who have stakes in plan
action, while getting to ignore the actual implications
Schlag 2009 (Pierre [Byron R White Prof of Law @ University of Colorado]; Spam
Jurisprudence, Air Law, and the Rank Anxiety of Nothing Happening (A Report on the
State of the Art); 97 Geo. L. J. 803 (2009); kdf)
Last summer, I did a stint as a swamper with AZRA, a commercial outfit in the Grand Canyon.63 For many people, going down the river can
be a lifechanging experience. It’s easy to understand how. The towering red and yellow walls, the intense play of light and shadow, the stark
lines of the encroaching horizons, the extreme heat and the breathtaking dryness of it all conspire to put the real world in abeyance. All the
little demands, requirements, schedules, preoccupations of that real world quickly begin to seem trivial. And then they fade entirely, until
they are gone. Then too there is the rhythm of the river—of getting up early everyday, of going down the river, of making camp and breaking
camp, and doing it every day so that each day is the same as every other day. With days like that, you can really think. You can imagine for
yourself another existence. And many people do. The trip ends and they drop their jobs, partners, wives, husbands, material possessions.
They fall in love with the river, with their guide, with the desert and, in some important ways, they never come back. I’m a reasonable
person (as well as a law professor) so all I came back with was one really tiny insight. Not only is it tiny, but it’s not even very original. And it
begins like this: There
is something pervasively neurotic about the structures of
contemporary life. The excruciating intricacies of everyday demands, the symbolic overinvestment of meaning in the trivial,
the obsessive monitoring of everything to within an inch of its life, the constant piling on of little local meta- and infra-layers of thought—all
these things are, from the perspective of the river, pervasively neurotic.64 Contemporary
life ensnares us in
all sorts of little maze-games that seem to matter tremendously and yet
ultimately do not—except in the negative sense that they distract our
attention from what does or at least could matter. Now, lots of people have had this sort of
insight—the most famous perhaps being Heidegger (the “fallenness” thing).65 But my insight, and it really isn’t much of an insight at all, is
about legal scholarship. I think the practices and institutions of contemporary legal scholarship (spam jurisprudence, case law journalism,
rank anxiety, nothing happening, etc.) are extremely intense versions of this generalized neurotic structure. It’s as if we were all working
really hard on an imaginary bus schedule. Someone writes an article saying we need to optimize the number of buses. Another person can’t
resist pointing out that it might be preferable to start by optimizing the number of bus stops instead. Soon someone writes that we should
reconstruct the entire schedule. Someone else will suggest that we should split the schedule along eight different parts. Someone says, the
eight parts are really sixteen. Some truly original thinker says there are ten. And then, some ranker comes along and starts ranking whose
law school has the best bus scheduling program going. And somebody else decides to hold a symposium on bus schedule rankings.
(Remember the traveling show on Bush v. Gore?)66 And then fifty years from now, someone will write a book: How Should the Bus
Schedules of 2000-Whatever Have Been Decided?67 Pretty soon, we’ve got a collective imaginary going and we’re pushing buses and bus
stops all across pages of the Yale Law Journal and it all feels kind of real and pretty important. And it’s not hard to believe that it’s
important. For one thing people are getting real rewards—prestige jobs, chairs, program
fund-ing—for imaginary bus schedule breakthroughs. And adding to the increasing reality of the thing is
the undeniable fact that we can’t just dismiss buses or bus schedules as unreal. (If everything else fails, by the way, this is your takeaway:
Buses are real.) But the thing of it is, our legal academic bus schedule remains imaginary. Even
if it looks a lot like the real thing, it’s still imaginary. When we put out our bus schedule, no buses run.Word. And no Rapid Transit District
(RTD) that I know of is going to change its schedule just because some new bus stop entries have been introduced in the pages of the Yale
Law Journal or wherever. Not going to happen. So
here we are, legal academics working on our
collective imaginary bus schedule. And one of the things that troubles me about this is that the imaginary bus
schedule is in some important ways not at all like the RTD’s bus schedule. The RTD faces real stakes. We
legal academics don’t . Our reality principle—to the extent we have one at all—is decidedly indeterminate: get
tenure/avoid showing cause. So if we want to construct a bus schedule with stops every ten yards (all in the name of rigor or precision) then
we can have at it. And realize, please, that I’m not being extreme here. It’s not like this hasn’t been done. Over and over again.68 And then
there’s the normativity thing. I once read an article that purported to elaborate about what the Constitution should be. Now what struck me
as odd was that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution is.
This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not anchored in what the
Constitution is (whatever that might be), then why not go for broke: I say let’s have a constitution that guarantees universal health care,
tastes a lot like Ben & Jerry’s ice cream, and is laugh-outloud funny. You leave it to me? I say: Go big. Is this flip? Well, of course, it is. But
hey, I’m not the one who invented this practice of normative legal thought. I’m just pointing it out. In fact, that’s what I do these days.
Check that: It’s what I used to do. I used to have a pretty good job as a satirist. Good working conditions. Not much competition. I’m out of
business now: Legal thought satirizes itself. For me now, it’s all just point and shoot. There’s
something gratuitous
about legal scholarship. No one, of course, writes that the constitution should be like Ben & Jerry’s ice cream. But just
what is it that precludes anyone from suggesting that the Constitution should guarantee universal health care. (I’d be in favor—I really
would.) The answer: there
are constraints on what we argue. Sure there are.69 And who generates . . . the
part, we do.70 So what we have is an imaginary legal thought shaped
by imaginary collective constraints, one of which is the injunction that we
should follow those constraints with great rigor. My question: Is this a neurotic structure? Yes, it is.
constraints?Well, in
Straight out—full-flower. It has to be because without the neurosis, there would be nothing there. No constraints at all. Now please understand: As a
matter of form, I have nothing against collective imaginaries. My only problem is this: if we law professors have to work so hard (and so painfully) on
our collective imaginaries, couldn’t we pick something more interesting, or important, or aesthetically enlivening, or morally salient, or politically
relevant than bus schedules? I mean, couldn’t we? Uh, no. Which raises perhaps my final point. It’s not very nice, but someone’s got to say it, and
apparently it’s going to be me. As mentioned earlier, our people are not cognitively challenged. They are, bell curve and all, very intelligent. It is easy
then for people like you and I, when we look at the extreme intricacy of the work produced by these very intelligent people, to associate the intricacy of
their work with their manifest intelligence. Indeed, we are likely to think of the relation in reciprocal terms: Because they are intelligent, their work is
intricate, and because their work is intricate, it shows great intelligence.71 But the thing I want to suggest as a possibility here is that all this intricacy of
legal scholarship is less a function of intelligence than it is a manifestation of neurosis in the face of intractable conflicts. What conflicts? Consider the
prototypical needs of the legal academic: A need to display great intelligence in a discourse (law) that will ultimately not bear it. A need to contribute to
disciplinary knowledge in a discourse which is not really about knowledge or truth in any profound sense of those terms. A need to say something
intellectually respectable within a disciplinary paradigm that we know, on some level, is intellectually compromised. A need to display control over
social, political, and economic transactions that are in important senses not subject to control. A need to activate moral and political virtue in a discourse
that uses both largely as window dressing. A need to make one’s thought seem real and consequential in a discourse that is neither. I want to suggest then,
and this is perhaps the unkindest cut of all, that within the dominant paradigm of legal scholarship, it may be that there is very little of enduring value to
be said. In the main it’s the rehearsal of a form, a genre—and not a self-evidently good one.72 I have a cheery ending and a not so cheery ending The
cheery ending is that it has not always been like this. And, maybe it doesn’t have to be like this now. The non-cheery ending goes like this: It’s
going to get worse in many ways. The forces are in play—the rankings, the administrators who
want to enhance the reps of their schools, the status insecurities of young (and old) faculty members, the pervasive triumph of pomo (ahem, ahem, told
you so)73—all these forces
then something else will happen.
will converge to produce ever more spam jurisprudence. And
Link – LGTBQ
Gay and lesbian legal discourse relegates people of color and the poor
into shadows of silence
Hutchinson 1997 (Darren Lenard [B.A., University of Pennsylvania, 1990; J.D., Yale
Law School, 1993; Law Clerk for Honorable Mary Johnson Lowe, United States District
Court, Southern District of New York, 1994-1996. Presently, Associate, Cleary, Gottlieb,
Steen & Hamilton]; Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory
and Political Discourse; 29 Conn. L. Rev. 561; kdf)
This Article introduces the concerns of this movement n13 into legal [*565] discourse in an attempt to initiate a dialogue
around issues of race and class n14 between those scholars presently engaged in the construction of gay and lesbian legal
theories. n15 Part II examines specific acts of violence and discrimination against gay, or perceived as gay, people of color,
and the legal and political challenges to these acts, in order to demonstrate the ready interplay between race, class, and
sexual subordination--or the multidimensionality of oppression. Part III contrasts the [*566]
multidimensional nature of these gay and lesbian experiences with gay and
lesbian legal theory and political discourse, which, by excluding issues of
racial and class subordination from analysis, have a narrow and essentialist
n16 focus. In Part III, I argue that gay and lesbian essentialism negates and
obscures the experiences of people of color and the poor, centralizes the
experiences of race- and class-privileged individuals, renders inadequate
the theories and solutions proposed to explain and confront sexual
subordination, and fosters tension with antiracist political agendas and with
people of color. In Part IV, I locate my racial critique of gay and lesbian legal theory and political discourse within
the extensive and ongoing anti-essentialist debates in feminist legal theory and critical race theory. n17 I also demonstrate
how this Article develops and extends these debates. Finally, I invite gay and lesbian legal theorists and political activists
to engage in a conversation around sexual, racial, and class inequality and to adopt a "mul-tidimensional framework"--or
multidimensionality--to analyze and challenge sexual subordination. By offering multidimensionality to gay and lesbian
legal theorists and political activists, I wish to provide them with a methodology by which to analyze the impact of racial
and class oppression (and other sources of social inequality) upon sexual sub-ordination and gay and lesbian experience
and to cease treating these forces as separable, mutually exclusive, or even conflicting phenomena. In time ,
gay and
lesbian scholars and activists may begin to see the terms "gay," "lesbian,"
and "homophobia" as multilayered. Furthermore, a multidimensional
construction of sexual identity oppression can enrich gay and lesbian legal
theory and political action by permitting a deeper analysis of power
inequality among gays and lesbians and between gays, lesbians, and
heterosexuals. Finally, multidimensionality will allow gay and lesbian legal
theorists and political activists to reformulate their theories and activism so
that they no longer relegate people [*567] of color and the poor (and racism and
poverty) to "shadows and silence."
The affirmative’s omission is strategic and guarantees the
continuation of classism and racism
Hutchinson 1997 (Darren Lenard [B.A., University of Pennsylvania, 1990; J.D., Yale
Law School, 1993; Law Clerk for Honorable Mary Johnson Lowe, United States District
Court, Southern District of New York, 1994-1996. Presently, Associate, Cleary, Gottlieb,
Steen & Hamilton]; Out Yet Unseen: A Racial Critique of Gay and Lesbian Legal Theory
and Political Discourse; 29 Conn. L. Rev. 561; kdf)
Although race, class, and sexual subordination actively interact in the lives
of gay and lesbian people, gay and lesbian equality discourse invariably
excludes racial and class inequity from analysis. The exclusion of race
typically occurs when it is treated as analogous to--hence separate from--sexual
orientation. For example, one gay theorist, William Paul, has specifically endeavored to determine whether
"homosexuals are a minority group with issues identical to the movements for [*584] racial and ethnic minority civil
rights." n98 To reach his conclusion that "people with a homosexual orientation do constitute a minority group," n99 Paul
purports to analyze the "differences in the discrimination directed by the majority toward Lesbians and Gay men on the
one hand and toward racial and ethnic minorities on the other." n100 Although
Paul acknowledges
passively that gays and lesbians "are members of all races, both sexes, and
all socioeconomic groups," n101 his analogy of racial "minorities" to gays
and lesbians treats the two as mutually exclusive groups, thereby omitting
gays and lesbians of color. A statement by Benjamin Schatz, the Executive Director of the American
Association of Physicians for Human Rights, captures, rather strikingly, the essentializing effects of analogical reasoning
in gay and lesbian political discourse. During an interview in which Schatz explains how the AIDS epidemic has forced gay
and bisexual men to reveal their sexual identities, Schatz states that "AIDS [has] de-invisibilized us . . . . The biggest
difference between us and blacks was that we were invisible." n102 Clearly, Schatz excludes "blacks" from his population
of "gays" ("us" and "we"). Thus, black gays are "invisible" under Schatz's analogy. n103 Race
and sexuality
analogies, as this Part demonstrates, also preclude an examination of the ways in
which racial domination and privilege impact gay and lesbian people. By
omitting people of color and ignoring white racial privilege, the analogies
obscure the potent social role of race. n104
Link - Morality
Grounding policy decisions in ideas of morality re-entrenches societal
hierarchies and eliminates any acts of dissent. Using morals as
justification for laws is just a way to lie to the public
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 83-84, DWB)
The dominant account of the role of ethics in international relations is that it is a "stand in" for material interests and is
the product of power. Such is the view of E.H. Carr:¶ Theories
of social morality are always the
product of a dominant group which identifies itself with the community as a
whole, and which possesses facilities denied to subordinate groups or
individuals for imposing its view of life on the community. Theories of international
morality are, for the same reason and in virtue of the same process, the product of dominant nations or groups of nations
... morality is the product of power. ¶ These and similar claims are found in the writings of Thucydides
and Hobbes.¶ Arguments about the irrelevance of ethics or morality are power¬ful. Translated into their assumptions,
those who say that "morality is the product of power" are actually making several claims. First, they suppose that when
individuals make ethical claims, those statements mask some "real" interests that are not ''moral." Rather, the interests
are "selfish." Further, these selfish interests or "self-interested"
behavior and arguments are
motivated at root by material causes such as the de¬sire for power or
survival. Moreover, to act self-interestedly is to be rational, in the sense of utility maximizing, while action motivated
by ethical concerns is irrational. Since states are rational, and since in the world of international
politics militarily/materially powerful states dominate (the strong do as they will, the
weak as they must), international ethics is an oxymoron. Representatives of states
who say they act for moral reasons are covering up some other, selfinterested motive. In this view, theories of world politics that give ethical accounts of behavior are at Best
mistaken and at worst mislead¬ing.¶ Another strong argument, as articulated by Joshua Cohen, grants some causal weight
to morality but suggests that morality has been internalized and is part of the interests of individuals. He argues that
"some ethical explanations.. .have force. That force derives from the general claim that the injustice of a social
arrangement limits its viability." Cohen continues: "Social
arrangements better able to elicit
voluntary cooperation have both moral and practical advantages over ¶ their
more coercive counterparts." Cohen makes this argument with specific reference to the demise of slavery,
suggesting that slavery conflicted with slave interests in "material well-being, autonomy, and dignity." Slavery is "unjust"
because it could not be the result of a free, reasonable, and informed agreement.¶ Suppose, then, that one comes to
understand certain facts, all of which can be recognized independent from the procedures of moral reason¬ing: that slaves
share the natural properties that are sufficient for being subjects of legitimate interests, that they have the fundamental
inter¬ests, and that slavery sharply conflicts with those interests. Moral rea¬soning about slavery, proceeding in light of
these facts, and giving due consideration to the interests of slaves, is bound to recognize the inter¬ests as legitimate and to
condemn slavery as unjust. To say, then, that the wrongness of slavery explains the moral belief is to note the fol¬lowing:
that moral reasoning mandates the conclusion that slavery is unjust; and that the moral belief is produced in part by that
kind of rea¬soning. And once the injustice is recognized, it is reasonable to expect that recognition plays some role in
motivation, that it contributes to the antagonism of slaves to slavery, that it adds nonslave opponents to slave opponents,
and that, once slavery is abolished, it helps to explain why there are not strong movements to bring it back. ¶ Cohen's
arguments are actually a version of rational actor the¬ory, where it is rational to act in accordance with normative beliefs.
"The moral weight also figures implicitly in the conflicting interests view . . . The conflict of slavery with legitimate slave
interests, and the fact that masters' interests in preserving slavery are not legitimate, plausibly helps to 'tip the balance' in
favor of stable departures from slavery."5¶
Ethical arguments for the state are inherently coercive and justify
legal structures. These arguments result in submission and
exclusionary practices.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 98-100, DWB)
Normative beliefs are the ethical arguments we already hold as true. When
people make ethical arguments they are first using normative beliefs in an attempt
to get others to believe as they believe, and then often trying to get them to act in
ways that are implied by or entailed in holding such a belief. Ethical arguments are
used in three contexts: to uphold existing practices, to extend normative prescriptions to new areas of practice, or to
change dominant practices and normative beliefs.¶ When advocates use them to uphold practices, ethical
arguments nor-malize, legitimize, and also support and reproduce the
existing cogni¬tive, political, and institutional order. Specifically, normative beliefs can be
enunciated in prescriptive statements that indicate what is normal. In other words, normative beliefs can
"normalize" - make certain ac¬tions and actors appear to be "normal" (and
often unquestioned) and others "abnormal." Even practices that are not done by the majority of
a population may be considered "normal" if they fit into the dominant framework or web of normative beliefs. If
actions can be related to a nor¬mative belief, they can be seen as legitimate
more than actions which are not prescribed by a normative belief. Ethical
arguments also legitimize behaviors by giving good reasons for a practice. Ethical arguments that we already believe thus
support and reproduce a larger cognitive world order (because people believe the normative prescriptions and ethical
arguments), and help maintain relations of power as people
act in ac¬cordance with the
prescriptions implied by the dominant normative beliefs. Ethical arguments
that are used to uphold dominant practices are institutionalized: the routines or
standard operating procedures of an institutional practice performed for normative reasons being justi¬fied by ethical
arguments. Much
of the work done by ethical arguments occurs in the context of
upholding existing or dominant practices and remains part of the
background, taken for granted.¶ Advocates may also use ethical arguments to
apply or extend existing normative beliefs (rules, laws, standards of
conduct) to new situations or problems. To apply existing normative beliefs in new contexts, one
must win the contest of representations and successfully frame a situation as an instance covered by the existing
normative belief. The argument may be extended by an analogy that takes this form: We do X in certain situations because
it is good; this other case, or new situation, is very much like or the same as the situations where we do X: therefore we
must ¶ extend the practice of X to this new situation if we want to do good/' This use of ethical arguments to extend
practices is perhaps the most common form of such arguments where we are conscious that ethical arguments are being
made. One should not assume, however, that the attempt to apply and extend ethical arguments to a situation is always
genuine. One of the best ways to make something "bad" look "good" is to say that it is so. "Hypocrisy
is rife in
wartime discourse, because it is especially important at such a time to appear to be in the right. It is not only
that the moral stakes are high; the hypocrite may not understand that; more crucially, his actions will be judged by other
people who are not hypocrites, and whose judgments will affect their policies toward him."
Link – Negative State Action
The aff is a shallow restriction designed to placate observers—they
trade off with deliberation and cause endless escalation of perceived
threats
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Enough examples exist to persuade the public that the network is subject to
judicial, legislative, and executive constraints. This appearance is important
to its operation, for the network derives legitimacy from the ostensible
authority of the public, constitutional branches of the government. The
appearance of accountability is, however, largely an illusion fostered by those
institutions’ pedigree, ritual, intelligibility, mystery, and superficial
harmony with the network’s ambitions. The courts, Congress, and even the
presidency in reality impose little constraint. Judicial review is negligible;
congressional oversight dysfunctional; and presidential control nominal. Past efforts to
revive these institutions have thus fallen flat. Future reform efforts are no
more likely to succeed, relying as they must upon those same institutions to
restore power to themselves by exercising the very power that they lack.
External constraints—public opinion and the press—are insufficient to check it. Both are manipulable,
and their vitality depends heavily upon the vigor of constitutionally
established institutions, which would not have withered had those external constraints had real force. Nor is it
likely that any such constraints can be restored through governmental
efforts to inculcate greater civic virtue, which would ultimately concentrate power even further.
Institutional restoration can come only from an energized body politic. The
prevailing incentive structure, however, encourages the public to become
less, not more, informed and engaged. To many, inculcated in the
hagiography of Madisonian checks and balances and oblivious of the reach
of Trumanite power, the response to these realizations will be denial. The
image of a double national security government will be shocking. It cannot be right. It sounds of conspiracy, “a
state within,” and other variations on that theme. “The old notion that our
Government is an extrinsic agency,” Bagehot wrote, “still rules our imaginations.”603
That the Trumanite network could have emerged in full public view and without invidious intent makes its presence all
the more implausible. Its existence challenges all we have been taught . There is, however, little room
for shock. The pillars of America’s double government have long stood in plain view for all to see. We have learned about significant aspects
of what Bagehot described—from some eminent thinkers. Max Weber’s work on bureaucracies showed that, left
unchecked, the inexorability of bureaucratization can lead to a “polar night of icy darkness” in
which humanitarian values are sacrificed for abstract organizational ends.604
Friedrich Hayek’s work on political organization led him to conclude that “ the greatest danger to liberty today
comes from the men who are most needed and most powerful in government, namely, the efficient expert
administrators exclusively concerned with what they regard as the public
good.”605 Eric Fromm’s work on social psychology showed how people unconsciously adopt societal
norms as their own to avoid anxiety-producing choices, so as to “escape from freedom.”606
Irving Janis’s work on group dynamics showed that the greater a group’s esprit de corps, “the
greater the danger that independent critical thinking will be replaced by
groupthink, which is likely to result in irrational and dehumanizing actions
directed against out-groups.”607 Michael Reisman’s work on jurisprudence has shown how de facto
operational codes can quietly arise behind publiclyembraced myth systems,
allowing for governmental conduct that is not approved openly by the law.608
Mills’ 1956 work on power elites showed that the centralization of authority among officials who
hold a common world view and operate in secrecy can produce a “military
metaphysic” directed at maintaining a “permanent war economy.”609 One person
familiar with Mills’ work was political scientist Malcolm Moos, the presidential speechwriter who five years later wrote President
Eisenhower’s prophetic warning.610 “In the councils of government,” Eisenhower said, “ we
must guard against the
acquisition of unwarranted influence, whether sought or unsought, by the militaryindustrial complex. The potential for the disastrous rise of misplaced power
exists and will persist.”611 Bagehot anticipated these risks. Bureaucracy, he wrote, is “the most
unimproving and shallow form of government,”612 and the executive that
commands it “the most dangerous.”613 “If it is left to itself,” he observed, “without a mixture of
special and non-special minds,” decisional authority “will become technical, self-absorbed,
self-multiplying.”614 The net result is responsibility that is neither fixed nor ascertainable but diffused
and hidden,615 with implications that are beyond historical dispute. “The
most disastrous decisions in the twentieth century,” in Robert Dahl’s words, “turned out
to be those made by authoritarian leaders freed from democratic
restraints.”616 The benefits derived by the United States from double government —enhanced technical expertise,
institutional memory and experience, quick-footedness, opaqueness in confronting adversaries, policy stability, and insulation from
popular political oscillation and decisional idiosyncrasy —need hardly be recounted. Those benefits, however,
have not been
costfree. The price lies in well-known risks flowing from centralized power,
unaccountability, and the short-circuiting of power equilibria. Indeed, in this regard the
Framers thought less in terms of risk than certainty. John Adams spoke for many: “ The nation which will not
adopt an equilibrium of power must adopt a despotism. There is no other
alternative.”617 The trivial risk of sudden despotism, of an abrupt turn to a police state or
dictatorship installed with coup-like surprise, has created a false sense of security in the United States.618
That a strongman [of the sort easily visible in history could suddenly burst forth
is not a real risk. The risk, rather, is the risk of slowly tightening centralized
power, growing and evolving organically beyond public view, increasingly
unresponsive to Madisonian checks and balances. Madison wrote, “There are more instances of the
abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden
usurpations.”619 Recent
history bears out his insight. Dahl has pointed out that in the 20th
century—the century of democracy’s great triumph—some seventy
democracies collapsed and quietly gave way to authoritarian regimes.620 That
risk correlates with voter ignorance; the term Orwellian has little meaning
to a people who have never known anything different, who have scant knowledge of history,
civics, or public affairs, and who in any event have likely never heard of George Orwell. “If a nation expects to be ignorant and free, in a state
of civilization,” Thomas Jefferson wrote, “it expects what never was and never will be.”621 What
form of government
ultimately will emerge from the United States’ experiment with double government is uncertain. The
risk is considerable, however, that it will not be a democracy.
Link - NSA
The NSA enforces compliance by focusing on questions of legality and
whether they can do surveillance and not if it is justified. Limiting
surveillance based on the legality of the circumstance reinforces this
system of compliance.
Schlanger ’15 -- Henry M. Butzel Professor of Law at University of Michigan (Margo,
Harvard National Security Journal, “Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,” Vol. 6, 113-114, DWB)
Since June 2013, we
have seen unprecedented security breaches and disclosures
relating to American electronic surveillance. The nearly daily drip, and occasional gush, of
once-secret policy and operational information makes it possible to analyze and understand National Security Agency
activities, including the organizations and processes inside and outside the NSA that are supposed to safeguard
American’s civil liberties as the agency goes about its intelligence gathering business. Some have suggested that what we
have learned is that
the NSA is running wild, lawlessly flouting legal constraints
on its behavior. This assessment is unfair. In fact, the picture that emerges from both the Snowden
and official disclosures is of an agency committed to legal compliance, although both
minor and major noncompliance is nonetheless frequent. A large
surveillance compliance apparatus is currently staffed by hundreds of people in both the
executive and judicial branches. This infrastructure implements and enforces
a complex system of rules, not flawlessly but with real attention and care. Where an authoritative
lawgiver has announced rights or rights-protecting procedures, the
compliance apparatus works—to real, though not perfect effect—to effectuate those rights
and to follow those procedures. Of course errors, small and large, occur. But even if perfect compliance
could be achieved, it is too paltry a goal. A good oversight system needs its institutions not
just to support and enforce compliance but also to design good rules. Yet the
offices that make up the NSA’s compliance system are nearly entirely compliance
offices, not policy offices; they work to improve compliance with existing
rules, but not to consider the pros and cons of more individually-protective
rules and try to increase privacy or civil liberties where the cost of doing so
is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in
compliance terms. That is, they have asked only “Can we (legally) do X?” and not
“Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of
a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of
substantive rules given the status of law rather than policy; some limited
court enforcement of those rules; and empowerment of lawyers. Intelligence
legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the
late 1970s. But I argue that it
gives systematically insufficient weight to individual
liberty, and that its relentless focus on rights, and compliance, and law has
obscured the absence of what should be an additional focus on interests, or
balancing, or policy. More is needed; additional attention should be directed both
within the NSA and by its overseers to surveillance policy, weighing the
security gains from surveillance against the privacy and civil liberties risks
and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence
legalism creates. Part I first traces the roots of intelligence legalism to the last generation of intelligence disclosures and
resulting reform, in the late 1970s. Part I then goes on to detail the ways in which intelligence legalism is embedded in
both the Foreign Intelligence Surveillance Act of 1978 (FISA) and Executive Order 12,333, which govern American
intelligence practices, and why the result is a civil liberties gap. Part II discusses the ways in which NSA’s compliance and
oversight institutions likewise embody intelligence legalism. I then move in Part III to some shortcomings of this system,
and in particular the ways in which the law and NSA’s
compliance regulations and
infrastructure fall short of full civil liberties policy evaluation. In Part IV, I examine
some of the many reforms that have recently been proposed, analyzing those that might fill that gap. In light of the
existing institutional arrangements, I sketch some thoughts on how they could do so most effectively
Following the rule-of-law in surveillance reform neglects any issues of
civil liberties. Only total reform can solve.
Schlanger ’15 -- Henry M. Butzel Professor of Law at University of Michigan (Margo,
Harvard National Security Journal, “Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,” Vol. 6, 116-118, DWB)
. But what did this incident actually accomplish? Recent disclosures underscore that the dramatics were entirely out of
scale to the actual, limited result, which was a pause—not a stop—to the challenged collection. 5 What had previously been
an entirely executive initiative was pushed into the FISA Court’s tent by a massive expansion of FISA’s pen register
provision. The authority under which the collection proceeded, four months later, was new, but the program was the same.
6 Comey and his colleagues’ actions were less standing down a freight train, and more the ordinary lawyers’ task of
assisting a client to make adjustments in order to accomplish operational goals using different methods. This
was a
compliance improvement—and it served rule-of-law values. But as far as the
civil liberties impact, the change was all but symbolic.7 The mindset of Justice Department
participants in the 2004 hospital bed incident—a stance I call “intelligence legalism”—is the topic of this Article. In her
classic book, Legalism: Law, Morals, and Political Trials, Judith Shklar defined legalism as “the
ethical attitude
that holds moral conduct to be a matter of rule following, and moral
relationships to consist of duties and rights determined by rules.”8 Legalism,
Shklar observed, is the central shared commitment of members of the legal profession.9 It is what underlies Tocqueville’s
much older observations about lawyers: If
they prize freedom much, they generally value
legality still more. They are less afraid of tyranny than of arbitrary power, and
provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.10
Intelligence legalism brings lawyers’ rule-of-law commitment into the realm
of national security and surveillance, where secrecy molds its impact in a number of important
ways. I see intelligence legalism’s three crucial and simultaneous features as: imposition of substantive
rules given the status of law rather than policy, limited court enforcement of
those rules, and empowerment of lawyers. All three were in evidence in the 2004 drama. Yet it is
no coincidence that that incident did not catalyze a civil liberties advance. In fact, this Article’s core argument is that
intelligence legalism, though useful, gives systematically insufficient weight to
individual liberty. Legalism legitimates liberty-infringing programs. And its relentless focus on
rights and compliance and law (with a definition of law that includes regulation, executive orders, court
orders, etc.) has obscured the absence of what should be an additional focus on
interests, or balancing, or policy. That additional focus is necessary, I argue, for optimal policy, which I
take to be the safeguarding of liberty where there is no cost, or acceptable cost, to security.
NSA reform links – History of the program from Bush through
Obama
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Among the principal national security initiatives that the Bush
Administration began and the Obama Administration continued were
several surveillance programs carried out by the NSA. The inception,
operation, and oversight of these programs illuminate a number of the elements
responsible for policy continuity: the symbiotic relationship between Madisonian institutions and the Trumanite network;
the Trumanites’ crucial role as authors, initiators, and executors of policy; the subservience of the courts; the fecklessness
of congressional oversight; the secretiveness and disingenuousness of the Executive; and the incentive that all share to
enough overlap exists between the Trumanite network and the
Madisonian institutions to maintain a veneer of Madisonian endorsement.
ensure that
The NSA was established in 1952 not by statute, but by President Truman’s Top Secret executive order.426 Its very
existence remained unacknowledged until it received unwanted public attention in the 1970s, when a report by the Senate
Select Committee to Study Governmental Operations with Respect to Intelligence Activities disclosed that the NSA had
kept tabs on Vietnam War opponents, assembling a “watch list” of individuals and organizations involved in the civil rights
and anti-war movements.427 The report further revealed that, between 1945 and May 1975, “[the] NSA received copies of
millions of international telegrams sent to, from, or transiting the United States.”428 Following the committee’s
investigation into domestic spying by the U.S. intelligence community, Committee Chairman Frank Church made a
prophetic statement: “[The NSA’s] capability at any time could be turned around on the American people, and no
American would have any privacy left, such [is] the capability to monitor everything: telephone conversations, telegrams,
it doesn't matter.”429 There is, Church said, “tremendous potential for abuse” should the NSA “turn its awesome
technology against domestic communications.”430 He added: I don't want to see this country ever go across the bridge. I
know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies
that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss.
That is the abyss from which there is no return.”
Church, it turns out, was one of the individuals whose overseas phone calls were tapped by the NSA in the 1970s.432
In response to such concerns, Congress in 1978 enacted the Foreign Intelligence Surveillance Act (“FISA”).433 A principal
purpose of the law was to prohibit the government from monitoring Americans’ electronic communications without a
judicially granted warrant.434 FISA set up a special court, the FISC, described above,435 to review requests for such
warrants.436 Even before 9/11, NSA Director Michael Hayden had proposed more expansive collection programs in a
transition report to the incoming Bush Administration.437 Following 9/11, Hayden quickly sought approval of a program
to monitor the communications of Americans living within the United States.438 The program “sucked up the contents of
telephone calls and e-mails, as well as their ‘metadata’ logs.”439 The Bush Administration concluded that aspects of the
proposed program probably were illegal440 and therefore considered seeking a change in the law that would permit the
expanded program.441 It decided against such a request, however, because it concluded that Congress would not
approve.442 Instead, President Bush authorized the NSA to proceed with the program on the basis of the President’s
supposed independent constitutional power as commander-inchief, spelled out in a still-classified memorandum written
by John Yoo, an attorney in OLC.443 The program went into operation on October 4, 2001.444 A change in OLC’s
leadership brought a different interpretation of the law, with the result that, in March 2004, Attorney General John
Ashcroft declined to re-authorize those aspects of the program (reportedly concerning internet metadata) that OLC now
considered illegal, with the result that President Bush rescinded his approval to the NSA to collect internet data.445 The
illegal program remained non-operational for only four months, however; during that period, Justice Department lawyers
joined with NSA officials and “immediately began efforts to recreate this authority,” an authority to which they believed
the FISC would be “amenable.”446 The Chief Judge of the FISC, Coleen Kollar-Kotelly, quickly obliged, issuing an ex parte
order on July 14, 2004.447 Kollar-Kotelly’s order permitted bulk collection of internet data, with no warrant
requirement;448 it “essentially gave NSA the same authority to collect bulk internet metadata that it had under the”
earlier program.449 None of the other judges on the FISC was apparently told about the NSA’s secret surveillance
programs.450 Nor were they told about Kollar-Kotelly’s secret order.451 This was the first time the surveillance court had
exercised any authority over the two-and-a-half-yearold surveillance program.452 The program came to public attention
when the New York Times disclosed it on December 16, 2005.453 The Times, by its own admission, had “held that story
for more than a year at the urging of the Bush administration, which claimed it would hurt national security.”454 When it
was finally published, Judge James Robertson resigned his seat on the FISC “in apparent protest of the program.”455
When President Obama took office, as noted earlier,456 he continued two particularly controversial NSA surveillance
programs. One was a program under which the NSA secretly collected the telephone records of tens of millions of
Americans who are customers of Verizon and also collected Internet communications.457 The phone records were
collected under an order issued by the FISC, also described earlier.458 The order, issued under section 215 of the
PATRIOT Act,459 included phone numbers of both parties to every call, their locations, the time the call was made, and
the length of the call.460 The order prohibited its recipient from discussing its existence.461 The second program Obama
continued, PRISM, allowed the NSA to obtain private information about users of Google, Facebook, Yahoo, and other
internet companies.462 The government claimed authority for this program under section 702 of the FISA Amendments
Act of 2008.463 When the first program, concerning telephone records, was reported by British newspaper The Guardian,
464 criticism in Congress was muted,465 and “senior government officials” in the United States were quick to release
talking points that did not deny the report but reminded everyone that “all three branches of government are involved” in
these sorts of activities.466 The NSA refused, however, to release its classified interpretation of the applicable statutory
authorities.467 One member of the Senate Intelligence Committee familiar with that interpretation—but prohibited from
discussing it publicly—said that the government’s theory under the PATRIOT Act to collect records about people from
third parties was “essentially limitless.”468 The New York Times had filed a Freedom of Information Act suit in 2011
asking for the government’s interpretation of the law, but the Obama Administration refused to say, and the courts
dismissed the suit.469 The upshot was that neither Congress nor the public had any knowledge that surveillance of this
magnitude was permitted or whether any checks were working. As Senator Chris Coons put it: “The problem is: we here in
the Senate and the citizens we represent don’t know how well any of these safeguards actually work.”470 Members of
Congress were unaware of more than simply the Administration’s interpretation of the law, however. They had no
knowledge about how the Administration actually used the phone records that the NSA collected. The Chairman of the
Senate Intelligence Committee, Dianne Feinstein, confirmed this.471 But, she added, it was important to collect phone
records of the American public in case someone might become a terrorist in the future472 (a rationale the New York Times
called “absurd”473). Feinstein’s doziness was not without precedent; an earlier chairman of the Committee, Senator Barry
Goldwater, claimed to know nothing about the CIA’s mining of Nicaraguan harbors—even though Director of Central
Intelligence William Casey had earlier told the committee.474 By contrast, the NSA did not inform the Committee about
warrantless surveillance during the Bush Administration, which the Committee, of course, never discovered on its
own.475 Senators not on the Intelligence Committee seemed equally uninterested. Normally only the senior congressional
leadership is kept fully abreast of intelligence activities, said the Senate’s second-ranking Democrat:476 “You can count on
two hands the number of people in Congress who really know.”477 When all Senators were invited to a classified briefing
by senior national security officials to explain the NSA’s surveillance programs, fewer than half attended.478 Little wonder
that in its review of congressional oversight for intelligence and counterterrorism—which it, again, described as
“dysfunctional”479— the
9/11 Commission concluded that “[t]inkering with the
existing structure is not sufficient.”480 “[T]he NSA,” The Economist concluded, “lives
under a simulacrum of judicial and legislative oversight.”481 And, it might have added,
a simulacrum of honesty.
NSA Watch list was the prime example of bureaucratic control
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
The Church Committee reported that “from the early 1960s until 1973, NSA
targeted the international communications of certain American citizens by
placing their names on a ‘watch list.’ Intercepted messages were
disseminated to the FBI, CIA, Secret Service, Bureau of Narcotics and Dangerous Drugs[], and the Department of
Defense.” The communications in question were “sent with the expectation that they were private . . . .” Warrants were not
secured. S. REP. NO. 94-755, bk. III, at 735 (1976). See JAMES A. BAMFORD, BODY OF SECRETS 428–29 (2002 ed.);
“No evidence was found, however,
of any significant foreign support or control of domestic dissidents.” S. REP.
JAMES A. BAMFORD, THE PUZZLE PALACE 323–24 (1983 ed.).
NO. 94-755, bk. III, at 743
Link - Presidential Action
Link - Presidential action depends on bureaucrat implementation – always entangles the
President
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
President Obama could give an order wholly reversing U.S. national security
policy, but he would not, because the likely adverse consequences would be prohibitive. Put differently,
the question whether the President could institute a complete about-face
supposes a top-down policy-making model. The illusion that presidents issue orders and that
subordinates simply carry them out is nurtured in the public imagination by media reports of “Obama’s” policies or
decisions or initiatives, by the President’s own frequent references to “my” directives or personnel, and by the Trumanites
own reports that the President himself has “ordered” them to do something. But true top-down decisions that order
The reality is that when the President issues an
“order” to the Trumanites, the Trumanites themselves normally formulate
the order.370 The Trumanites “cannot be thought of as men who are merely doing their duty. They are the ones
fundamental policy shifts are rare.369
who determine their duty, as well as the duties of those beneath them. They are not merely following orders: they give the
They do that by “entangling ”372 the President . This dynamic is an aspect of what
one scholar has called the “deep structure” of the presidency.373 As Theodore Sorensen put it,
“Presidents rarely, if ever, make decisions—particularly in foreign affairs—
in the sense of writing their conclusions on a clean slate . . . . [T]he basic decisions,
orders.”371
which confine their choices, have all too often been previously made.”374
The affirmative’s use of presidential action links to double
government – bureaucrats involved in all decisional loops
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
This is, again, hardly to suggest that the President is without power.
Exceptions to the rule occur with
enough regularity to create the impression of overall presidential control.
“As long as we keep up a double set of institutions—one dignified and
intended to impress the many, the other efficient and intended to govern
the many—we should take care that the two match nicely ,” Bagehot wrote.420 He
noted that “[t]his is in part effected by conceding some subordinate power to the august part of our polity . . . .”421
Leadership does matter, or at least it can matter. President Obama’s decision to approve the operation against Osama bin
Presidents are
sometimes involved in the decisional loops, as Bagehot’s theory would
predict. Overlap between Madisonians and Trumanites preserves the
necessary atmospherics. Sometimes even members of Congress are brought into the loop.423 But seldom
Laden against the advice of his top military advisers is a prominent example.422
do presidents participate personally and directly, let alone the Madisonian institutions in toto. The range of presidential
“[e]ven within the executive branch,
the president’s word is no longer final . . . .”425 When the red lights flash and the sirens wail, it is
choice is tightly hemmed in.424 As Sorensen wrote in 1981,
the Trumanites’ secure phones that ring.
Link - Policy Making
The affirmative attempts to normalize the debate space on the
grounds of focus on solely policy and utilitarian arguments -that is an
exclusionary practice.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 84-86, DWB)
The basic assumptions of rational actor theory are familiar yet bear repeating. First, people
are means to
ends rational: they devise strategies and engage in behaviors that move them efficiently toward achieving their
goals. Second, people are utility maximizers: they will choose the course of action with the greatest
perceived benefits. Third, people cal¬culate costs, risks, and benefits in an unbiased
manner. Fourth, prefe¬rences are given and stable. Rational actor theory does not pretend to tell
us about the source of preferences or interests, nor how preferences change. In sum, human behavior can be
explained in terms of rational ¶ decision processes. Individuals weigh costs, risks, and
benefits of alter-native actions, and they choose the course of action with the least costs and
risks, and the greatest benefit. In the case of Cohen's argument about the demise of slavery, an ethical
explanation makes sense because slavery conflicts with the rational slave's interest, and because it con¬flicts with slave
interests the institution of slavery is costly, in fact more costly than beneficial in most circumstances. Morality and selfinterest are thus still distinct from each other in this view, although as Gregory Raymond argues, "self-interests and norms
frequently coexist."6¶ However, normative beliefs can have force, and the power of those beliefs in argument is related
specifically to their content. People
use arguments (instrumentally) because they want to
persuade the other and they find that ethical arguments are often
persuasive. In the case of ethical arguments they want to persuade the other that
behaving in a certain way is normatively good and therefore they ought to
behave that way. Convincing ethical arguments provide good normative reasons to do one thing versus another.
The reasons given in a persuasive ethi¬cal argument seem good, first because people believe in the values put forward in
the argument, and second, because they believe that the pro¬posed course of action will help to realize those values. In
other words, when they are successful, ethical
arguments work primarily because of their
persuasive power and the source of this persuasive power is their content .
Ethical arguments may also have political power if the balance of belief
shifts to the position articulated by the ethical argument, which means that those who deploy
successful ethical arguments must be as politically savvy as those who
deploy practical, identity, or scientific arguments. Ethical arguments that occur within
political groups and among them are as important tpid ubiquitous as practical, scientific, and identity arguments in world
politics.¶ The key question is whether there is a causal relationship between normative beliefs and behaviors that become
dominant. I argue that there is, and that the
causal power of normative beliefs lies in
ethical argument. The aims in this chapter are to articulate the workings and role of ethical argument; to
explicate the relationship between ethical arguments, normative beliefs, and behavioral change; and to suggest a way to
study ethical arguments in world politics. I make my case for the importance of ethical argument in several steps. First, I
develop¶ discuss alternative theories of behavioral norm and normative belief change. Third, I develop the theory of
ethical argument that shows how ethical arguments can be persuasive. Fourth, I explore some of the reasons behavioral
norms and normative beliefs are difficult to change, but how, nevertheless, ethical arguments might seem persuasive.
Finally, I discuss methodological questions and propose a method of ethical argument analysis.
The affirmatives use of the USFG just follows a behavioral norm in the
debate community. Arguments that federal action is key is just an
attempt to silence us.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 84-86, DWB)
International relations scholars frequently talk about "norms" but do so in ways that frustrate analysis by blurring
the distinction be¬tween behavioral norms and normative beliefs. They also
emphasize common knowledge properties of "norms" that are not unique to "norms." Further, it is not
uncommon for the "norms" literature to proceed as if the dominant practice were
the same as the normative belief.¶ Behavioral norms are simply "typical, or
modal, behavior" or the dominant practice in certain contexts. Normative
beliefs are beliefs about what it is right to do. What is distinctive about prescriptive nor¬mative
statements and normative beliefs is their emphasis on what is right and good. This prescriptive normative quality is
precisely what theorists are asserting or denying has causal import, so it
is vital not to confound
normative beliefs and behavioral norms or else one risks circular and
imprecise arguments (in the form of "norms" cause "norms"). ¶ It is not unusual, even among the most
careful scholars, to precede as if common knowledge and normative beliefs are one and the same. For instance, Friedrich
Kratochwil suggests that norms
are used to as¬cribe praise or blame, but he highlights the
function of "norms" in deci-sionmaking and problem solving - ordering and coordination effects arguing that norms decrease uncertainty, allow the pursuit of shared ¶ meanings, and help actors coordinate by defining
situations and the rules of the game. For Audie Klotz, norms are beliefs, or "shared (thus social) understandings of
standards for behavior." Klotz says that "Discrimination based on racially defined categories, evident in racist language,
personal actions, or social policies, is bad, and indi¬vidual equality (lack of racial discrimination) is good." Failing
to
dis¬tinguish dominant behaviors from the beliefs that might cause them,
Klotz says: "Nor are all norms moral, since these standards can have functional
and nonethical origins and purposes." Christopher Gelpi also confounds common knowledge with
normative, that is, prescrip¬tive force, when he "emphasizes the role of norms as focal points for interpreting behavior"
and as "reputational constraints." Gregory Raymond argues that "contrary to the Hobbesian assertion that 'the
in¬dependence of states implies that there are no rules', acknowledged normative standards exist in the absence of a
common power to keep everyone in awe." But when Raymond argues that "Norms are ubiquitous . . . The web of
expectations created by norms guide behavior; even in the absence of centralized mechanisms to enforce compliance," he
does not distinguish normative beliefs from other kinds of beliefs or common knowledge. And while focusing on the
"pre¬scriptive" aspect of norms "as a standard of appropriate behavior," Finnemore and Sikkink nevertheless say,
"Norms
channel and reg¬ularize behavior; they often limit the range of
choice and constrain actions." ¶ As shared expectations about behavior, both behavioral norms and
normative beliefs may have common knowledge effects, decreasing un-certainty about what actors are likely to do in
certain circumstances, and facilitating coordination because "norms," that is, both behavioral norms and normative
beliefs, are "functional" in ways that are similar ¶ to the role of other ideas (conventions) or knowledge and institutions. In
this sense, "norms" are not unique. Non-normative beliefs (e.g. scientific propositions), habits, and rules - indeed any
form of common knowledge and agreed upon procedures - may help actors
coordinate or limit the range of choice. Because there is nothing unique about this aspect of normative
beliefs, scholars ought to take care not to confuse the possible coordinating effects of normative beliefs (that are similar to
the effects of any form of common knowledge and focal-point agreements) with the unique prescriptive characteristic of
normative beliefs.
Foreign policy decisions are governed by the elite using faulty logic.
This logic is used by the legal system to justify any actions of the state.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 11-14, DWB)
Why do people, either alone or in groups, choose one action and not¶ another? How do they even come to know that they
must make a decision?¶ Why choose blockade over invasion, or confrontation over appeasement?¶ Indeed, how do people
decide what is worth fighting for¶ at all? Surely actors
are often circumscribed by resources, or
their options¶ seem limited by the structure of choice (such as time pressure),¶ but
generally decisionmakers still have options even within constraint.¶
Individuals and groups make decisions through a process of practical
reason or argument, while the beliefs contained in those arguments help¶
actors, both in groups and by themselves, decide what to do. Reason is¶ the process individuals go through
in deciding how the world works¶ and how they will act in it.3 Political argument is public reason.¶
The necessity of making good arguments, ones that convince others,¶ preoccupies domestic governments, social
movements, and associations.¶ Why? Because justification is necessary. What is not clear to¶ scholars of world politics is
how argument
could have any importance¶ outside the domestic realm. Focusing on
argument thus runs against the¶ grain of international relations theory.4 However, analysis of the process¶
and content of arguments is crucial for understanding constancy¶ and
change in world politics. Argument is not “merely” rhetoric.5 Even¶ those who use brute
force make arguments about why it was “necessary”¶ or “wise” to do so.¶ The
tendency to downplay argument, belief, culture, and political discourse¶ has deep roots. Political philosopher Thomas
Hobbes proclaimed¶ “covenants, without the sword, are but words, and of no strength to secure¶ a man at all.”6 Hans
Morgenthau, in Politics Among Nations, urges¶ scholars of international politics
to assume rationality
and a drive for power.7 Given an assumption of rationality, defined as the pursuit of¶ one’s interests, it
matters little what actors think or how they use arguments¶ to persuade
others to act. Structural theories of international¶ politics, which emphasize the anarchical
character of the international¶ system and suggest that most outcomes can be explained by reference¶ to the distribution of
capabilities (most importantly, power) among¶ states, similarly assume and emphasize a narrowly defined rationality.¶
Kenneth Waltz argues that systemic
forces of international politics¶ (the balance of power)
push actors to be “‘sensitive to costs’ ... which for¶ convenience can be called an assumption of
rationality.”8 Further, even¶ constructivists – who argue that rules regulate behavior and constitute¶ actors’ identities –
appear to hold the view that there is a rational core¶ to behavior in international politics.9 Post-structural and critical
theory¶ approaches to world politics, which emphasize discourse, come closest¶ to articulating a role for argument.10¶
The process of foreign policy decisionmaking and international relations¶ is
characterized by political arguments that occur among elites,¶ within
organizations, between elites and masses, in the public sphere,¶ within
authoritarian states, and in the anarchical international system.¶ There is a tight
relationship between belief and argument: beliefs are¶ translated into political action through reasoned argument. Even
when¶ beliefs appear, by themselves, to lead
to actions such as the use of force¶ by states,
actors reason and give reasons to others about why force must¶ be used.
Reasoning involves both individual reflection and political,¶ or public, argument. Arguments and beliefs gain their content
and are intelligible through and within cultures. In other words, arguments depend¶ on and refer to beliefs and those
beliefs are embedded in a context¶ of other beliefs which may or may not be explicit or structured. Argument¶ in foreign
policy decisionmaking and international politics is only¶ one species of the processes of international politics.11
Public policy norms are geared to ensure stability for hegemonic
powers. Following these norms just gives more power to the state.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 92-95, DWB)
There are several ways to think about the possible causal relationships between normative beliefs and behavioral norms:
normative beliefs as irrelevant; normative beliefs and behavioral norms as rational; and nor-mative beliefs as part of
reason or elements of ethical argument.¶ Some realist theories of international relations argue, as noted above, that
normative beliefs are causally irrelevant. As Hans Morgenthau claimed, "A realist theory of international politics will also
avoid the other popular fallacy of equating the foreign policies of a states¬man with his philosophic or political
sympathies, deducing the for¬mer from the latter."25 Thus, Morgenthau argued, the
role of nor¬mative
beliefs may be simply embodied in the tendency of foreign policy
decisionmakers to think that their own views are right. Mor¬genthau implored
scholars of foreign policy to avoid making that mistake. "To know that nations are
subject to the moral law is one thing, while to pretend to know with certainty what is good and evil in relations between
nations is quite another... On the other hand, it
is exactly the concept of interest defined as
power that saves us both from that moral excess and that political folly."26 If
normative content does matter, realists see the role of ethical argu¬ments as only "instrumental," as "moral justification
for the power quest."2' Realists answer the question of the origins of behavioral norms with the argument that behavioral
norms are contingent, accidental historical phenomena that are maintained by habit and ex¬tended by custom or further
accident. Or, as E.H. Carr argued, morality reflects the interests of the dominant power .¶
The second view, that "norms" are rational and functional, is ar¬ticulated by both realist and liberal international
relations theorists. In this view, the causal force of normative beliefs, and actors' re¬ceptivity to particular ethical
arguments, derives from the extent to which "norms" are seen as customary. Several scholars take this Approach. As
Keohane argues, international
regimes "perform the function of reducing
uncertainty and risk by linking discrete is¬sues to one another and by
improving the quantity and quality of information available to
participants."28 As Robert Axelrod argues, norms may reduce uncertainty and facilitate coordination by
pro¬viding a focal point.29 Similarly, Christopher Celpi suggests that "Norms are enabling when they serve as focal
points, which I label normative referents, to help states coordinate their behavior. In this case, norms
alter state
behavior by helping them interpret the be¬havior of other states in an
uncertain international environment.''" Conceptual confusion - confounding prescriptive norms
with com¬mon knowledge effects and dominant behaviors - is evident in these statements. This has the effect that, rather
like the first "normative be¬liefs are irrelevant" view, the rational and functional explanation for the causal force of
"norms" boils down to the position that specific
qualities of perceived goodness are
irrelevant. This is because the causal force of norms, under this hypothesis, derives from
their ability to decrease un¬certainty and coordination costs by, for example,
providing focal points. Another version of the rational norms perspective is an evolutionary/ practical account of
behavioral norms, such as proposed by Robert Axelrod, where "what works well for a player is more likely to be used again
while what turns out poorly is more likely to be discarded." There is some randomness, but the
emphasis is on
functionality and trial and error processes. More efficient "norms" triumph; states
do what works and "the analysis of what is chosen at any specific time is
based upon an operationalization of the idea that effective strategies are
more likely to be retained than ineffective strategies." Ann Florini, who ar¬gues that
norms are like genes, suggests that the "reproductive success" of "norms" depends on natural selection processes. First,
"whether a norm becomes prominent enough in the norm pool to gain a foothold"; second, "how well it interacts with
other prevailing norms with which it is not in competition, that is the 'normative environment'"; and fi¬nally, the
"external environmental conditions" such as the distribution of power and the availability oljhuman or natural resources. ¶
behavioral
norms and normative be¬liefs (to the extent that there are normative beliefs) are imposed
and maintained by hegemons to suit their material interests . The reason the hegemon
Rational norms theorists also sometimes argue, consistent with the norms are irrelevant school, that
prefers one norm over another is not a normative belief in the goodness or rightness of the behavior. Under this
hypothesis, the causal force behind behavioral norms is rational material i has become a norm is only a testament to the
power of the hegemon to impose the desired behavior and impose costs on
trans¬gressors. The norm simply suits the "interests" of a hegemon and the
"preferences of more powerful actors will be accorded greater weight." ¶ In sum, according to these rational/functional
accounts of behavioral norms, the
adoption of norms is a rational activity which
facilitates coordination and reduces uncertainty for many, or at least for
one pow¬erful actor. Normative content is basically irrelevant - normative beliefs are epiphenomenal; any
ethical meaning is essentially a gloss on ma¬terial interests. Particular behavioral norms are preferred because they
provide stability rather than the instability of having no expectations; they are "devices to overcome the barriers to more
efficient coordina¬tion" in an anarchic environment. Actors keep their normative com¬mitments because of the "costs
that international audiences (i.e. other governments) may impose on state leaders if they do not keep their commitments."
But, as the discussion above should have made clear, any common knowledge and agreement on a convention could be
"ra¬tional." The specifically normative content would seem to be irrelevant in the rational actor account of "norms." Thus,
for the most part, the ra¬tional interest account boils down to the position that normative beliefs are
irrelevant/epiphenomenal.
Link - Right to Privacy
Rights to privacy are little more than a neoliberal construct used to
justify exploitation in the name of efficiency- reject the 1ac’s false
diagnosis of the ‘rule of law’
Turin; **M.Sc. Candidate, International University College of Turin; LL.M. Candidate,
Harvard Law School (January, Marco and Ugo, Bocconi School of Law); (“GLOBAL LAW
& PLUNDER: THE DARK SIDE OF THE RULE OF LAW”, Ugo Mattei and Bocconi
Morpurgo, Bocconi School of Law Student- Edited Papers, 04/01/10,
http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=bocconi_legal_pa
pers, 06/24/15) JG
It is often said that the 2002 Argentinean crisis was favoured by the Washington Consensus or¶ neo-liberal policy. But
what is neo-liberalism? What are its roots? Who are the actors¶ implementing its political projects? How does neoliberalism relate to plunder and the rule of¶ law?¶ Neo-liberalism
can be seen as a
revolutionary theory accompanied by praxis. Just as the¶ building of socialism in the Soviet
Union was the product of a theory (Marxism) and praxis¶ (Leninism), reacting against a deeply grounded political order
(Russian czarism), similarly neoliberalism¶ is
the product of theory and praxis reacting
against a previous order, the welfare state.¶ This simple parallel is sufficient to show how the
Regan/Thatcher revolution, which spawned the¶ neo-liberal praxis, can be
seen as a reactionary move. The neo-liberal revolution targeted¶ progressive
social and political settings. It has reacted against a frontier of institutional¶ developments,
the so-called welfare state, and against the accompanying attempt to build, in a¶ complex society, a
structure capable of responding at least in part to the needs of its weaker¶
members. Neo-liberal theory blamed inefficiency on the welfare state. Neoliberal praxis has¶ been grounded in privatization, deregulation, downsizing,
outsourcing and taxation cuts.¶ Consequently, neo-liberalism can be considered to be, more than a
revolution, a restoration of¶ the nineteenth century political setting, in a society that for the first three quarters of the¶
twentieth century had moved worldwide in the direction of more socially concerned models of¶ development. Theories of
the ‘social’ in legal and political thinking began to unfold in the latter¶ part of the nineteenth century and became a
dominant pattern of legal and political thought by¶ the second decade of the twentieth century.16 These social models put
at the centre of the picture¶ the social group (or the state), but to better serve the individual in society: affirmative rights¶
rather than negative liberties. These social models originated in French and German political¶ thought and in the
Scandinavian praxis, but spread well beyond the contours of the Western legal¶ tradition. We can find welfare state
theories in Catholic solidarity thinking, in the intellectual¶ imaginary of the Second International, in Egyptian
modernization efforts, in Mexican¶ revolutionary rhetoric, in Argentinean Peronism and, of course, in the social platform
of Teddy¶ Roosevelt and Franklin Delano Roosevelt. These theories certainly display a notable component¶ of ambiguity,
to the point of often being functional to bolster authoritarian and even fascist¶ regimes. Nevertheless, after the horrors of
World War II, social theories were purified of their¶ degenerations; they were enriched by Keynesian economics, and
provided an ideal of advanced,¶ progressive society throughout the capitalistic bloc.¶ With the raise of the political and
economic theory of neo-liberalism, the welfare state, rather¶ than being seen as one of the most advanced frontiers of
human civilization that capitalism could¶ attain, began to be considered a wasteful bureaucratic organization to be
abandoned as rapidly as¶ possible. Since then, state
legislation has been challenged as corrupt
and captured by special¶ interests. Exploiting the ambiguous relationship
between socialism and the social, political and¶ economic theories grounding the welfare state, neoliberalism emphasizes the value of individual¶ freedom and portrays the
state as the enemy of private property and self-determination. An¶ activist
progressive and proactive government attempting to redistribute some public wealth¶ among social
classes is presented as a violation of the rule of law.¶ 16 See Duncan Kennedy, ‘Two
globalizations of law and legal thought 1850-1968’ (2003) 36 Suffolk Law¶ Review 631. ¶ BOCCONI SCH. L. STUDENTED. PAPERS, PAPER NO. 2009-03/EN 10¶ LAST MODIFIED: 04/01/2010¶ This
simplistic platform,
based on notions of sanctity of private property and free enterprise,¶ has
effectively revived notions of ‘freedom of contract’ as a limit to state intervention that
courts¶ of law had considered obsolete since the 1930s even in the United States.¶ The
trend in policy
towards the reduction of the role of the state in the economy, and the¶
enhancement of the protection of property rights and contracts through a ‘strong’ legal
system¶ (rule of law), has characterized, on the one hand, bipartisan legal and economic recipes in the¶
Western world and, on the other hand, the true ‘economic constitution’ of the post-Cold War¶ international
assertion of power known as the Washington Consensus.¶ The simultaneous revamping and
reconstruction of the institutions of global financial¶ stability—the IMF and the World
Bank—, that the Anglo-American winners of World War II¶ had created at Bretton Woods in 1944, transformed
international financial institutions into global¶ legislators, by theoretically transforming
the very idea of law, from a political artefact into a¶ neutral technology. Without such paradigm shift the
interference of the Bretton Woods¶ institutions with targeted legal systems would have been
impossible to legitimize, given the fact¶ that their bylaws expressly forbid political interventions.17¶
Justifying legal reforms with the idea of the need to create a solid legal framework (rule of¶ law) for the development of
market economies, the World Bank and the IMF have implemented,¶ thanks to the mechanism of ‘conditionality’, a wide
and radical series of reforms throughout the¶ ‘developing world’. The trend has been to deregulate, downsize, outsource
and privatize.¶ What
is most important to observe is that international financial
institutions, when intervening¶ as global legislators imposing legal and
judicial reforms, have been completely insensitive to the¶ local complexities
that characterize targeted countries. The high level of self-confidence that¶ characterizes the West
determines a universalistic attitude, which denies context specificity.¶ Universalism and double standards18 are reflected
in the unfolding conception of the rule of law.¶ Furthermore, in pursuit of a neo-liberal world, the rule of law is considered
as a universal¶ minimal legal system offering the best possible model of development. The Bretton Woods¶ institutions,
transformed into global
legislators by the contractual power to condition¶ international financial aid to
played a major role in transforming the¶ rule of law into
an instrument of plunder in the interest of large international investors.¶
domestic law reform, have
Keynesian economics, the leading doctrine behind the welfare state with its strong link with¶ politically supported
legislation and regulation, came under attack at the same moment in which¶ a conception of the law as an aggregate of
technical and neutral private law rules, to be evaluated¶ in terms of economic efficiency rather than substantial justice,
became dominant in the United¶ 17 The Articles of Agreement of the International Bank for Reconstruction and
Development (IBRD, later World¶ Bank), available at
<http://siteresources.worldbank.org/EXTABOUTUS/Resources/ibrd-articlesofagreement.pdf>,¶ contain three provisions
intended to prevent political intervention of this institution in member countries and to¶ prohibit it from taking political
or non-economic considerations into account. These are Article III, Section 5(b);¶ Article IV, Section 10; and Article V,
Section 5(c) of the IBRD Articles. Article IV, 3(b) of the articles of agreement¶ that founded the IMF (available at
<www.imf.org>) contains similar provisions, requiring the Fund to ‘respect the¶ domestic social and political policies of
members’. On the expansion of the World Bank’s competences without¶ violating its mandate, see A Santos, The World
Bank’s Uses of the ‘Rule of Law’ Promise in Economic Development¶ (nt 10) 269; and Ibrahim Shihata, The World Bank
and ‘Governance’ Issues in its Borrowing Members, in 1 The¶ World Bank in a Changing World 53 (1991) 85.¶ 18 ‘Double
standards’ provide justification for considering unacceptable in certain contexts what in other contexts¶ is perceived as
perfectly legitimate. Legal and economic policy supported by international financial institutions is ¶ often based on a
double standard: for instance, when Western countries defend their protectionist policies while¶ imposing open policies
on weaker countries. For some examples, see U Mattei and L Nader, Plunder (nt 13) 130-¶ 133. ¶ GLOBAL LAW &
PLUNDER: THE DARK SIDE OF THE RULE OF LAW 11¶ LAST MODIFIED: 04/01/2010¶ States. As a consequence of
this intellectual paradigm, law and institutions became new targets¶ for the World Bank and IMF interventions, breaking a
long-established taboo against intervening¶ in the law, which was perceived as a key aspect of the political process of
recipient countries.¶ The law was now neutral and technical. It could be targeted, modified and fixed, directly or¶
indirectly, in the same way in which it is possible to intervene to fix a sewer system or a hospital.¶ Neo-liberal economists
and lawyers trained in law and economics became the most powerful¶ advisers of the World Bank and the IMF, in
developing their recipes of ‘good governance’. Since¶ dismantling is easier than constructing, such advisers busily showed
how easy it is to change¶ complex aggregates of local institutions in favour of market friendly ones. The concept of law¶
that dominates the economists’ discourse is indeed so simple as to be universal. Economists have¶ traditionally been
impatient with the complexities that occupy lawyers. To them, legal¶ complexity
as an aggregate of a
variety of context-specific institutional and political structures,¶ as well as
the local political and legal process, is only a source of transaction costs,
which¶ discourages investments and the efficient allocation of resources.
According to their vision, the¶ law should facilitate rather than restrict
market transactions. Thus, local institutional settings¶ should be ‘adjusted’ in order to facilitate the free flow
of resources from who values them less to¶ whoever values them more (in order to reach an ‘efficient allocation’).¶ In these
adjusting exercises, collectively known as structural adjustment programs (SAPs), the¶ political process plays no role.
Indeed, the strategy is exactly to focus on the ‘merely technical’¶ nature of the simple changes that are required in order to
secure transfers of property to the most¶ efficient users. It is difficult not to see how such efficient transfers are deeply
connected to the¶ initial endowments of resources. Indeed, the ‘willingness to pay’ for a given resource, the¶ yardstick that
economists use in order to see whether such a resource is actually in the hands of¶ whoever values it most, is a function of
the ‘capacity to pay’, which in turns depends on the¶ amount of resources already available to each of the actors of the
transaction. Consequently,
the¶ rich are systematically favoured when policy is
evaluated in terms of economic efficiency, which¶ explains the enormous
increase in the gap between the rich and the poor under neo-liberal¶
globalization. Global neo-liberalism applies the logic of ‘willingness to pay’ to all resources¶ wherever they might
be located. In the neo-liberal scheme, all resources, such as knowledge,¶ land and labour, wherever located, must be
available for whoever is willing to pay for them. Any¶ measure to defend local policy-making is condemned as an attempt
to close the market, an¶ anathema for neo-liberal policy.¶ Economic policies underlying structural adjustment are thus
promoted as responding to higher¶ universal needs and standards, those of efficiency and economic growth, which are
defined as¶ superior to those local interests that the (local) political process usually attempts to satisfy. The¶ (local)
political process is then provided with a new first priority: the implementation of the¶ ‘simple’ institutional conditions
capable of grounding an efficient marketplace for corporate¶ actors. SAPs—recently renamed comprehensive development
frameworks—drafted by the¶ international financial institutions are implemented and enforced by direct (more recently,¶
‘participated’) economic conditioning, thus reaching the local political process with irresistible¶ power, being poised
beyond reach of both government and opposition parties. Indeed, they can¶ only be evaluated and judged by macrogrowth and other indices, interpreted by the financial¶ groups of the IMF, World Bank and of private rating agencies.19¶
19 See, for instance, the ‘Doing Business’ reports of the Rapid Response Unit of the World Bank—freely¶ downloadable at
<www.doingbusiness.org>—. The Doing Business reports provide measurements and rankings of¶ business regulations
and their enforcement across 181 national economies and others at the sub-national and ¶ BOCCONI SCH. L. STUDENTED. PAPERS, PAPER NO. 2009-03/EN 12¶ LAST MODIFIED: 04/01/2010¶ It is important to stress that while this key
neo-liberal strategy is more visible and more direct¶ in developing transitional countries, it is by no means limited to them.
Even in contexts¶ traditionally within the centre, like Germany for example, the logic of neo-liberalism has not¶ been less
influential in determining winning political platforms in the aftermath of the Cold War.¶ Neo-liberal politics, precisely
because they privilege the universal needs of market order over¶ the local needs of the political constituency, are often
unpopular and spark resistance. Despite the¶ empty rhetoric of ‘equitable development’, the
losers in neoliberal globalization processes are¶ the weakest layers of the population,
such as already impoverished farmers forced to buy¶ genetically modified
seeds that work only for a cycle, small shopkeepers displaced by the global¶
chains of distribution, blue collar workers forced to accept pays cuts so as to
not lose their jobs.¶ Typically, such a large number of losers are alienated from an electoral process dominated
by the¶ rich and by corporate investment. In the United States, more than 80 percent of
individual¶ contributions to politics come from the top 0.25 percent of the
population; in this model of¶ democracy, corporate actors outspend by more than 10 times trade unions and other
non-profit¶ organizations. According to an ‘economic’ reading of democracy, contributions to the political¶ process are
seen as investments so that it is natural that their returns favour whoever made such¶ investments. What
follows
is the irrelevance of the electoral process for whoever cannot afford¶ to
invest into it. This is by no means limited to US politics. An inverse relationship between the¶ degree to which neoliberal policies are implemented and people’s participation in the electoral¶ process is easy to detect worldwide.¶
Structural adjustment has long been the tool to implement development policies with the stick¶ of conditionality. More
recently, structural adjustment, a notion deeply resented by many¶ borrowing countries, has been renamed
comprehensive development, broadening even more the¶ subject matter of non-strictly financial intervention.
Conditionality has also been renamed, with¶ another move in the direction of politically correct, participatory approach,
but it would be¶ difficult to locate actual policy changes. The original idea, advanced by Lord Keynes at Bretton¶ Woods, of
worldwide economic stability and ordered growth, under the umbrella of a bank and a¶ fund with a role of intervention to
sustain distressed economies, was changed only once in the¶ early 1980s into a model of world governance by
transnational, unaccountable, law-making¶ political actors.¶ At Bretton Woods, participating countries agreed to submit to
a degree of international¶ economic discipline, but received guarantees of non-interventions in internal political
matters.20¶ The re-definition of the very concept of law and the very change of attitude of the Bretton¶ Woods institutions
during the Regan/Thatcher revolution has since then allowed interventions on¶ the legal systems that have been
essentially political. Structural adjustment is essentially the¶ contractual agreement by which developing countries give up
economic and legal sovereignty in¶ consideration for financing. Because the desperate need for financing in the third
world has long¶ been created by strong economic and political actors, themselves dictating the economic policies¶ of the
Bretton Woods institutions, such contractual agreements are affected by an imbalance of ¶ regional level. The Doing
Business reports, highly influenced by the ‘legal origins’ scholarly movement and¶ characterized by a very Western
(common law)-centric attitude, claim to have ‘discovered’ which are the universally¶ most efficient legal solutions and thus
promote their adoption indistinctively to all countries in the world, proposing¶ them as best practices for business.¶ 20
See, for example, Article IV, 3(b) of the articles of agreement that founded the IMF, available at¶ <www.imf.org>, as well
as Article IV, sec. 10 of the agreement establishing the International Bank for¶ Reconstruction and Development termed
‘political activity prohibited’, available at¶ <http://siteresources.worldbank.org/ibrd/>. ¶ GLOBAL LAW & PLUNDER:
THE DARK SIDE OF THE RULE OF LAW 13¶ LAST MODIFIED: 04/01/2010¶ powers.21 Consequently, they
frame
the law to serve the interests of the stronger actors, thereby¶ operating to
transform the rule of law into a facilitator of plunder and an instrument of
social¶ oppression. Naturally, the rhetoric of the rule of law serves its powerful ideological role and it is¶ by no
means abandoned.¶ Today, the IMF and the World Bank base their lending to underdeveloped economies on¶ certain
predetermined conditions. Such conditions, in theory, should enable the adjusting country¶ to change the structure of its
economy so that in the long run it can meet the needs of efficient¶ utilization of the factors of production to ensure
sustained growth. In
practice, this pompous¶ description means that once economic sovereignty is
handed over to the international financial¶ institutions, the political
economy of a state must be restructured along the lines of neo-liberal¶
orthodoxy. This implies that ‘the role of the State in all its progressive and social welfare¶ functions is being sharply
reduced, and the economies themselves have been opened via trade¶ and financial liberalization to the unimpeded forces
of world market competition’.22¶ With this clear strategy in the developing world, and a similar one for Western
economies, the¶ international financial institutions exercise today tremendous political power worldwide, outside ¶ of any
kind of control except the will of their majority shareholder. One should appreciate, in¶ order to avoid maintaining the
discussion at a senseless abstract level, that the international¶ financial institutions—not imagined as outright political
actors in the days of their establishment¶ at Bretton Woods in 1944—are not structured to function as political institutions.
Consequently,¶ and quite naturally, they do not maintain any space for democratic legitimacy. Being organized¶ as
hierarchies along the model of the Anglo-American public company, a chief executive officer¶ (CEO) and a board are in
charge of strategic decision-making that is then implemented by a¶ hierarchical structure, acting with a variety of advisory
boards, as in any other kind of complex¶ economic organization.
Link – Rights Talk
The affirmative’s call for rights is lodged in bad faith in the law
Kennedy 2002 (Duncan [Carter prof of general jurisprudence @ Harvard] The
Critique of Rights in Critical Legal Studies;
http://duncankennedy.net/documents/The%20Critique%20of%20Rights%20in%20cls.
pdf; kdf)
A final parallel is that rights talk, like legal reasoning, is a discourse–a way of
talking about what to do that includes a vocabulary and a whole set of
presuppositions about reality. Both presuppose about themselves that they are
discourses of necessity, of reason as against mere preference. And it is therefore
possible to participate in each cynically or in bad faith. Cynicism means
using rights talk (or legal reasoning) as no more than a way to formulate
demands. They may be “righteous” demands, in the sense that one believes
strongly that they “ought” to be granted, but the cynic has no belief that the specific
language of rights adds something to the language of morality or utility. When one
attributes the success of an argument couched in rights language to the
other person’s good-faith belief in the presuppositions of the discourse, one
sees the other as mistaken, as having agreed for a bad reason, however much one
rejoices in the success of a good claim. Bad faith, here and in the case of legal
reasoning, means simultaneously affirming and denying to oneself the
presupposed rationality of the discourse, and of the particular demand cast in its
terms. It means being conscious of the critique of the whole enterprise,
sensing the shiftiness of the sand beneath one’s feet, but plowing on “as if”
everything were fine. Bad faith can be a stable condition, as I have argued at length
elsewhere for the case of legal reasoning.14 Or it can turn out to be unstable, resolving
into loss of faith or into renewed good faith.
Link – Security/Threats
The 1ac’s method of threat assessment dooms national security law to
threat inflation and misplaced restrictions—results in destabilizing
arms races, public backlash, and crackdowns
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
the United States now confronts a precarious situation. Maintaining
the appearance that Madisonian institutions control the course of national security
policy requires that those institutions play a large enough role in the
decision-making process to maintain the illusion. But the Madisonians’ role
is too visibly shrinking, and the Trumanites’ too visibly expanding, to
maintain the plausible impression of Madisonian governance.504 For this reason and others,
public confidence in the Madisonians has sunk to new lows.505 The Trumanites have
resisted transparency far more successfully than have the Madisonians, with unsurprising
results. The success of the whole dual institutional model depends upon the
maintenance of public enchantment with the dignified/ Madisonian institutions.
This requires allowing no daylight to spoil their magic,506 as Bagehot put it. An element
of mystery must be preserved to excite public imagination. But
transparency—driven hugely by modern internet technology, multiple informational sources, and social media— leaves little to
the imagination. “The cure for admiring the House of Lords,” Bagehot observed, “was to go and look at it.”507 The public has
gone and looked at Congress, the Supreme Court, and the President, and
their standing in public opinion surveys is the result. Justices, senators, and
presidents are not masters of the universe after all, the public has
discovered. They are just like us. Enquiring minds may not have read enough of Foreign Affairs508 to assess the Trumanites’
If Bagehot’s theory is correct,
national security polices, but they have read enough of People Magazine509 to know that the Madisonians are not who they pretend to be. While the public’s
too many people will soon be too
savvy to be misled by the Madisonian veneer,510 and those people often are opinion
leaders whose influence on public opinion is disproportionate to their
numbers. There is no point in telling ghost stories, Holmes said, if people do not
believe in ghosts.511 It might be supposed at this point that the phenomenon of double government
is nothing new. Anyone familiar with the management of the Vietnam War 512 or the unkillable ABM program 513 knows that double government has been around for
a while. Other realms of law, policy, and business also have come to be
dominated by specialists, made necessary and empowered by everincreasing divisions of labor; is not national security duality merely a
contemporary manifestation of the challenge long posed to democracy by
the administrative state-cum-technocracy?515 Why is national security
different? There is validity to this intuition and no dearth of examples of the frustration confronted by
Madisonians who are left to shrug their shoulders when presented with complex
policy options, the desirability of which cannot be assessed without high
levels of technical expertise. International trade issues, for example, turn frequently upon esoteric econometric analysis beyond the
unfamiliarity with national security matters has no doubt hastened the Trumanites’ rise,
grasp of all but a few Madisonians. Climate change and global warming present questions that depend ultimately upon the validity of one intricate computer model
The financial crisis of 2008 posed similar complexity when experts
insisted to hastily-gathered executive officials and legislators that—absent massive and immediate
intervention—the nation’s and perhaps the world’s entire financial infrastructure would face
imminent collapse.516 In these and a growing number of similar situations, the “choice” made by the Madisonians is
increasingly hollow; the real choices are made by technocrats who present
versus another.
options to Madisonians that the Madisonians are in no position to assess. Why is
national security any different? It is different for a reason that I described in 1981: the organizations in question “do not
An
unrestrained security apparatus has throughout history been one of the
principal reasons that free governments have failed. The Trumanite network holds
within its power something far greater than the ability to recommend higher import duties or more windmills or
even gargantuan corporate bailouts: it has the power to kill and arrest and jail, the power to see and hear and read
peoples’ every word and action, the power to instill fear and suspicion, the power to quash investigations and quell speech, the power to shape public
debate or to curtail it, and the power to hide its deeds and evade its weak-kneed overseers. It holds, in short, the power
of irreversibility. No democracy worthy of its name can permit that power to escape the control of the people. It might also be
supposed that existing, non-Madisonian, external restraints pose counterweights that compensate for
the weakness of internal, Madisonian checks. The press, and the public sentiment it partially shapes, do constrain the abuse of power—but only up to a point. To
the extent that the “marketplace of ideas” analogy ever was apt, that
marketplace, like other marketplaces, is given to distortion. Public outrage is notoriously fickle,
manipulable, and selective, particularly when driven by anger, fear, and indolence. Sizeable
regulate truck widths or set train schedules. They have the capability of radically and permanently altering the political and legal contours of our society.”517
segments of the public—often egged on by public officials—lash out unpredictably at imaginary transgressors, failing even in the ability to identify sympathetic
allies.518 “[P]ublic opinion,” Sorensen wryly observed, “is not always identical with the public interest.”519 The influence of the media, whether to rouse or
dampen, is thus limited. The handful of investigative journalists active in the United States today are the truest contemporary example of Churchill’s tribute to the
Royal Air Force.520 In the end, though, access remains everything to the press. Explicit or implicit threats by the targets of its inquiries to curtail access often yield
Members of the public obviously are in no position to complain
when a story does not appear. Further, even the best of investigative journalists confront
a high wall of secrecy. Finding and communicating with (on deep background, of course) a knowledgeable, candid source within an opaque
editorial acquiescence.
Trumanite network resistant to efforts to pinpoint decision-makers521 can take years. Few publishers can afford the necessary financial investment; newspapers
are, after all, businesses, and the bottom line of their financial statements ultimately governs investigatory expenditures. Often, a second corroborating source is
required. Even after scaling the Trumanite wall of secrecy, reporters and their editors often become victims of the deal-making tactics they must adopt to live
comfortably with the Trumanites. Finally, members of the mass media are subject to the same organizational pressures that shape the behavior of other groups.
They eat together, travel together, and think together. A case in point was the Iraq War. The Washington Post ran twentyseven editorials in favor of the war along
with dozens of op-ed pieces, with only a few from skeptics.522 The New York Times, Time, Newsweek, the Los Angeles Times, and the Wall Street Journal all
marched along in lockstep. 523 As Senator Eugene McCarthy aptly put it, reporters are like blackbirds; when one flies off the telephone wire, they all fly off.524
the premise—that a vigilant electorate fueled by a skeptical press
will successfully fill the void created by the hollowed-out Madisonian institutions—is wrong.525 This premise supposes that
those outside constraints operate independently, that their efficacy is not a function of the efficacy of internal, Madisonian checks.526 But the
internal and external checks are woven together and depend upon one another. 527 Non-disclosure
More importantly,
together
agreements (judicially-enforced gag orders, in truth) are prevalent among those best positioned to criticize.528 Heightened efforts have been undertaken to crush
vigorous investigative journalism and to prosecute and humiliate whistleblowers and to equate them with spies under the espionage laws. National security
documents have been breathtakingly over-classified. The evasion of Madisonian constraints by these sorts of policies has the net effect of narrowing the
marketplace of ideas, curtaining public debate, and gutting both the media and public opinion as effective restraints.529 The vitality of external checks depends
Some suggest
that the answer is to admit the failure of the Madisonian institutions, recognize that for all
their faults the external checks are all that really exist, acknowledge that the
Trumanite network cannot be unseated, and try to work within the current
framework.530 But the idea that external checks alone do or can provide the needed safeguards is false. If politics
were the effective restraint that some have argued it is,531 politics—intertwined as it is with law—would have
produced more effective legalist constraints. It has not. The failure of law is
and has been a failure of politics. If the press and public opinion were
sufficient to safeguard what the Madisonian institutions were designed to protect, the story of democracy would
consist of little more than a series of elected kings, with the rule of law having frozen with the signing of Magna Carta in
upon the vitality of internal Madisonian checks, and the internal Madisonian checks only minimally constrain the Trumanites.
1215. Even with effective rules to protect free, informed, and robust expression—which is an enormous assumption—public opinion alone cannot be counted upon
to protect what law is needed to protect. The hope that it can do so recalls earlier reactions to Bagehot’s insights—the faith that “the people” can simply “throw off”
their “deferential attitude and reshape the political system,” insisting that the Madisonian, or dignified, institutions must “once again provide the popular check”
that they were intended to provide.532 That, however, is exactly what many thought they were doing in electing Barack Obama as President. The results need not
be rehearsed; little reason exists to expect that some future public effort to resuscitate withered Madisonian institutions would be any more successful. Indeed, the
added power that the Trumanite network has taken on under the Bush- Obama policies would make that all the more difficult. It is simply naïve to believe that a
sufficiently large segment of informed and intelligent voters can somehow come together to ensure that sufficiently vigilant Madisonian surrogates will somehow
be included in the national security decisionmaking process to ensure that the Trumanite network is infused with the right values. Those who believe that do not
understand why that network was formed, how it operates, or why it survives. They want it, in short, to become more Madisonian. The Trumanite network, of
course, would not mind appearing more Madisonian, but its enduring ambition is to become, in reality, less Madisonian. It is not clear what precisely might occur
should Bagehot’s cone of government “fall to earth.” United States history provides no precedent. One possibility is a prolongation of what are now long-standing
trends, with the arc of power continuing to shift gradually from the Madisonian institutions to the Trumanite network. Under this scenario, those institutions
continue to subcontract national security decisionmaking to the Trumanites; a majority of the public remains satisfied with tradeoffs between liberty and security;
and members of a dissatisfied minority are at a loss to know what to do and are, in any event, chilled by widely-feared Trumanite surveillance capabilities. The
Madisonian institutions, in this future, fade gradually into museum pieces, like the British House of Lords and monarchy; Madisonians kiss babies, cut ribbons,
and read Trumanite talking points, while the Trumanite network, careful to retain historic forms and familiar symbols, takes on the substance of a silent
Another possibility, however, is that the fall to earth could entail consequences that
are profoundly disruptive, both for the government and the people. This scenario would be more likely in the aftermath of a
directorate.
catastrophic terrorist attack that takes place in an environment lacking the safety-valve checks that the Madisonian institutions once provided. In this future, an
“rally round the flag” fervor and associated crack-down are followed, later, by an
increasing spiral of recriminatory reactions and counter-reactions. The government is seen increasingly by elements of
initial
the public as hiding what they ought to know, criminalizing what they ought to be able to do, and spying upon what ought to be private. The people are seen
increasingly by the government as unable to comprehend the gravity of security threats, unappreciative of its security-protection efforts, and unworthy of its own
trust. Recent public opinion surveys are portentous. A September 2013 Gallup Poll revealed that Americans’ trust and confidence in the federal government’s
ability to handle international problems had reached an all-time low;533 a June 2013 Time magazine poll disclosed that 70% of those age eighteen to thirty-four
believed that Edward Snowden “did a good thing” in leaking the news of the NSA’s surveillance program.534 This yawning attitudinal gap between the people and
the government could reflect itself in multiple ways. Most obviously, the Trumanite network must draw upon the U.S. population to fill the five million positions
needed to staff its projects that require security clearances.535 That would be increasingly difficult, however, if the pool of available recruits comprises a growing
and indeterminate number of Edward Snowdens—individuals with nothing in their records that indicates disqualifying unreliability but who, once hired, are
willing nonetheless to act against perceived authoritarian tendencies by leaving open the vault of secrecy. A smaller, less reliable pool of potential recruits would
Lacking perceived legitimacy, the government could expect a
obstruction, from the general public. Many national security programs presuppose public support for their
efficient operation. This ranges from compliance with national security letters and library records disclosure
under the PATRIOT Act to the design, manufacture, and sale of drones, and cooperation with
counterintelligence activities and criminal investigations involving national security prosecutions. Moreover,
hardly be the worst of it, however.
lesser level of cooperation, if not outright
distrust of government tends to become generalized; people who doubt governmental officials’ assertions on national security threats are inclined to extend their
Governmental assurances concerning everything from vaccine and
food safety to the fairness of stock-market regulation and IRS investigations (not without evidence536) become widely
suspect. Inevitably, therefore, daily life would become more difficult. Government, after all, exists for a reason. It carries out many helpful and indeed
essential functions in a highly specialized society. When those functions cannot be fulfilled, work-arounds emerge, and social dislocation
results. Most seriously, the protection of legitimate national security interests would
itself suffer if the public were unable to distinguish between measures vital to its protection and those assumed to be undertaken merely through
skepticism.
bureaucratic inertia or lack of imagination. The government itself, meanwhile, could not be counted upon to remain passive in the face of growing public obduracy
in response to its efforts to do what it thinks essential to safeguard national security. Here we do have historical precedents, and none is comfortably revisited.
The Alien and Sedition Acts in the 1790s;537 the Palmer Raids of 1919 and 1920;538 the round-up of
Japanese-American citizens in the 1940s;539 governmental spying on and disruption of civil rights, draft protesters, and
anti-war activists in the 1960s and 1970s;540 and the incommunicado incarceration without charges, counsel, or trial of “unlawful combatants” only a few short
all are examples of what can happen when government sees limited
options in confronting nerve-center security threats. No one can be certain, but the ultimate danger posed if the system
years ago541—
were to fall to earth in the aftermath of a devastating terrorist attack could be intensely divisive and potentially destabilizing—not unlike what was envisioned by
conservative Republicans in Congress who opposed Truman’s national security programs when the managerial network was established.542 It is therefore
appropriate to move beyond explanation and to turn to possibilities for reform—to consider steps that might be taken to prevent the entire structure from falling to
earth.
Their model of rational policy analysis is rigged to favor threat
inflation and dodge critical scrutiny
Glennon ‘14 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University (Michael, Harvard
National Security Journal, Vol. 5, “National Security and Double Government”, http://harvardnsj.org/wpcontent/uploads/2014/01/Glennon-Final.pdf)
Sixty years later, sitting atop its national security institutions, an intra-governmental network that has descended from what Truman created now manages the real
work of preventing the country from, in Acheson’s phrase, “go[ing] wrong.”128 The Washington Post’s landmark 2011 study of Truman’s modern handiwork, “Top
forty-six federal departments and agencies engaged in classified national security work.129 Their
missions range from intelligence gathering and analysis to war-fighting, cyber-operations, and weapons development.
Almost 2,000 private companies support this work, which occurs at over 10,000 locations across America.130
The size of their budgets and workforces are mostly classified, but it is clear that those numbers are enormous—a total
annual outlay of around $1 trillion and millions of employees.131 “The nightmare of the modern state,” Henry Kissinger has
written, “is the hugeness of the bureaucracy, and the problem is how to get coherence and design in it.”132 Coherence and design,
however, must come largely from the bureaucracy itself. Presidents can appoint only between 3,000 and
Secret America,” identified
4,000 individuals (including domestic policy officials).133 Of the 668,000 civilian employees in the Department of Defense and related agencies in 2004, only 247
were political appointees.134
Several hundred policymakers, therefore, must be drawn from the national security bureaucracy to
oversee and direct it. They include, but are not limited to, the President’s personal assistants, approximately 175 professional staff members
of the National Security Council135—“the single most powerful staff in Washington.”136 Among this larger group of national security policymakers that comprise
the National Security Council are careerists as well as “in-and-outers”—political appointees, academics, analysts from think tanks, military officers, and other
officials seconded from executive agencies. These several hundred officials comprise America’s Trumanite network. They sit at the pinnacle of what Professor Jack
Goldsmith has called “Washington’s tight-knit national security culture.”137 After spending their professional lives writing what they did not sign, finally they sign
what they did not write. They are not yet driven to work in the morning by a black car but are one step away. They are more likely to have been to Kabul than Tulsa.
They visit the hinterlands of fly-over America on holidays, if then. They seldom appear on television and seek neither celebrity nor wealth. High school class trips
do not visit their offices. Awake at night they think about the implications of the next Stuxnet,138 not ten-year treasury yields. Success lies in being in the big
meeting, reading the key memo— being part of the big decision. The Trumanites draw little overt attention but wield immense, unnoticed power. Unlike “the best
and the brightest” of earlier times, the Trumanites are not part of big decisions because of wealth, family connections, or an elite education. Most have no assured
financial or social safety net to save them should they slip. They are “in” because they are smart, hard-working, and reliable, which among other things means
unlikely to embarrass their superiors. What they may lack in subtlety of mind or force of intellect they make up in judgment.139 Love of country draws the
Trumanites to their work but so also do the adrenaline rush of urgent top-secret news flashes, hurried hallway briefings, emergency teleconferences, intense
confrontation, knowing the confidential sub-plot, and, more broadly, their authority. The decisions they secretly shape are the government’s most crucial. They are
Trollope’s Tom Towers: “It is true he wore no ermine, bore no outward marks of a world’s respect; but with what a load of inward importance was he charged! It is
true his name appeared in no large capitals . . . but what member of Parliament had half his power?”140 The Trumanites are, above all, efficient, or at least efficient
They are concise summarizers; they know their
superiors have as little time as they do and need predigested ideas. They face no need for hearings or markups or floor
debates and afford no occasion for briefs, oral arguments, or appeals. True, the interagency process does take time; papers do have to be
relative to the Madisonians. They can move quickly.
cleared and disagreements resolved. But, again—relative to the Madisonian institutions —the Trumanite network is the paragon of efficiency. “The decisive reason
for the advance of bureaucratic organization,” Max Weber noted, “has always been its purely technical superiority over any other form of organization.”141 The
Trumanites share the public’s faith in American exceptionalism, but they are not ideologues. As Bagehot said of Britain’s analogous institution, “[it] is permanently
Trumanites are, above all, rationalists. They
appear at all costs sound, responsible, serious, and disinterested, never extreme or
sentimental, never too far ahead of policy or too far behind it, creative but not too creative, never boringly predictable,
and, above all, never naïve. They are, in Bagehot’s words, “in contact with reality.”143 They go only “where [they] think[] . . . the
nation will follow.”144 “[T]he way to lead them—the best and acknowledged way—is to affect a studied and illogical moderation.”145 Their
objective is to be uncategorizable—neither predictably hard-line nor predictably soft-line, weighing options on their
merits but remaining always—for it is, after all, national security that is at stake—tough. “[T]his cast of
mind,” C. Wright Mills concluded, “defines international reality as basically military.”146 John
efficient, because it is not composed of warm partisans.”142
Kenneth Galbraith recalled the friendly counsel of McGeorge Bundy, National Security Advisor to Presidents John F. Kennedy and Lyndon Johnson: “Ken,” Bundy
told him, “you always advise against the use of force—do you realize that?” The result of being typecast, Galbraith said, was that on security issues he found himself
Gelb, former president of the Council on Foreign Relations and an
Assistant Secretary of State in the Carter Administration, later explained his initial support of the Iraq War as
“symptomatic of unfortunate tendencies within the foreign policy community, namely the disposition and incentives to
support wars to retain political and professional credibility.”148 One must always retain credibility, which
counsels against fighting losing battles at high credibility costs, particularly for a policy option that would play in Peoria as a weak one. Whether the
policy is in reality the most effective is beside the point . It is the appearance that matters, and in
always like an Indian, “firing occasional arrows into the campsite from the outside.”147 Les
appearance, the policy must seem hardhitting. That reality permeates national security policymaking. “[T]he White House [was] ever afraid,” Vali Nasr has written,
“that the young Democratic President would be seen as ‘soft.’”149 To have gone against the military on Afghanistan would have made the President look weak. “Mr.
President,” advised an NSC staff member, “I don’t see how you can defy your military chain” on Afghanistan force levels.150 “No Democratic president can go
The Trumanites’ propensity to
define security in military and intelligence terms rather than political and
diplomatic ones reinforces a powerful structural dynamic. That dynamic can be succinctly stated:
Overprotection of national security creates costs that the Trumanite network can
externalize; under-protection creates costs that the network must internalize. The resulting incentive structure
encourages the exaggeration of existing threats and the creation of imaginary ones.
against military advice, especially if he asked for it,” said CIA Director Leon Panetta.151 C. Threat Exaggeration
The security programs that emerge are, in economic terms, “sticky down”—easier to grow than to shrink. The Trumanites sacrifice little when disproportionate
The Trumanites do, however,
reap the benefits of that disproportionality—a larger payroll, more
personnel, broader authority, and an even lower risk that they will be
blamed in the event of a successful attack.153 Yet Madisonian institutions incur the
costs of excessive resources that flow to the Trumanites. The President must submit a budget that includes the needed taxes.
money or manpower is devoted to security. The operatives that they direct do not incur trade-off costs.152
Members of Congress must vote for those taxes. A federal agency must collect the taxes. When it comes to picking up the tab, Trumanites are nowhere to be seen.
If national security protection is inadequate, on the other hand, the Trumanites are
held accountable. They are the experts on whom the Madisonian institutions rely
to keep the nation safe. They are the recipients of Madisonian largesse, doled out to ensure that no blame will be cast by voters seeking
retribution for a job poorly done. In the event of a catastrophic attack, the buck stops with the
Trumanites. No Trumanite craves to be the target of a 9/11 commission
following a catastrophic failure. Thus they have, as Jeffrey Rosen put it, an “incentive to
exaggerate risks and pander to public fears”154—“an incentive to pass along
vague and unconfirmed threats of future violence, in order to protect
themselves from criticism”155 should another attack occur. Indeed, a purely
“rational” actor in the Trumanite network might hardly be expected to do anything other
than inflate threats. In this way, the domestic political dynamic reinforces the
security dilemma familiar to international relations students, the quandary that a nation confronts when, in taking
steps to enhance its security, it unintentionally threatens the security of
another nation and thus finds its own security threatened when the other nation takes
compensatory action.156 An inexorable and destabilizing arms race is thereby fueled by
seemingly rational domestic actors responding to seemingly reasonable
threats—threats that they unwittingly helped create. The budget figures, compiled by David Sanger,157
reflect the incentive structure within which the Trumanite network has emerged and thrives. Over the last decade the defense budget has
grown 67% in real terms.158 It now is 50% higher than it was for an average year
during the Cold War159—greater than the spending of the next twenty largest
military powers combined.160 During the decade following the 9/11 attacks,
the United States spent at least $3.3 trillion responding to the attacks.161 This represents $6.6
million for every dollar al Qaeda spent to stage the attacks.162 It is unclear the extent to which the specific threats at which the Obama national security policy is
directed have been inflated; that information is classified, and the handful of Trumanites in a position to know the truth of the matter can hardly be expected to
No reliable outside threat assessment is available
disclose it.163
. Although it is the Madisonians, not the
Trumanites, who are expert in assessing the preferences of the public, including public risk tolerance—the Madisonians are the ones who hear out constituents,
the only way to know whether more insurance is needed is to ask
the same Trumanite network that will gladly provide it. If the precise nature of the
threatened harm is uncertain, what is not uncertain is the fear of threats,
which is essential to the maintenance of the Trumanite network’s power— for
the fundamental driver of Trumanite power has been emergency, the appearance of
threats that must be addressed immediately, without bringing in the Madisonian institutions. “[A]n entire
era of crisis in which urgent decisions have been required again and again,”164 in the words of Senator J. William Fulbright, has given
rise to the Trumanites’ power. Speedy decisions are required that the
Madisonian institutions are ill-equipped to make; the Trumanites have the
means at their disposal to act quickly. The perception of threat, crisis, and emergency has been the seminal phenomenon
litigants, and lobbyists—
that has created and nurtures America’s double government.
The affirmatives strategy of preempting threats through legal action
securitizes the issue and causes unending violence. Their concept of
constant stability necessitates a war against its own citizens
Krassmann ’12 – Professor of Sociology at the Institute for Criminological Research,
University of Hamburg (November, Susanne, Theoretical Criminology, “Law’s
knowledge: On the¶ susceptibility and resistance¶ of legal practices to security¶ matters,”
16(4), 379-380, DWB)
Our political world today cannot be imagined without law. Law authorizes
and regulates¶ governmental action, in particular the resort to force. With the rule
of law and a¶ considerable range of citizens’ and human rights, the civilized world prides itself on¶ having
established a regime of stability and a framework for claiming one’s rights.¶ Remarkably, across different models
of either rather centralized or pluralist environments¶ of democratic authority, political crises, particularly in the face of terrorist threats
since the 1970s, have been managed preferably within
the normal statutory process, rather¶
than by proclaiming a state of emergency (see Ferejohn and Pasquino, 2004: 215; Poole,¶ 2008: 5–9).
Nevertheless, social scientists and legal scholars articulate the concern that ¶ security is seizing more and more
political space. Criminologists even see their subject¶ field increasingly mirrored by Steven Spielberg’s movie version of Phillip
K. Dick’s¶ (2002) Minority Report. The movie depicts a dystopia of prospective offenders being ¶ incapacitated pre-emptively far in advance
of the offenders’ own anticipation of their¶ future crimes. A
‘pre-crime logic’, as designated by the British criminologist Lucia
Zedner¶ (2007: 262), aims at ‘forestalling risks’ and seems to compete with, if not take
precedence¶ over, the traditional modes of policing and prosecution
‘responding to wrongs done’.¶ What is at stake here then is a qualitative shift
as regards the threshold of intervention in¶ the name of security. In terms of classical
legal principles, the precondition for activating¶ the security apparatus no longer
seems to be the breach of a norm by an actual offence nor¶ an imminent
threat or a reasonable suspicion. Rather, security government is increasingly¶
concerned with anticipating abstract risks and diffuse threats that are
subsequently to be¶ attributed to particular social groups or enemies. Preemption is one mode of dealing with¶ threats that comes into play here.
Originating in strategic military thinking (Freedman,¶ 2004), this rationality now seems to also assert itself in criminology’s subject field.
Preemption¶ differs from well-established forms of prevention in penal law and criminology ¶ in the dynamic it unfolds of actions to be
taken. Being focused on abstract and presumably¶ imminent threats, this
rationale is interventionist and
inventive.1¶ In the face of these developments, a new debate on how to contain governmental¶ interference in the name of security
has emerged. What is remarkable about this debate¶ is that, on the one hand, it aims at establishing more civil and human rights and
attendant¶ procedural safeguards that allow for systematically calling into question the derogation ¶ of laws and the implementation of new
laws in the name of security. On the other hand,¶ it recognizes the existence of a new dimension of threats, particularly in the aftermath of ¶
the terror attacks of 11 September 2001. As John Ferejohn and Pasquale Pasquino (2004: ¶ 228), for instance, contend:
Describing a security threat as an “emergency” and “crises” which
requires immediate action feeds the control by bureaucratic powers
in control of the government.
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf)
specific threats at which the Obama national security
policy is directed have been inflated; that information is classified, and the handful of Trumanites
in a position to know the truth of the matter can hardly be expected to disclose it. 163 No reliable outside
threat assessment is available . Although it is the Madisonians, not the Trumanites, who are expert in
It is unclear the extent to which the
assessing the preferences of the public, including public risk tolerance—the Madisonians are the ones who hear out
constituents, litigants, and lobbyists—the only way to know whether more insurance is needed is to ask the same
Trumanite network that will gladly provide it .
If the precise nature of the threatened harm is
uncertain, what is not uncertain is the fear of threats, which is essential to
the maintenance of the Trumanite network’s power— for the fundamental
driver of Trumanite power has been emergency, the appearance of threats
that must be addressed immediately , without bringing in the Madisonian institutions. “[A]n
entire era of crisis in which urgent decisions have been required again and
again ,”164 in the words of Senator J. William Fulbright, has given rise to the Trumanites’
power. Speedy decisions are required that the Madisonian institutions are ill-equipped to
make;
the Trumanites have the means at their disposal to act quickly. The
perception of threat, crisis, and emergency has been the seminal
phenomenon that has created and nurtures America’s double government.
The government uses the law to preempt acts of insecurity and in
doing so renders its people subservient.
Krassmann ’12 – Professor of Sociology at the Institute for Criminological Research,
University of Hamburg (November, Susanne, Theoretical Criminology, “Law’s
knowledge: On the¶ susceptibility and resistance¶ of legal practices to security¶ matters,”
16(4), 380-381, DWB)
Adequate legal frameworks and institutional designs are required that would enable us to¶ ‘reconcile’ security with
(human) rights, as Goold and Lazarus (2007b: 15) propose, and¶ enduring emergency situations with the rule of law.¶
Traditional problems in the relationship between law and security government within ¶ this debate form a point of
departure of critical considerations:2¶ emergency
government today, rather than facing
the problem of gross abuses of power, has to deal with the persistent danger
of the exceptional becoming normal (see Poole, 2008: 8). Law gradually¶ adjusts to what
is regarded as ‘necessary’.3¶ Hence, law not only constrains, but at the same
time also authorizes governmental interference. Furthermore, mainstream¶ approaches that
try to balance security and liberty are rarely able, or willing, to expose fully the trade-offs of their normative
presuppositions: ‘[T]he metaphor of balance is¶ used as often to justify and defend changes as to challenge them’ (Zedner,
2005: 510).¶ Finally, political
responses to threats never overcome the uncertainty
that necessarily accompanies any decision addressing future events. To
ignore this uncertainty, in other¶ words, is to ignore the political moment any such
decision entails, thus exempting it from the possibility of dissent.¶ Institutional
arrangements that enforce legislative control and enable citizens to claim¶ their rights are certainly the appropriate
responses to the concern in question, namely that¶ security
gradually seizes political space and
transforms the rule of law in an inconspicuous manner. They establish political spaces of
dispute and provide sticking points against all¶ too rapidly launched security legislation, and thus may foster a ‘culture of
political decisions and the exercise of state
power are¶ to be ‘justified by law’, in a fundamental sense of a commitment
to ‘the principles of¶ legality and respect for human rights’ (2007: 137). Nonetheless,
justification’,¶ as David Dyzenhaus (2007) has it:
most of these accounts,¶ in a way, simply add more of the same legal principles and institutional arrangements¶ that are
well known to us. To
frame security as a public good and ensure that it is a¶ subject
of democratic debate, as Ian Loader and Neil Walker (2007) for example demand,¶ is a promising
alternative to denying its social relevance. The call for security to be¶ ‘civilized’, though, once
again echoes the truly modern project of dealing with its¶ inherent discontents. The limits of such a commitment to
legality and a political ‘culture¶ of justification’ (so termed for brevity) will be illustrated in the following section. Those¶
normative endeavours will be challenged subsequently by a Foucauldian account of law¶ as practice. Contrary
to
the idea that law can be addressed as an isolated, ideal body and¶ thus treated like an
instrument according to normative aspirations, the present account¶ renders law’s reliance on
forms of knowledge more discernable. Law is susceptible, in¶ particular to
security matters. As a practice, it constantly transforms itself and, notably,¶
articulates its normative claims depending upon the forms of knowledge
brought into¶ play. Contrary to the prevailing debate on emergency government, this perspective¶ enables us, on
the one hand, to capture how certain forms of knowledge become inscribed¶ into the law in a way that goes largely
unnoticed. This point will be discussed on the¶ example of automated
surveillance technologies,
which facilitate a particular rationality¶ of pre-emptive action. The conception of law
as a practice, on the other hand, may also¶ be understood as a tool of critique and dissent. The recent torture debate is an
extreme¶ example of this, whereby torture can be regarded as a touchstone of law’s resistance to¶ its own abrogation.
Anticipatory security tactics try to prevent an unknown future from
occurring. This constant fear of the unknown results in a further
continuation of the surveillance state.
Krassmann ’12 – Professor of Sociology at the Institute for Criminological Research,
University of Hamburg (November, Susanne, Theoretical Criminology, “Law’s
knowledge: On the¶ susceptibility and resistance¶ of legal practices to security¶ matters,”
16(4), 385-387, DWB)
Relying upon certain techniques and procedures of anticipating dangers and
threats,¶ security government exposes a particular relationship with
knowledge: any form of¶ averting dangers entails uncertainty and therefore a
productive or speculative moment. It¶ requires dealing with an unknown
and, at the same time, presumably threatening future.¶ Preventing harm thereby
aims at having certain facts not eventuate at all. Action has to¶ be taken before danger
materializes. A danger is to be anticipated, even if it is difficult to¶ conjecture.
The unknown has to be approached and assessed in order to render it¶
accessible, both in the sense of being intelligible and manageable (Aradau and Van¶ Munster, 2011). The
identification of threats, thus, may be understood as a form of¶ dividing the
known from what is unknown and what is to be known (see Kessler and¶ Werner, 2008:
290)—even though no clear demarcation here is possible. Anticipation¶ rests upon experience, that
is, on what is known from the past. And our imagining the¶ unknown future reflects back to the present. It governs our
presumptions on adequate or inadequate measures, and our activities. Ethics
and the governance of
security, as Peter¶ Burgess (2011: 4–5) has pointed out, follow a similar rationale. They are both about a¶
gap, between what is and what should be, and between what is (to be)
known and what¶ is (radically) unknown. In the face of threats, an ‘ethics of uncertainty’ and an¶
‘epistemology of the unknown’ intermingle indissolubly—and to this extent denude the¶ political moment within law.¶ It is,
paradoxically, the
state of uncertainty that enables security matters to be¶
implemented in opposition to legal norms. Indications of dangers or threats
have to be¶ taken seriously, while these threats at the same time are difficult
to dispute, because they¶ escape determination. This is all the more the case, the more
abstract the danger or threat¶ and the greater the expected harm is. The identification of catastrophic
risks therefore is¶ subjected to a rationality of pre-emption. It requires
threats to be averted before they¶ have a chance to emerge, and action to be
taken before the addressed threat is even¶ intelligible. This, in turn, means creating
knowledge and producing indicators that¶ provide clues on where and how to act. This creation of knowledge, however,
never¶ dispenses with uncertainty (Ewald, 2002). Law
that is designated to regulate and
restrict¶ governmental interference therefore sees itself confronted with the
‘veridiction’ of a¶ threat that can neither be ignored nor simply disputed. This
is particularly the case with¶ automated knowledge techniques that are designated to gather and generate risk¶ indicators,
and related practices of surveillance and policing (Harcourt, 2007; Hildebrandt¶ and Gutwirth, 2008).¶ By assembling
certain knowledge techniques, practices and procedures, anticipatory¶ technologies unfold their own rationalities of action
and create their own truth effects.¶ On the basis of anonymous digitally sorted data, these technologies, first, abstract
from¶ concrete individuals. They create rather ‘dividuals’ (Deleuze, 1995). As criteria of risk¶ that are inscribed into
automated screening and targeting technologies, particular patterns¶ of behaviour, appearance or association to a certain
group may thus already provide a¶ basis for suspicion, independently of any actual acts. Technically generated suspicion
in¶ this sense reverses the notion of ‘innocent until proven guilty’ (see De Goede, 2008: 109;¶ McCulloch and Carlton,
2006: 404). Second, the data and information these technologies¶ provide are difficult to dispute. Whereas indicators of
threat vary along with distributions¶ of risk, the technical and virtual processes themselves are rather opaque (see Lyon,
2007;¶ Merry, 2011: 84).10 Moreover, as technically generated, empirical knowledge, ‘categorical¶ identities’ are less
negotiable compared to social identities. Indicators
like gender,¶ income, educational
background and bodily features, which are codified as biometric¶ data like eye colour,
finger prints and so on, are apparently able to issue their own verdict,¶ as security authorities
tend to take them as empirical facts (see Aas, 2004: 386). Third,¶ data mining and screening
techniques for automatically targeting people—like video¶ cameras that are able to recognize ‘suspicious’ movements—not
only aim at clarifying,¶ but generate and distribute suspicion. In contrast to the classic police concept of averting¶ a
manifest danger, the
task here is not only to render visible what has not yet been¶
discovered, but, most notably, to anticipate what is as yet unknown. Hence, by¶
automatically comparing heterogeneous data and identifying particular combinations as ¶ being suspicious, these
anticipatory techniques do not merely screen data according to¶ predefined
norms. They constitute norms (Amoore, 2007). While they are not necessarily pre-emptive in
themselves, they create knowledge that allows for pre-emptive action,¶ and, in this way, may also affect the rule of law.
Legal limits over national security also fail. Example - independent
panels established by Obama were useless because of bureaucratic
cooption
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
would inject legal limits directly into the Trumanites’
operational core by, for example, setting up de facto judges within the
network, or at least lawyers able to issue binding legal opinions, before
certain initiatives could be undertaken. 548 Another proposed reform would attempt to foster
intra-network competition among the Trumanites by creating Madisonian-like checks and balances that
operate directly within the Trumanite network.549 The difficulty with these and similar ideas
is that the checks they propose would merely replicate and relocate failed Madisonian
institutions without controlling the forces that led to the hollowing-out of
the real Madisonian institutions. There is scant reason to believe that
pseudo-Madisonian checks would fare any better. Why would the Trumanite network,
A second approach
driven as it is to maintain and strengthen its autonomy, subject itself behind the scenes to internal Madisonian constraints
Why, in Bagehot’s
terms, would the newly established intra-Trumanite institutions not
become, in effect, a new, third institutional layer that further disguises
where the real power lies?
any more readily than it publicly has subjected itself to external Madisonian constraints?
Indeed, intra-Trumanite checks have already been tried. When questions arose as to whether Justice Department lawyers
inappropriately authorized and oversaw warrantless electronic surveillance in 2006, its Office of Professional
Responsibility commenced an investigation—until its investigators were denied the necessary security clearances, blocking
the inquiry.550 The FBI traditionally undertakes an internal investigation when an FBI agent is engaged in a serious
shooting; “from 1993 to early 2011, FBI agents fatally shot about seventy ‘subjects’ and wounded about eighty others—and
Following the NSA surveillance
disclosures, President Obama announced the creation of an independent
every one of those [shootings] was justified,” its inspectors found.551
panel to ensure that civil liberties were being respected and to restore
public confidence —a panel, it turned out, that operated as an arm of the Office of the Director of National
Intelligence, which oversees the NSA.552 Inspectors general were set up within federal departments and agencies in 1978
but the positions have remained
vacant for years in some of the government’s largest cabinet agencies, including the departments of Defense,
State, Interior, and Homeland Security.554 The best that can be said of these inspectors general is that, despite the
best of intentions, they had no authority to overrule, let alone penalize,
anyone. The worst is that they were trusted Trumanites who snored through everything from illegal surveillance to
arms sales to the Nicaraguan contras to Abu Ghraib to the waterboarding of suspected terrorists. To look to
Trumanite inspectors general as a reliable check on unaccountable power
would represent the ultimate triumph of hope over experience.
as safeguards against waste, fraud, abuse, and illegality,553
Link – Terrorism
Their advantage is a sham rooted in vested interests and violent
national identity formation—the impact is expansive structural
violence and racist political subjectivity
Desiree Bryan 12, Research Assistant at Middle East Institute. MScECON Candidate:
Security Studies at Aberystwyth University, The Popularity of the ‘New Terrorism’
Discourse, http://www.e-ir.info/2012/06/22/the-popularity-of-the-new-terrorismdiscourse/
The opening sentence of a textbook on terrorism states, “Terrorism
has been a dark feature of human
behavior since the dawn of recorded history” (Martin, 2010, 3). If this is the case, what makes the ‘new
terrorism’ different from the old? According to the mainstream orthodoxy on terrorism, the old terrorism
was generally characterized by: left wing ideology; the use of small scale, conventional
weapons; clearly identifiable organizations or movements with equally clear political and social messages;
specific selection of targets and “explicit grievances championing specific classes or ethnonational groups” (Martin, 2010, 28). ¶ Also
according to the orthodoxy, the shift to the new terrorism, on the other hand, is thought to have emerged in the early 1990s (Jackson, 2011)
new
terrorism is characterized by: “loose, cell-based networks with minimal lines of command and control,” “desired
acquisition of high-intensity weapons and weapons of mass destruction” (Martin, 2010, 27), “motivated by religious
and took root in mass consciousness with the September 11, 2001 terrorist attacks on the U.S. (Martin, 2010, 3). The
fanaticism rather than political ideology and it is aimed at causing mass causality and maximum destruction” (Jackson, 2007, 179-180).¶
However, these dichotomous definitions of the old and new types of terrorism are not without problems. The first major
problem is that terrorism has been characterized by the same fundamental
qualities throughout history. Some of the superficial characteristics, the means of implementation (e.g. the
invention of the Internet or dynamite) or the discourse (communism vs. Islam) may have evolved, but the central components remain the
same. The second major problem is
that the characterization of new terrorism is, at best,
rooted in a particular political ideology, biased and inaccurate. At worst, it is racist,
promotes war mongering and has contributed to millions of deaths. As David
Rapoport states:¶ Many contemporary studies begin … by stating that although terrorism has always been a feature of social existence, it
became ‘significant’ … when it ‘increased in frequency’ and took on ‘novel dimensions’ as an international or transnational activity, creating
in the process a new ‘mode of conflict’ (1984, 658). ¶ Isabelle Duyvesteyn points out that this would indicate evidence for the emergence of a
new type of terrorism, if it were not for the fact that the article was written in 1984 and described a situation from the 1960s (Duyvesteyn,
2004, 439). It seems that there have been many new phases of terrorism over the years. So many so that the definition of ‘new’ has been
stretched significantly and applied relatively across decades. Nevertheless, the idea that this terrorism, that which the War on Terror (WoT)
is directed against, is the most significant and unique form of terrorism that has taken hold in the popular and political discourse.
Therefore, it is useful to address each of the so-called new characteristics in turn.¶ The first characteristic is the idea that new terrorism is
based on loosely organized cell-based networks as opposed to the traditional terrorist groups, which were highly localized and hierarchical
in nature. An oft-cited example of a traditional terrorist group is the Irish Republican Army (IRA), who operated under a military structure
and in a relatively (in contrast to the perceived transnational operations of al-Qaeda) localized capacity. However, some of the first modern
terrorists were not highly organized groups but small fragmented groups of anarchists. These groups were heeding the call of revolutionary
anarchist Mikhail Bakunin and other contemporary anarchists to achieve anarchism, collectivism and atheism via violent means (Morgan,
2001, 33). Despite the initial, self-described “amorphous” nature of these groups, they were a key force in the Russian Revolution
(Maximoff, G.). Furthermore, leading anarchist philosophers of the Russian Revolution argued that terrorists “should organize themselves
into small groups, or cells” (Martin, 2010, 217). These small groups cropped up all around Russia and Europe in subsequent years and
formed an early form of a “loosely organized cell-based network” not unlike modern day al Qaeda. Duyvesteyn further notes that both the
Palestine Liberation Organization (PLO), which was founded in 1964, and Hezbollah, founded 1982, operate on a network structure with
very little central control over groups (2004, 444). ¶ The second problematic idea of new terrorism is that contemporary
terrorist groups aim to acquire and use weapons of mass destruction (WMDs). This belief is simply
not supported by empirical evidence. One of the key problems with this theory is that WMDs are
significantly more difficult to obtain and utilize than most people
understand. Even if a terrorist group were to obtain a biological WMD, “Biologist Matthew
Meselson calculates that it would take a ton of nerve gas or five tons of mustard gas to produce
heavy causalities among unprotected people in an open area of one square kilometer” (Mueller, 2005, 488). And that’s only an
example of the problem with the implementation of WMDs, assuming they are acquired, transported
and desirable by a terrorist group in the first place. Additional problems, such as the fact that WMDs “are
extremely difficult to deploy and control” (Mueller, 2005, 488) and that making a bomb “is
an extraordinarily difficult task” (Mueller, 2005, 489), further diminish the risk. It is interesting to note that, while
the potential dangers of WMDs are much lauded, the attacks of September 11th were
low tech and had been technologically possible for more than 100 years. Mueller also states,
“although nuclear weapons have been around for well over half a century, no
state has ever given another state (much less a terrorist group) a nuclear
weapon that the recipient could use independently” (2005, 490).¶ All of this talk about the difficultly of acquiring and deploying
WMDs (by non-state agents), is not to diminish the question of what terrorists have to gain by utilizing these weapons. It is
important to question whether it would even further the aims of terrorists
to use WMDs. The evidence suggests otherwise. In the “Politics of Fear” Jackson states, “Mass
casualties are most often counterproductive to terrorist aims – they alienate their
supporters and can provoke harsh reprisals from the authorities […]” in addition, “[…] they would
undermine community support, distort the terrorist’s political message, and
invite over-whelming retaliation” (2007, 196-197). Despite popular rhetoric to the
contrary, terrorists are “rational political actors and are acutely aware of these
dangers” (Jackson, 2007, 197). Government appointed studies on this issue have supported these
views.¶ This leads us to the third problem with new terrorism, which is the idea that we are facing a new era of terrorism motivated by
religious fanaticism rather than political ideology. As stated previously, earlier, so-called traditional forms of terrorism are associated with
left wing, political ideology, whereas contemporary terrorists are described as having “anti-modern goals of returning society to an idealized
version of the past and are therefore necessarily anti-democratic, anti-progressive and, by implication, irrational” (Gunning and Jackson,
3). Rapoport argues the idea that religious terrorists are irrational, saying, “what seems to be distinctive about modern [religious] terrorists,
their belief that terror can be organized rationally, represents or distorts a major theme peculiar to our own culture […]” (1984, 660).
Conveniently for the interests of the political elites, as we shall see later, the idea of irrational fanaticism makes the notion of negotiation
and listening to the demands of the other impossible. In light of this, it is interesting to note that the U.S. has, for decades, given billions of
dollars in aid to the State of Israel, which could be argued to be a fundamentalist, religious organization that engages in the terrorization of
a group of people. Further, it is difficult to speak of The Troubles in Northern Ireland without speaking of the religious conflict, yet it was
never assumed that the IRA was “absolutist, inflexible, unrealistic, lacking in political pragmatism, and not amenable to negotiation”
(Gunning and Jackson, 4). Rapaport further reinforces the idea that religious terrorism goes back centuries by saying, “Before the
nineteenth century, religion provided the only acceptable justifications for terror…” (1984, 659). ¶ As we have seen here, problems with the
discourse of new terrorism include the fact that these
elements of terrorism are neither new nor
are the popular beliefs of the discourse supported by empirical evidence . The
question remains, then, why is the idea of new terrorism so popular? This question will be addressed next. ¶ Political Investment in New
Terrorism¶ There are two main categories that explain the popularity of new terrorism. The first category is government and political
investment in the propagation of the idea that a distinct, historically
unknown type of terrorism exists. The mainstream discourse [1] reinforces, through
statements by political elites, media, entertainment and every other way imaginable, the culture of violence,
militarism and feelings of fear. Through mass media, cultural norms and the integration of neoliberal ideology
into society, people are becoming increasingly desensitized to human rights
issues, war, social justice and social welfare, not to mention apathetic to the
political process in general.¶ The discourse of the WoT is merely the
contemporary incarnation of this culture of fear and violence. In the past, various
threats have included American Indians, women, African Americans, communists, HIV/AIDS and drugs, to name but a few (Campbell,
1992). It can be argued that there are four main political functions of terrorism
discourse. The first is as a
distraction from other, more immediate and domestic social problems such as
poverty, employment, racial inequality, health and the environment . The
second, more sinister function is to control dissent. In looking at both of these issues Jackson
states:¶ There are a number of clear political advantages to be gained from the creation
of social anxiety and moral panics. In the first place, fear is a disciplining agent and can be effectively
deployed to de-legitimise dissent, mute criticism, and constrain internal opponents. […] Either way,
its primary function is to ease the pressures of accountability for political
elites. As instrument of elite rule, political fear is in effect a political project
aimed at reifying existing structures of power. (Politics of Fear, 2007, 185).¶ Giroux further reinforces
the idea that a culture of fear creates conformity and deflects attention from government
accountability by saying, “the ongoing appeal to jingoistic forms of patriotism divert the public from addressing a number of
pressing domestic and foreign issues; it also contributes to the increasing suppression of dissent” (2003, 5). ¶ Having a
problem that is “ubiquitous, catastrophic, and fairly opaque” (Jackson, Politics of Fear,
2007, 185) is useful to political elites, because it is nearly impossible to address
the efficacy of combating the problem. At least, empirical evaluation can be, and is, easily discouraged in
academic circles through research funding directives. Domestic problems such as the unemployment rate or health care reform, on the
other hand, are directly measurable and heavily monitored by domestic sources. It is possible to account for the success or failure of policies
designed to address these types of problems and the (re)election of politicians often depends heavily on success in these areas. However, the
public is neither involved on a participative level nor, often, socially aware of what is happening in murkier and unreachable areas like
foreign policy.¶ The third political investment in maintaining the terrorism discourse has to do with economics. “At a material level,
there are a great many vested interests in maintaining the widespread condition of fear, not
least for the military-industrial complex which benefits directly from increased
spending on national security” (Jackson, Politics of Fear, 2007, 186). This is true with all forms of crime and
insecurity as all of them factor into the greater security-industrial complex. Not only do these industries employ millions of people and
support their families, they boost the economy. Barry Buzan talks of these the importance of these issues to both the government and the
public in
terms of a ‘threat-deficit’ – meaning that U.S. policy and society is dependent
on having an external threat (Buzan, 2007, 1101).¶ The fourth key political interest in
terrorism discourse is constructing a national identity. This will be discussed more thoroughly
in the following section, however, it is important to acknowledge the role the WoT (and previous threats) has had on constructing and
reinforcing a collective identity. Examples of this can be seen in the discourse and the subsequent reaction to anyone daring to step outside
the parameters of the Bush Administration-established narrative in the days immediately following the September 11th attacks. A number
of journalists, teachers and university professors lost their jobs for daring to speak out in criticism of U.S. policy and actions following the
attacks. In 2001, Lynne Cheney attacked the then deputy chancellor of the New York City Schools, Judith Rizzo, for saying “terrorist attacks
jingoistic
patriotism “becomes a euphemism for shutting down dissent, eliminating
critical dialogue, and condemning critical citizenship in the interest of conformity and a dangerous
departure from what it means to uphold a viable democracy” (2003, 24). The
message is, we are not the other (Muslims), patriotism equals agreement and compliance and
our identity is based on the shared values of liberty and justice.¶ According to Carol
demonstrated the importance of teaching about Muslim cultures” (Giroux, 2003, 22). According to Giroux, this form of
Winkler, “Negative ideographs contribute to our collective identity by branding behavior that is unacceptable … American society defines
itself as much by its opposition to tyranny and slavery as it does by a commitment to liberty” (Winkler, 2006, 12). Terrorism, and by
association in this case, Islam, functions as a negative ideograph of American values. It thereby tells us what our values and our identity are
by telling us who the enemy is and who we are not. According to Jackson, “[…] some have argued that Western
identity is
dependent on the appropriation of a backward, illiberal, violent Islamic
‘other’ against which the West can organize a collective liberal, civilized ‘self’
and consolidate its cultural and political norms” (Jackson, Constructing Enemies, 2007, 420).¶
Through this analysis we can see there are four key ways in which the hegemonic system is invested in propagating a culture of fear and
violence and terrorism discourse. Not
only is it key for political elites to support this system,
it is also crucial that there be an ever renewing threat that is uniquely
different from past threats. These new threats allow for the investment of
significantly more resources, the continuation of the economy, the renewal of a strong sense of cultural identity and the
indoctrination and obedience of new generations of society. This essay will now look at how individual and collective psychology supports
the popularity of the new terrorism discourse.¶ Psychology of the Masses¶ The second category of reasons why new terrorism discourse is
popular can be called the psychology of the masses. There are a number of factors that fall under this category such as: the hyper-reality of
the modern era; the culture of fear; the carryover of historical archetypes and the infiltration of neoliberal values into cultural norms. The
topic of social and individual psychology and how it relates to the propagation and acceptance of hegemonic discourse is broad. It is also an
important aspect of critical terrorism studies and merits further exploration. However, in this section will outline the basis for the
popularity of new terrorism discourse and discuss several ways in which this popularity is manifested and reinforced in contemporary
society.
WMD terrorism is nonsense—facilities are secure, fabrication is
impossible, bomb assembly is expensive and obvious, expertise is
detectable, and delivery is impossible—even if the impact is possible,
cumulative probability is low…
The “only a risk” logic of terrorism scenarios makes risk assessment
impossible and turns case
Oliver KESSLER Sociology @ Bielefeld AND Christopher DAASE Poli Sci @ Munich 8
[“From Insecurity to Uncertainty: Risk and the Paradox of Security Politics” Alternatives
33 p. 223-228]
The objective is to develop means and methods to deal with uncertainty and reduce it to risk.46 Uncertainty is subsequently redefined in terms of contingency: One
To calculate
risks does not mean that they can be measured objectively. Not all
uncertainties are of quantitative nature and thus understandable within the
common definition of rationality.47 In particular, the evaluation of risks may vary according to the political interests or
cultural contextes If this is acknowledged, the traditional concept of deterministic causality loses
its validity. Uncertain political results and uncertain strategies do not follow predetermined laws, but, if anything, probabilistic laws. Thus, what
may not know what the next state of the world exactly is going to be but one can have a good guess and possibly find some insurance.
political scientists can achieve at best is probabilistic knowledge—that is, knowledge about necessary and sufficient reasons and causes that may not be able to
If this is accepted,
the question of how big the threat of international terrorism currently is
can no longer be answered by pointing to the next terrorist act that will surely happen at
some point in the future. For the fact that the current calm is just the calm before the next storm is as true as it is trivial. However, exactly such
trivial insights that the next terrorist "attack" will happen determine
current security policy discourses. There are two reasons for this. First, there are two equally
inadequate standard models to examine the risk of terrorism.49 The one
inquires into the motivational structure of terrorist groups and individual terrorists and tries to
extrapolate future attacks from past terrorist activities. The other attempts
to calculate the risk by multiplying expected losses by their probability of
occurrence . The former is preferred by terrorism experts and regional
specialists, the latter by decision makers and security analysts. The problem
of the first method, however, is that it cannot account for new developments
and spontaneous changes in terrorist practices. There is always a first time when new strategies are used or
predict single events but that do identify the conditions under which the realization of specific events is more or less likely.
new targets are selected. Even using planes as cruise missiles in order to destroy skyscrapers was an innovation not clearly foreseen by specialists, because such
behavior was nearly unimaginable at the time. Extrapolation methods to determine terrorism risks are thus inherently conservative and tend to underestimate the
If the risk of terrorism
is defined in traditional terms by probability and potential loss, then the
focus on dramatic terror attacks leads to the marginalization of
probabilities. The reason is that even the highest degree of improbability
becomes irrelevant as the measure of loss goes to infinity. The
mathematical calculation of the risk of terrorism thus tends to overestimate
and to dramatize the danger. This has consequences beyond the actual risk
assessment for the formulation and execution of "risk policies": If one factor
of the risk calculation approaches infinity (e.g., if a case of nuclear
terrorism is envisaged), then there is no balanced measure for antiterrorist
efforts, and risk management as a rational endeavor breaks down. Under
the historical condition of bipolarity, the "ultimate" threat with nuclear
danger. The problem of the second method is that it is very difficult to "calculate" politically unacceptable losses.
weapons could be balanced by a similar counterthreat, and new equilibria
could be achieved, albeit on higher levels of nuclear overkill. Under the new
condition of uncertainty, no such rational balancing is possible since
knowledge about actors, their motives and capabilities, is largely absent. The
second form of security policy that emerges when the deterrence model collapses mirrors the "social probability" approach. It represents a logic of catastrophe. In
contrast to risk management framed in line with logical probability theory, the logic of catastrophe does not attempt to provide means of absorbing uncertainty.
Rather, it takes uncertainty as constitutive for the logic itself; uncertainty is a crucial precondition for catastrophies. In particular, catastrophes happen at once,
without a warning, but with major implications for the world polity. In this category, we find the impact of meteorites. Mars attacks, the tsunami in South East
Asia, and 9/11. To conceive of terrorism as catastrophe has consequences for the formulation of an adequate security policy. Since catastrophes happen
irrespectively of human activity or inactivity, no political action could possibly prevent them. Of course, there are precautions that can be taken, but the framing of
political decision
makers are exempted from the responsibility to provide security—as long as they at
least try to preempt an attack. Interestingly enough, 9/11 was framed as catastrophe in various commissions dealing with the
terrorist attack as a catastrophe points to spatial and temporal characteristics that are beyond "rationality." Thus,
question of who was responsible and whether it could have been prevented. This makes clear that under the condition of uncertainty, there are no objective criteria
that could serve as an anchor for measuring dangers and assessing the quality of political responses. For example, as much as one might object to certain measures
by the US administration, it is almost impossible to "measure" the success of countermeasures. Of course, there might be a subjective assessment of specific
shortcomings or failures, but there is no "common" currency to evaluate them. As a consequence, the framework of the security dilemma fails to capture the basic
uncertainties. Pushing the door open for the security paradox, the main problem of security analysis then becomes the question how to integrate dangers in risk
a Rand study entitled "New Challenges for Defense
Planning" addressed this issue arguing that "most striking is the fact that we do not even know who or what
will constitute the most serious future threat, "^i In order to cope with this challenge it would be essential,
another Rand researcher wrote, to break free from the "tyranny" of plausible scenario planning. The decisive step would be to
create "discontinuous scenarios . . . in which there is no plausible audit trail or storyline from current events"52 These
nonstandard scenarios were later called "wild cards" and became important in the current US strategic
discourse. They justified the transformation from a threat-based toward a capabilitybased defense planning strategy.53 The problem
with this kind of risk assessment is, however, that even the most absurd
scenarios can gain plausibility. By constructing a chain of potentialities,
improbable events are linked and brought into the realm of the possible, if not even the
probable. "Although the likelihood of the scenario dwindles with each step,
the residual impression is one of plausibility. "54 This so-called Othello effect
has been effective in the dawn of the recent war in Iraq. The connection
between Saddam Hussein and Al Qaeda that the US government tried to
prove was disputed from the very beginning. False evidence was again and
again presented and refuted, but this did not prevent the administration
from presenting as the main rationale for war the improbable yet possible
connection between Iraq and the terrorist network and the improbable yet possible proliferation of an
improbable yet possible nuclear weapon into the hands of Bin Laden. As Donald Rumsfeld famously said:
"Absence of evidence is not evidence of absence." This sentence indicates that under the condition of
assessments and security policies about which simply nothing is known. In the mid 1990s,
genuine uncertainty, different evidence criteria prevail than in situations where security problems can be assessed with relative certainty. Contemporary dynamics
in the fight against terrorism seem to result from a clash of different logics of probability. As Ulrich Beck has shown, terrorism has altered the meaning of space
and time for the analysis of risk. Spatially, terrorist networks escape the logic of the nation-state and "diplomacy." Networks are neither private nor public in the
sovereign sense; they represent neither a domestic nor an international "actor." Temporally, attacks always have a catastrophic element. They are simply faster
than mihtary "threats" in the tradirional sense because they happen without a contextual warning. In other words, uncertainries associated with terrorism escape
the logic of risk as terrorism alters the very contours of world politics: It represents a qualitative change that redefines the very game and reality that states face.^s
the current fight against terrorism
attempts to reduce the interplay of those various logics to the imperative of
deterrence. It is the attempt to ignore categorical shifts and its associated uncertainties and replace
it by "traditional security policy." In this sense, the readdressing of terrorism to states that harbor
terrorists is then an attempt to invoke the traditional vocabulary of
deterrence and the logic of the security dilemma. So when we look at terrorism as an issue of "systemic" importance, the fight
However, by focusing primarily on "sponsor states" and an "axis of evil,"
represents an expansion of "uncertainty to risk" reasoning to a phenomenon that, from its qualities, belongs to the realm of epistemic probability theory. Neither
the assumption of well-defined problem settings and repeatable events nor the fixation of the political vocabulary or the mutual formation of expectations based on
"known" adversaries applies. When read from the context of probability theory, the current endeavors are subject to a conflict between intersubjective
epistemology and individualist ontology that manifests itself as a conflict between universal validity of statements and the particularity of contexts. While the
universality argument points to the laws associated with the balance of power, of deterrence and pursuit of national interests, the contextual dimension points to
(self-) reflexivity and contingency of one's own position. What might be true here might not be true there. Accepting uncertainty would make it imperative to
understand the other's position and engage in a dialogue. However, in a sense,
the current fight uses a universal
method to fight a contextual problem. The article proposed a framework of risk, uncertainty, and probability and argued
that we experience an overall transformation from "insecurity" to "uncertainty." The insecurity paradigm treats the notion of security as theoretically superior to
that of uncertainty and risk. The primary task of security policy is then the avoidance of risk. Starting from welldenned categories and games, this approach is
constitutive for deterrence and détente as two modes dealing with contingency within preset games. Positions based on the uncertainty paradigm that sees a
categorical differentiation between risk and uncertainty leave the confines of the security dilemma behind.
Security becomes an
empty concept and politically unachievable. In this context, uncertainty describes an unstructured realm, where
standard criteria of rationality do not apply. Pointing to a possible- and multiple-worlds' semantic, this approach is interested in how actors actively structure or
construct the world they live in. From this perspective, the current problem is not insecurity deriving from the security dilemma, but uncertainty deriving from the
changing categories of our political vocabulary signifying unpredictable futures and inconsistent policies. At the same time, however, the current fight against
terrorism is structured in such a way as to reduce the various kinds of uncertainties and contingencies to the logic of deterrence. Hence deterrence has not lost any
of its actuality; however, by applying this logic in a context that challenges its constitutive boundaries, it seems as if the option of détente has been lost. In other
words, what we see is that the logic of the security dilemma, and its particular semantics of threat, risk, and security, is used for the framing of terrorism as a
threat. As a consequence, we can identify three dynamics "driving" today's security policy that result exactly from the conflict between the intersubjective
constitution of threats and the individual ontology of the deterrence strategy as today's main strategy. First, as Aradau and van Muster have convincingly argued,
it translates into a dramatic increase of surveillance technologies: In the fight against
terrorism, surveillance functions as an early warning system that allows identification of potential terrorists and therewith, and at the same time, is thought to
"deter" future attacks. The introduction of private data, video cameras, and biométrie data is presented as a legitimate means to detect and deter future terrorist
measures are introduced on the basis of the precautionary principle
that—in our view—is so attractive exactly because it tries to reduce various kinds of
uncertainty to a logic of insecurity. Second, what is commonly known as the revolution in
military affairs, introduces the same individualist ontology on the level of
military policy: It translates the catastrophic features of terrorism into a logic
of deterrence by actively reshaping the spatial and temporal conditions of
military conduct. The strategy is to introduce technologies that can be remotely controlled without employment of soldiers. The task
is to be ready to "strike back," instantly and at any time from any place in the world. However, and thirdly, these
measures are based on an unnecessary necessity. Presenting terrorism as an objective threat that
"exists" independent of practices might produce a distance between oneself
and "the other." However, it misses out the importance of context and other
means of "risk management" that would require a selfreflective analysis of
how "us and them" are constructed in the first place.
attacks. These
Link - Warrants
Warrants and other legal constructs are antiquated relics of old law
that ultimately hinder the true search for justice
Balkin 97 -
Knight Professor of Constitutional Law and the First Amendment at Yale Law
School
(Jack, "Agreements with Hell and Other Objects of Our Faith; 1/97;
digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1262&context=fss_papers, issue 65, pg
1717-1718), “LJH”
Even though it is possible to read certain portions of the Constitution aspirationally, there are
large parts of the text that resist such an interpretation. I do not merely mean the structural
guarantees and provisions that set up the general housekeeping of the Republic. There are any
number of clauses in the Constitution that seem to reflect the concerns of an
earlier age. They exist even in the hallowed Bill of Rights. We tend to forget that
the original Bill of Rights was originally twelve articles, not ten. The other two proposed
amendments are important because they give us a greater sense of the Bill's structure. They are by
no means foreign to the spirit of the Bill of Rights but help us to see more clearly what that Bill
was. The second of the original twelve articles concerned compensation for Senators and
Representatives; it was eventually enacted as the Twenty-Seventh Amendment. " The first article
of amendment ensured an upper limit on the size of Congressional districts as the population
grew. Thus, our First Amendment was really the Third. These provisions reveal more
clearly that the Bill of Rights was and is not merely a charter of abstract
liberties. It contains structural guarantees of federalism like those in the Tenth Amendment. It
refers to specific procedural mechanisms-like the grand jury and the
warrant-that are peculiar to the traditions of Great Britain and need not
form a part of a just society. Indeed, many people think that some of these
guarantees-the basic structure of an adversarial system in criminal cases
and the requirement of trial by jury in all federal civil cases over twenty
dollars-hamper the pursuit of justice
Bureaucratic mechanistic thinking has infiltrated law – requiring it to
be contradictory and fundamentally flawed so as to incorporate
conflicting values
Frug 97 - Louis D. Brandeis Professor of Law at Harvard Law School
(Gerald, “THE IDEOLOGY OF BUREAUCRACY IN AMERICAN LAW”, 97 Harv. L. Rev
1276 1983-1984), “LJH”
Moreover, modest realists tend to respond to their critics' concrete suggestions for change in the
manner of a sober grown-up addressing a naive child.374 If the suggestion is "in the ballpark,"
they treat it as one more factor that needs to be "weighed" against a host of other competing
factors,375 and the likelihood that they will accept the suggestion is low. Chances are that it has
already been weighed and found overridden by other factors, or has already been taken into
account to the extent that it has merit, or has yet to develop a sufficient track record to be
seriously considered, or is simply too trivial a revision of the status quo to be worth pursuing. If,
on the other hand, the suggestion proposes some radical change, the modest realist dismisses it
out of hand as utopian. "Things are complicated and difficult," one almost hears the modest
realist saying. "Of course we have a long way to go. But everything is a tough policy choice, and
every decision we make will have its faults. All we can do is the best we can." [E]clectic
liberalism . . . carries to a higher plane of abstraction the wisdom contained
in the judicial methodology called balancing - a term that is nothing more
than a metaphor for the accommodation of conflicting values. . . . If human
beings are diverse, if social reality is complex, legal scholarship generally
must steer the course it hasclarifying intuitions, exposing complexity,
showing the impossibility of achieving all goals at once, and advocating
accommodation of values tailored to particular circumstances. In my view,
modest realists have not rejected bureaucratic theory in favor of sophisticated reflection about the
real world as it is. They have instead absorbed the various bureaucratic theories into their view of
the world - indeed, into their very definition of themselves. Notice how the various models of
bureaucracy structure the modest realist position. Like workers in a formalist bureaucracy,
modest realists only value instrumental, programmatic thinking; they want
to discuss not your vision of the world (or your critique of theirs) but only your
plan of action, the next concrete step you propose. They are interested in means not ends,
facts not values. Although they retain discretion (they have ideas about how to change the world),
they accept as given that most basic decisions are beyond their control. Moreover, like managers
in the expertise model, modest realists have a sense of the world: they know what it's like. As is
characteristic of bureaucratic "experts," their self-assurance rests not on specific ideas but on
their ability to assert their authority. They act as if they are in a position to choose dispassionately
among alternative courses of action - as if they are competent to make impersonal judgments.
Like judicial review theorists, modest realists accept bureaucracy as a fact of life, although they
are willing to limit its excesses. They too apply a deferential standard when they inquire into
bureaucratic institutions because they fear that excessive attempts to change things will just make
matters worse. When asked to decide something, they act like judges: they
"balance," they "weigh," they shift burdens of proof. Like judges, they leave
the person whose ideas they are evaluating in the dark about how their
ultimate decision is being made. Finally, like interest-group pluralists,
modest realists think that any proposals for changing bureaucratic
institutions should be framed in terms of legislative action. Whether or not they
seek change through interest-group politics themselves, they are careful not to let their political
views influence the way they act in their other roles in life. Thus they avoid using their capacity as
shareholders to change the nature of corporate policy, insisting only that the corporations in
which they invest advance their economic interests. Similarly, as employees, they think it wrong
to bring political conflict into the workplace; they believe they owe their company a duty of loyalty
as long as they continue to work for it. In their roles as shareholders and employees, in other
words, they act like consumers of bureaucratic services: they are free to sell their stock or quit
their jobs but not to use these roles to transform corporate policy.
Democracy only serves to support existing structures – gives no real
power of change to the populous
Frug 97 - Louis D. Brandeis Professor of Law at Harvard Law School
(Gerald, “THE IDEOLOGY OF BUREAUCRACY IN AMERICAN LAW”, 97 Harv. L. Rev
1276, pg 1354), “LJH”
Yet another ingredient in the creation of a judicial review theory was the
theorists' attitude toward democracy. Although they assumed that democracy was
desirable, they sought to define the democratic process narrowly. Democracy was not a
way of actually operating social organizations. It was instead a means of
choosing among competing elites for leadership, a process that supported
extant bureaucratic forms by legitimating them through an image of
consensus. The maintenance of this consensus required that any judicial intervention in
corporate or governmental affairs be exceptional. Of course, a theory of democratic
consent could validate every action taken by a bureaucratic organization;
the courts therefore had to ensure that some limits were placed upon
bureaucracy. But the courts were themselves limited by democratic consensus; to maintain
their own legitimacy, they had to respect democratic limits and defer to the support conferred by
democracy on the bureaucracies they policed. All three of these attitudes (and many
more could be added) sought a middle ground to resolve controversial
issues - a compromise between formalism and realism, acceptance of
bureaucracy and its rejection, socialism and capitalism, democracy and
elitism. These middle positions were strongly defended as the only possible way out of these
disputes and as the only positions grounded on the subtlety and sophistication necessary in the
modern world. They were also defended on more emotional grounds: opposition to the middle
positions threatened the rule of law, the strength of the economic system, the future of democracy
itself. If democratic capitalism had any meaning, the middle positions had to be patiently worked
out. Attacks from all sides, far from exposing the system's inherent
contradictions, reinforced the need for perseverance. The fact that each new "test"
that defined the middle positions seemed unable to hold the contradictions together for long
meant only that efforts to find a better test had to be redoubled. Viewed from the outside,
however, the enterprise remains a puzzling one. Refinement of the judicial
review theory seems a Sisyphean task, given the relentlessness of the
restatements of the subjective/ objective structure that the refinements
generate. The middle positions, instead of resolving the problems they
address, seem merely to sweep them aside in an effort to protect the status
quo through incremental change. The emptiness of the phrases endlessly combined and
recombined to form "tests" appears as an evasion of thought rather than an exercise of subtlety.
That is why, from the outside, those who seek to perfect the model emerge as priests of a lost
religion who "brazenly . . . [advertise] their own failure as the triumph of worldly wisdom over
intellectual and political enthusiasm."
Impacts
Double government means that legal reforms to national security
matters will fail – appearance of accountability is an illusion
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
U.S. national security policy has scarcely changed from the Bush to the
Obama Administration. The theory of Walter Bagehot explains why. Bagehot described the
emergence in 19th-century Britain of a “disguised republic” consisting of officials who actually exercised governmental
power but remained unnoticed by the public, which continued to believe that visible, formal institutions exercised legal
Dual institutions of governance, one public and the other
concealed, were referred to by Bagehot as “double government.”602 A
similar process of bifurcated institutional evolution has occurred in the
United States, but in reverse: a network has emerged within the federal
government that exercises predominant power with respect to national
security matters. It has evolved in response to structural incentives rather than invidious intent, and it consists
authority.601
of the several hundred executive officials who manage the military, intelligence, diplomatic, and law enforcement agencies
responsible for protecting the nation’s security. These officials are as little disposed to stake out new policies as they are to
abandon old ones. They define security more in military and intelligence terms rather than in political or diplomatic ones.
Enough examples exist to persuade the public that the network is subject to judicial, legislative, and executive constraints.
This appearance is important to its operation, for the network derives legitimacy from the ostensible authority of the
public, constitutional branches of the government.
The appearance of accountability is,
however, largely an illusion fostered by those institutions’ pedigree, ritual, intelligibility, mystery, and
superficial harmony with the network’s ambitions. The courts, Congress, and even the presidency in reality impose little
constraint. Judicial review is negligible; congressional oversight dysfunctional; and presidential control nominal.
Past
efforts to revive these institutions have thus fallen flat. Future reform
efforts are no more likely to succeed, relying as they must upon those same
institutions to restore power to themselves by exercising the very power
that they lack. External constraints—public opinion and the press—are insufficient to check it. Both are
manipulable, and their vitality depends heavily upon the vigor of constitutionally established institutions, which would not
have withered had those external constraints had real force. Nor is it likely that any such constraints can be restored
through governmental efforts to inculcate greater civic virtue, which would ultimately concentrate power even further.
Institutional restoration can come only from an energized body politic. The prevailing incentive structure, however,
encourages the public to become less, not more, informed and engaged.
Sacrifice of humanitarian values, greatest danger to liberty,
dehumanizing outgroups, and permanent war economy
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
That the Trumanite network could have emerged in full public view and without invidious intent makes its presence all the
more implausible. Its existence challenges all we have been taught. There is, however, little room for shock. The pillars of
America’s double government have long stood in plain view for all to see. We have learned about significant aspects of
what Bagehot described—from some eminent thinkers. Max Weber’s work on bureaucracies showed that, left unchecked,
the inexorability of bureaucratization can lead to a “polar night of icy
darkness” in which humanitarian values are sacrificed for abstract organizational
ends.604 Friedrich Hayek’s work on political organization led him to conclude that “the greatest danger to
liberty today comes from the men who are most needed and most powerful
in government, namely, the efficient expert administrators exclusively
concerned with what they regard as the public good.” 605 Eric Fromm’s work on social
psychology showed how people unconsciously adopt societal norms as their own to avoid anxiety-producing choices, so as
to “escape from freedom.”606 Irving Janis’s work on group dynamics showed that the greater a group’s esprit de corps,
likely to result
in irrational and dehumanizing actions directed against out-groups.”607
“the greater the danger that independent critical thinking will be replaced by groupthink, which is
Michael Reisman’s work on jurisprudence has shown how de facto operational codes can quietly arise behind publicly
embraced myth systems, allowing for governmental conduct that is not approved openly by the law.608 Mills’ 1956 work
the centralization of authority among officials who hold a
common world view and operate in secrecy can produce a “military
metaphysic” directed at maintaining a “permanent war economy.”6
on power elites showed that
No great of autocratic strongman, but slow tightening of centralized
power, kills democracies
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
The price lies in well-known risks flowing from centralized power,
unaccountability, and the short-circuiting of power equilibria. Indeed, in this regard
the Framers thought less in terms of risk than certainty. John Adams spoke for many: “The nation which will not adopt an
The trivial risk of sudden
despotism, of an abrupt turn to a police state or dictatorship installed with
coup-like surprise, has created a false sense of security in the United
States.618 That a strongman of the sort easily visible in history could suddenly burst forth is not a real risk. The
risk, rather, is the risk of slowly tightening centralized power, growing and
evolving organically beyond public view, increasingly unresponsive to
Madisonian checks and balances. Madison wrote, “There are more instances of the
abridgment of the freedom of the people by gradual and silent
encroachments of those in power than by violent and sudden
usurpations.” 619 Recent history bears out his insight. Dahl has pointed out that in the 20th century—the century
of democracy’s great triumph— some seventy democracies collapsed and quietly gave
way to authoritarian regimes. 620 That risk correlates with voter ignorance; the term
Orwellian has little meaning to a people who have never known anything
different, who have scant knowledge of history, civics, or public affairs, and
equilibrium of power must adopt a despotism. There is no other alternative.”617
who in any event have likely never heard of George Orwell. “If a nation expects to be ignorant and free, in a state of
civilization,” Thomas Jefferson wrote, “it expects what never was and never will be.”621 What form of government
ultimately will emerge from the United States’ experiment with double government is uncertain. The risk is considerable,
however, that it will not be a democracy.
Impact - Economy
Legal complications cause endless regulatory struggle and large
economic costs – Oakland harbor proves
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 25-28), “LJH”
Even ice-cream cones are no good if you eat too many of them. Even one is bad if you eat it at the
wrong time or place. In some times and places, judges shouldn’t turn the world upside down. And
if too many judges are striving to turn the world upside down, the world may not work so well.
Adversarial legalism’s sword, honed by distrust of authority, can be used against the trustworthy
too. Adversarial legalism can be invoked by the misguided, the mendacious,
and the malevolent as well as by the mistreated. Its complexity, costliness,
and malleability can produce injustice as well as justice. The Port of Oakland’s
frustrating struggle to dredge its California harbor illustrates the other face of adversarial
legalism. In the 1970s the Port of Oakland in San Francisco Bay initiated plans
to deepen its harbor to forty-two feet in order to accommodate the larger
ships of the future. In 1986 the U.S. Congress, which finances improvements in the national
navigation system, authorized funding for the project . For the next eight years,
however, a seemingly endless series of regulatory actions and lawsuits
blocked the dredging of the harbor. Before the early 1970s seas and harbors were used
as free disposal sites for sewage sludge, garbage, and chemical wastes. Regulatory officials and
environmentalists had little input into port expansion decisions. Dredging and disposal
operations dislodged chemical wastes buried in urban rivers and bays, destroyed marshlands, and
disrupted fisheries (National Research Council, 1985). Today, however, dredging projects require
a permit from the U.S. Army Corps of Engineers; pursuant to the National Environmental Policy
Act, the Corps must first prepare and circulate a comprehensive analysis of all potential
environmental impacts and methods of mitigating unavoidable adverse consequences. The Corps
of Engineers’ decisions, in turn, are checked by other governmental bodies—the U.S. Fish and
Wildlife Service, the National Marine Fisheries Service, the relevant state department of fish and
game, the U.S. Environmental Protection Agency, the state agency charged with protecting water
quality, and the relevant state coastal zone management agency. Each of these agencies,
responsible for enforcing a specific environmental statute, is legally instructed to object to or
block dredging projects that fail to meet those statutory standards. There is a third level of legal
control: citizens, local politicians, and environmental advocacy groups who think that the Corps
or the other agencies have not fulfilled their statutory responsibilities are legally empowered to
file a lawsuit and seek judicial review of their decisions. In the Port of Oakland case, the Army
Corps of Engineers issued an Environmental Impact Statement (EIS) in 1986. It approved
disposal of the dredged harbor floor sands at an established dumping site in San Francisco Bay,
near Alcatraz Island. Environmentalists, fishing interests, and state regulatory officials raised
concerns about damage to water quality and fisheries. The Corps, in response, conducted further
sediment tests and in September 1987 released a Supplementary EIS comparing various
alternatives. It called for “special care” disposal and “capping” methods for about 21,000 cubic
yards of sediment (less than 1 percent of the total project) to be dredged from certain
contaminated areas, but concluded that in-Bay disposal of the bulk of noncontaminated
sediments would have no adverse environmental effects. State and local regulatory agencies,
however, had legal power to block in-Bay disposal under state environmental law, and they
preferred disposal in the deeper waters of the Pacific Ocean. Confronted with this regulatory
deadlock, Port of Oakland officials in January 1988 proposed disposal at an ocean site designated
1M, although that would double the cost of dredging. New regulatory hurdles then arose. Fish-
ermen claimed that disposal at 1M would harm ocean fisheries. The Corps prepared another
Supplementary FJS, which disputed the fishermen’s claims. Nevertheless, the U.S. Environmental
Protection Agency, statutory guardian of ocean waters, refused to issue a permit for 1M, and an
environmental advocacy group (that had opposed disposal at Alcatraz) prepared to bring a lawsuit
challenging the Corps’ Supplementary EIS; the environmentalists said the sediments should be
dumped beyond the Continental Shelf, fifty miles out at sea. The Corps responded that it was
legally precluded from authorizing disposal beyond the Continental Shelf because that would cost
at least twice as much as 1M without being demonstrably better in environmental terms. Prodded
by increasingly anxious Port of Oakland officials, in March 1988 the Corps and the EPA
negotiated a compromise, also agreed to by environmental groups and a federation of Pacific
fishing associations. Ocean site BIB, ten miles off the coast, would be used for the first 500,000
cubic yards of the dredged material (except for sediments from the clearly contaminated area);
further testing and study would precede any decision concerning disposal of the remaining 6.5
million cubic yards. The dredging machinery and barges moved into place. When access to court
is easy, however, compromise is unstable. In mid- April of 1988, just before the dredging
commenced, the Half Moon Bay Fishermen’s Marketing Association brought suit in federal court,
alleging that the BIB disposal decision violated a number of federal regulatory provisions and
would disrupt fisheries. The U.S. district court judge, and then the federal court of appeals,
rejected the fishermen’s legal claims. The dredging machinery completed one day of digging.
Then, on May 16, 1988, a state court judge, responding to a new lawsuit based on another legal
argument, held that the dredging permit had been issued without a requisite certification from
the California Coastal Commission. The dredging stopped. By that time, shipping lines using the
Port of Oakland were screaming for deeper water. Desperate port officials announced an
alternative plan to dispose of the first 500,000 cubic yards of dredged material in the Sacramento
River Delta, where it would be used to reinforce levees. Local regulatory processes then creaked
into action. The Port prepared a new EIS. After a year or so, a California regional water quality
agency approved the plan, but the Contra Costa Water District challenged the Port’s EIS in state
court. Yet another year later, in July 1990, the court upheld the Delta plan. At that point, however,
the Port of Oakland declined to go forward, since regulatory conditions designed to safeguard
Delta water quality had pushed estimated disposal costs to $21 per cubic yard, ten times the cost
of disposal at Alcatraz. As Oakland officials searched for other disposal alternatives, new legal obstacles arose. The Water Quality Control Board for San Francisco Bay explicitly banned deposit of
all new dredge project spoils in the Bay, as did the National Marine Fisheries Service, which cited
dangers to already diminished salmon populations. Officials from the National Marine
Sanctuaries program and other environmental groups objected to ocean disposal off the Continental Shelf. The EPA, having been burned by litigation, retreated into legalistic defensiveness,
refusing to approve any new ocean disposal site. It noted that federal law required agency officials
to make scientifically grounded findings about the environmental impact of ocean disposal, and
yet the requisite mapping of the ocean bottom and currents had not even been initiated until
1990. No decision that would hold up in court, EPA indicated, could be made before 1994. All
this time, while possible environmental harms were debated and investigated, very tangible economic and social harms mounted. The powerful
and costly hydraulic dredging equipment stood idle. Big ships that sought to
call at Oakland, nearly scraping bottom (and thereby risking truly
significant environmental harm), had to carry reduced loads and wait for
high tides. Schedules of container trains and waiting warehouses and factories were disrupted.
Shipping companies, facing higher costs and customer complaints, scrapped plans to expand
operations at the Port of Oakland. The previously successful port lost money, and hence the
municipal government lost revenues it needed to maintain social services. Port-related
employment was adversely affected. Finally, political pressure mounted, new studies were
funded, new impact statements were prepared, and more regulatory hearings were held. In late
1992 partial “Phase I” dredging, encompassing 500,000 cubic yards of sediment, was at last
permitted. The contaminated sediment (21,000 cubic yards) was deposited in a lined upland site.
Regulation officials allowed the port to dump the other half-million cubic yards near Alcatraz in
San Francisco Bay—just where the Port and the Corps of Engineers had first proposed in 1986
(U.S. Army Corps of Engineers, 1992a). (In the interim, additional sampling and testing costs
incurred by the Port of Oakland and the Corps of Engineers had reached almost $4 million, or $8
a cubic yard for Phase I— more than double the cost of the actual barging and disposal operation.)
For the next six million cubic yards, a final decision did not come until late 1994, after a
multimillion-dollar research and analysis program. The relevant agencies endorsed a much more
expensive disposal plan: some dredged sediments would be barged by sea to the edge of the
Continental Shelf, and some (in order to win the support of environmental groups) would be used
to create new wetlands far up the Sacramento River Delta. Funding the wetlands disposal project
required a $15 million appropriation from Congress and an additional $5 million from the
California legislature—at an estimated cost of about $20 per cubic yard. In 1995 the port finally
was dredged to the planned forty-two-foot depth (Busch, Kirp, and Schoenholz, 1999: 193- 194;
Kagan, 1999b).
Impact - Liberalism
Twisted translations of the ‘rule of law’ by Western, corporate entities
enable neoliberalism and the plunder of developing nations- ensures
poverty and environmental and cultural destruction
Mattei and de Morpurgo 2009 – *Professor, Hastings College of the Law &
University of Turin; **M.Sc. Candidate, International University College of Turin; LL.M.
Candidate, Harvard Law School (January, Marco and Ugo, Bocconi School of Law);
(“GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW”, Ugo Mattei
and Bocconi Morpurgo, Bocconi School of Law Student- Edited Papers, 04/01/10,
http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=bocconi_legal_pa
pers, 06/24/15) JG
The expression ‘rule of law’ has gained currency well outside the specialized learning of¶ lawyers. It has
reached political and cultural spheres, entering everyday discourse and media¶ language, it is pronounced in countless
political speeches and promenades on the agendas of¶ private and public actors.¶ Unfortunately, the term has
incrementally lost clarity and is today interpreted in widely¶ disparate ways. ‘Rule of
law’ is almost never carefully defined as a concept; users of the¶ expression allude to meanings that they assume to be clear
and objective but are not so. Rule of¶ law has thus become part of that dimension of tacit knowledge, described by Polanyi
in his¶ classic study of human communications.6¶ Naturally, this
would be a perfectly innocent
and¶ common phenomenon, not worthy of inquiry, were it not for the
weighty political implications of¶ the phrase in different contexts.7¶ The connotations of the expression
‘rule of law’ have always been implicitly positive. Today,¶ the concept is inextricably linked to the
notion of democracy, thus becoming a powerful, almost¶ indisputable,
positively loaded ideal. Who could argue against a society governed under¶ democracy and the rule of law?¶
The rule of law lives today in a comfortable limbo, stretched to fit the needs
of every side of¶ the political spectrum as a symbol or an icon rather than as a real-life institutional
arrangement¶ with its pros and cons to be discussed and understood as those of any other cultural artefact. It is¶ necessary
to get to a better understanding of this powerful political weapon,
and to question its¶ almost
sacred status, by analyzing it as a Western cultural artefact, closely connected with the¶
diffusion of Western political and economic domination.¶ The rule of law
rhetoric has been used as a justification for ‘plunder’ (broadly definable as¶ inequitable
distribution of resources by the strong at the expenses of the weak), thus backing a¶ claim that it has been used ‘illegally’.
This can be identified as ‘the dark side of the rule of law’,¶ which is kept silent from any public
discussion. In order to deeply understand both sides of the¶ rule of law, the close connection of such concept with the ideal
of democracy has to be¶ disentangled, and on the contrary its close association with practices of ‘plunder’ has to be¶
recognized.¶ In the dominant liberal democratic tradition the rule of law has at least two different¶ aggregates of meaning.
In the first, the
rule of law refers to institutions that secure property rights¶
against governmental taking and that guarantee contractual obligations.
This is the meaning of¶ rule of law invoked by Western businessmen
interested in investing abroad. International¶ institutions such as the World Bank or the International
Monetary Fund (IMF) often charge the¶ lack of the rule of law as the main reason for insufficient foreign investment in
poor countries.¶ 6¶ Michael Polanyi, The Tacit Dimension (Peter Smith Publisher, Magnolia 1983).¶ 7¶ For power
implications of vague meanings, or what he calls ‘plasticwords’, see Uwe Porsken, Plastikworther.¶ Die Sprache einer
internationalen Diktatur (Klenn-Cotta, Stuttgart 1989). For a similar observation on the rule of¶ law as a vague notion, see
G Ajani, Navigatori e giuristi. A proposito del trapianto di nozioni vaghe, in V ¶ Bertorello (ed) Io comparo, tu compari egli
compara: che cosa come, perché (Giuffre’, Milan 2003) 3-18. ¶ BOCCONI SCH. L. STUDENT-ED. PAPERS, PAPER NO.
2009-03/EN 6¶ LAST MODIFIED: 04/01/2010¶ The
rule of law is thus interpreted as the
backbone of an ideal market economy. Normative¶ recipes for market
liberalization and opening up of local markets to foreign investment thus¶
come packaged with the prestigious wrapping of the rule of law.¶ According to the
second approach, which relates to a liberal political tradition rooted in¶ ‘natural law’ and in the more secular form of
‘rational law’, society should be governed by the¶ law and not by a human being acting as a ruler (sub lege, non sub
homine). The law is¶ impersonal, abstract and fair because it is applied mechanically to anyone in society, and a ¶ system is
effectively governed by the rule of law when its leaders are under its restraint.¶ Some conservatives might favour the first
meaning, protecting property and contracts. The¶ second meaning, providing rights, is a favourite of the moderate left and
of many international¶ human rights activists seeking to do good by the use of the law (the ‘do-gooders’). Perhaps¶
someone located in the so-called ‘Third world’ would claim to be a champion of both meanings,¶ which appear to merge in
the recent, comprehensive definition of the World Bank:
‘The rule of¶ law requires transparent legislation,
enforcement, and accountable¶ governments to maintain order,
promote the private sector growth, fight poverty and have¶ legitimacy’.8¶ A system can be governed
by the rule of law in one or the other sense. There are systems in¶ which property rights are
worshipped but that are still governed by ruthless, unrestricted leaders.¶
President Fujimori’s Peru or Pinochet’s Chile are good recent examples of such
fair laws, predictable
arrangements,¶ but many other authoritarian governments presently in office mainly in Africa, Asia and Latin ¶ America
that follow the ‘good governance’ prescriptions of the World Bank also fall in this¶ category.¶ In other systems, with good
human rights credentials, governments interpret their role as¶ significantly redistributive. Property rights may not be
sacred, and a variety of ‘social theories’¶ may limit their extension or curtail them without compensation. In such settings,
quite often,¶ courts and scholars might develop theories that limit the enforcement of contracts in the name of¶ justice and
social solidarity. Consequently, they might fit the second but not the first definition of¶ the rule of law. Scandinavian
countries, amplifying attitudes shared at one time or another in¶ history by a number of continental legal traditions such
as France, Germany and Italy (or the¶ United States’ New Deal), might offer such a model in Western societies.¶ Western
countries have developed a strong identity as being governed by the rule of law, no¶ matter what the actual history or the
present situation might be. Such identity is obtained—as is¶ the usual pattern—by comparison with ‘the other’, almost
invariably portrayed as ‘lacking’ the¶ rule of law.¶ Based
on the idea that others ‘lack’ the rule of
law, many external interventions have been¶ enacted in the so-called ‘developing countries’
by Western actors. Many of such interventions,¶ instead of being beneficial for the local society, have
shown the possibility for the law to be used¶ as an instrument of oppression
and plunder, ironically representing an ‘illegal’ use of the rule of¶ law.9¶ 8¶ See World Bank, Initiatives in Legal and
Judicial Reform (The World Bank, Washington, DC 2004), 4.¶ 9¶ In ‘developing’ countries, wide sectors of the economy do
not follow state ‘formal’ law. Rather, these sectors,¶ which are usually referred to as ‘informal economies’—see H de Soto,
The Mistery of Capital (n 5)—are ruled by a¶ spontaneous, often customary, ‘informal’ law. Thus, in these contexts national
economies are divided between a¶ ‘formal’ and an ‘informal’ sector, the former being governed by state law and the latter
by an ‘informal law’. For¶ this reason, when legal reforms are implemented, the law changes only at the formal level, not
producing any change¶ for the informal economy. Rule-of-law and free-market inspired interventions on the legal system,
therefore, are¶ usually beneficial, if at all, only for the ‘formal’ economy (local elites) and for international corporate actors,
but ¶ GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW 7¶ LAST MODIFIED: 04/01/2010¶
Historically, the Western conception of the rule of law, serving the expatriate community,¶ international investors and the
desire to organize authoritarian power more effectively, was¶ imposed upon China and Japan in the late nineteenth and
early part of the twentieth century in¶ order to ‘open up’ the Asian market for foreign plunder. Earlier, throughout the
American¶ continent, the ‘lack’ of individual ownership justified the taking of Indian lands deemed vacant¶ by the Western
‘discovery’ principle. Recently, the rule of law, still an undefined and undertheorized¶ concept, has mightily been
sponsored by the so-called structural adjustment plans¶ (SAPs), the instruments used by the international financial
institutions (World Bank and IMF)¶ for conditioning their loans.10¶ There is a clear pattern of continuity, not of rupture,
between the current policy trend in the¶ international institutional setting and earlier practices, in particular colonialism.
The Western¶ world, under current U.S. leadership, having persuaded itself of its superior position, largely¶ justified by its
form of government, has succeeded in diffusing rule of law ideology as¶ universally valid, behind whose shadows plunder
hides, both in domestic and in international¶ matters.¶ Present-day international interventions led by the United States
are no longer openly colonial¶ efforts. They might be called neo-colonial, imperialistic or simply post-colonial
interventions.¶ Although practically all of European colonial states (most notably Portugal, Spain, Great Britain, ¶ France,
Germany and even Italy) regarded themselves as empires, the concept of ‘empire’ is¶ what best describes the present phase
of multinational capitalist development with the USA as¶ the most important, hegemonic superpower, using the rule of
law to pave the way for¶ international corporate domination.¶ Export of the law can be described and explained in a variety
of ways. A first example is the¶ imperialistic/colonial rule, or imposition of law by military rules, as during military
conquest:¶ Napoleon imposed his Civil Code to French-occupied Belgium in the early nineteenth century.¶ Similarly,
General MacArthur imposed a variety of legal reforms based on the American¶ government model in post World War II
Japan, as a condition of the armistice in the aftermath of¶ Hiroshima. Today, Western-style elections and a variety of other
laws governing everyday life¶ are imposed in countries under US occupation, such as Afghanistan and Iraq.¶ leave
completely unchanged the legal system governing the ‘informal economy’. Furthermore, these reforms
are¶
likely to produce negative effects on the informal sector, when ‘formalizing’ sectors of the
economy, which pass¶ from being a resource for the people to being exploited by
foreign corporate actors (see nt 5).¶ 10 The ‘real’ period of World Bank-sponsored ‘structural adjustments’
was the 1980s. The 1990s have then been¶ referred to as the ‘governance’ period. Since 1999, the ‘structural adjustment’
and then ‘governance’ paradigms¶ have formally been replaced by the so-called ‘comprehensive development’ phase,
inaugurated by President James¶ D. Wolfhenson’s strategy of a Comprehensive Development Framework (CDF)— J D
Wolfhenson, A Proposal for¶ a Comprehensive Development Framework (May 1999) available at¶
<http://siteresources.worldbank.org/CDF/Resources/cdf.pdf>—. CDF seeks to reconceptualize development by¶ going
beyond its macroeconomic and financial aspects to focus on structural, social and human concerns.¶ Notwithstanding, it
has been pointed out that no substantial change has occurred, the shift to a ‘comprehensive¶ development’ phase being a
mere shift in the legitimizing rhetoric for external intervention. On this view, see A¶ Santos, The World Bank’s Uses of the
‘Rule of Law’ Promise in Economic Development, in DM Trubek and A¶ Santos (eds), The New Law and Economic
Development, a Critical Appraisal (Cambridge University Press, New¶ York 2006) 267. ¶ BOCCONI SCH. L. STUDENTED. PAPERS, PAPER NO. 2009-03/EN 8¶ LAST MODIFIED: 04/01/2010¶ A second model can be described as
countries are
persuaded to adopt legal structures¶ according to Western standards or face
exclusion from international markets. This model¶ describes the experience of China, Japan and
imposition by bargaining, in the sense that acceptance of¶ law is part of a subtle extortion11. Target
Egypt in the early twentieth century, and, indeed,¶ contemporary operations of the World Bank, IMF, the World Trade
Organization (WTO) and¶ other Western development agencies (United States Agency for International Development¶
(USAID), European Bank for Reconstruction and Development (EBRD), and so on) in the¶ ‘developing’ and former
socialist world.¶ A third model, constructed as fully consensual, is diffusion by prestige, a deliberate process of¶
institutional admiration that leads to the reception of law.12 According to this vision, because¶ modernization requires
complex legal techniques and institutional arrangements, the receiving¶ legal system, more simple and primitive, cannot
cope with the new necessities. It lacks the¶ culture of the rule of law, something that can only be imported from the West.
Every country that¶ in its legal development has ‘imported’ Western law has thus acknowledged its ‘legal inferiority’¶ by
admiring and thus voluntarily attempting to import Western institutions. Turkey during the¶ time of Ataturk, Ethiopia at
the time of Haile Selassie and Japan during the Meiji restoration are¶ modern examples.¶ Interestingly, if the transplant
‘fails’, such as with the attempts to impose Western-style¶ regulation on the Russian stock market, or as with many law
and development enterprises, it is¶ the recipient society that receives the blame. Local shortcomings and ‘lacks’ are said to
have¶ precluded progress in the development of the rule of law. When the World Bank produces a¶ development report on
legal issues, it invariably shows insensitivity for local complexities and¶ suggests radical and universal transplantation of
Western notions and institutions.¶ Recent
examples of plunder disguised by the rule of
law rhetoric, and thus by the use of law as¶ a façade of legitimacy, can be
found in the 2002 Argentinean crisis13, the extraction and¶ management of
oil in Iraq and elsewhere14 and in the numerous situations in which intellectual¶ property
law, as conceived and imposed by the WTO (based on an ethnocentric individualistic¶ conception
of the intellectual creation), denies any benefit to the real inventors (e.g. when they¶ are a
community with age-old traditions) and entitles profits to Western corporate actors that ¶
have ‘stolen’ the idea by patenting what for others is part of their widespread knowledge.15 This¶ happens
when ideas are stolen from other cultural traditions: because they do not have a status of¶ intellectual private property
there, they can be legitimately patented by Western firms, where¶ they do have such a legal status. Automatically, they
then no longer ‘belong’ to the group from¶ whom they originated.¶ 11 Also recently described as ‘context of conditionality’.
See Sally Falk Moore, An international regime and the¶ context of conditionality, in M Likosky (ed), Transnational Legal
Process (Macmillan Publishers, London 2002),¶ 33.¶ 12 This is the classic theory of Alan Watson, Legal Transplants: an
Approach to Comparative Law (University of¶ Georgia Press, Athens, GA 1974). On the notion of prestige, see also Rodolfo
Sacco, ‘Legal Formants: A Dynamic¶ Approach to Comparative Law – Installment I of II’ (1991) 39 Am J Comp Law 1; and,
more critically, Elisabetta¶ Grande, Imitazione e Diritto (Giappichelli, Torino 2001).¶ 13 See Ugo Mattei and Laura Nader,
Plunder: When the Rule of Law is Illegal (Blackwell Publishing, Oxford¶ 2008) 35-42.¶ 14 See ibid 111-19.¶ 15 See ibid 8388. ¶ GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW 9¶ LAST MODIFIED: 04/01/2010¶ III. THE
NEO-LIBERAL PARADIGM AND THE ROLE OF INTERNATIONAL FINANCIAL¶ INSTITUTIONS
Western Law is used to justify a new imperialism and colonial
mindset in the US – invasion of Iraq exemplifies
Biswas 07 - Ph.D of Political Science at the University of MN
(Shampa, Empire and Global Public Intellectuals: Reading Edward Said as an
International Relations Theorist; 4/07; mil.sagepub.com/content/36/1/117.full.pdf,
Millennium: Journal of International Studies, issue 36, pg 117-119), “LJH”
The recent resuscitation of the project of Empire should give International Relations scholars
particular pause.1 For a discipline long premised on a triumphant Westphalian
sovereignty, there should be something remarkable about the ease with
which the case for brute force, regime change and empire-building is being
formulated in widespread commentary spanning the political spectrum. Writing after the 1991
Gulf War, Edward Said notes the US hesitance to use the word ‘empire’ despite its long imperial
history.2 This hesitance too is increasingly under attack as even self-designated liberal
commentators such as Michael Ignatieff urges the US to overcome its unease with
the ‘e-word’ and selfconsciously don the mantle of imperial power,
contravening the limits of sovereign authority and remaking the world in its
universalist image of ‘democracy’ and ‘freedom’.3 Rashid Khalidi has argued
that the US invasion and occupation of Iraq does indeed mark a new stage in
American world hegemony, replacing the indirect and proxy forms of Cold War
domination with a regime much more reminiscent of European colonial empires in the Middle
East.4 The ease with which a defence of empire has been mounted and a
colonial project so unabashedly resurrected makes this a particularly
opportune, if not necessary, moment, as scholars of ‘the global’, to take stock of
our disciplinary complicities with power, to account for colonialist
imaginaries that are lodged at the heart of a discipline ostensibly interested
in power but perhaps far too deluded by the formal equality of state
sovereignty and overly concerned with security and order. Perhaps more than
any other scholar, Edward Said’s groundbreaking work in Orientalism has argued and
demonstrated the long and deep complicity of academic scholarship with colonial domination.5
In addition to spawning whole new areas of scholarship such as postcolonial studies, Said’s
writings have had considerable influence in his own discipline of comparative literature but also
in such varied disciplines as anthropology, geography and history, all of which have taken serious
and sustained stock of their own participation in imperial projects and in fact regrouped around
that consciousness in a way that has simply not happened with International Relations.6 It has
been 30 years since Stanley Hoffman accused IR of being an ‘American social science’ and noted
its too close connections to US foreign policy elites and US preoccupations of the Cold War to be
able to make any universal claims,7 yet there seems to be a curious amnesia and lack of curiosity
about the political history of the discipline, and in particular its own complicities in the
production of empire.8 Through what discourses the imperial gets reproduced, resurrected and
re-energised is a question that should be very much at the heart of a discipline whose task it is to
examine the contours of global power.
Reliance on the liberal order is unsustainable- puts more power in the
hands of elites
Oliver Richmond, Newman, and Paris IR and Director of Centre for Peace and
Conflict Studies @ St. Andrews 2009 [New Perspectives on liberal peacebuilding eds.
Newman, Paris & Richmond p. 59-63 (Richmond, Oliver, Paris, Roland, Newman,
Edward; New Perspectives on Liberal Peacebuilding, p. 59-63, 2009, 06/29/15) JG
Because the liberal peace has been developed as a universal frame-¶ work, it depends upon institutional
mechanisms for transferral. At best,¶ these are derived from the UN system and with local consent, though of¶ course,
even in this context, this rests
upon an assertion of expert know-¶ ledge over the local
and indigenous (perhaps most infamously in the con-¶ text of the World Bank ). 2 3 The tendency has been to
imbue such¶ exchanges with conditionalities (both "negative" and positive") to¶ achieve the objectives of peacebuilders, in
the expectation that in the¶ long term the "greatest good would be achieved. Limited evidence is¶ available to assess this
though, of course, the
more limited the objectives¶ claimed, the more it can be
sensibly said that peacebuilding and state-¶ building have made important
contributions, as in Bosnia or Kosovo.¶ The difficulty is that such parsimony does not
necessarily represent a¶ self-sustaining peace or the achievement of a broader social good. In¶
some cases, coercion has been resorted to, also leading to resistance on¶ the ground
(as in Afghanistan, Timor-Leste or Kosovo). All of this has¶ to navigate around the inducement
of dependency amongst local actors;¶ yet, again, experience has shown that, where international
actors with-¶ draw or "draw-down", stagnation or collapse ensues, as at different
times¶ in Cambodia, Bosnia and Timor-Leste. 24 What tends to survive these¶ complex issues is a focus on institutions,
both their transferral in terms¶ of efficiency and local governance in terms of local ownership as a prior-¶ ity. Much of the
problem-solving literature (mainly from Western-trained¶ scholars and policymakers) represents these tendencies. 25¶
Backsliding: Emerging problems with the liberal peace¶ The liberal peace offers a blueprint and process for stabilizing
post-¶ conflict societies. Yet it has shown a marked propensity for backsliding.¶ In cases including Cambodia, the Middle
East, Sri Lanka, Lebanon,¶ Kosovo, Bosnia and Timor-Leste, direct or indirect attempts have been¶ made through donor
conditionality, arrangements with the World Bank,¶ or diplomatic and strategic relations to instil democratization,
pluralism,¶ the rule of law, human rights and new-liberal forms of marketization.¶ Broad agreement on these terms is
normally apparent amongst peace-¶ builders, which I have previously described as a weak _peacebuilding¶ consensus"
about the liberal peace, 26 and local
actors often nominally¶ join this consensus. Yet. in
the construction of liberal
conditionality¶ and institutions, little changes in the discursive political
frameworks in¶ post-conflict settings. Nationalists in Bosnia still threaten the unity of¶ post-Dayton
comparative work in a number of cases, re-¶ search indicates that, despite
Bosnia and few reforms have been internalized. In Kosovo,¶ ethnic violence is a regular occurrence and ethnic difference
looks set to¶ be the basis for the state that will emerge from the recent declaration of¶ independence. In Timor-Leste,
political and socioeconomic problems led¶ to the complete collapse of the liberal state in 2006, four years after the¶ United
Nations withdrew and independence was achieved. Recent moves¶ in Timor-Leste have seen welfare and cultural issues
placed at the fore-¶ front of political debate (and a concurrent stabilization). 2 -7 The liberal-¶ international "bubble" in
Afghanistan barely covers all of Kabul. In¶ many of these cases, a
draw-down" is currently taking place,
but there¶ is little indication that what has been achieved is self-sustainable.2
8¶ Kant was clear that his perpetual peace system would not advance pro-¶ gressively, but would be subject to attacks,
obstacles and problems, both¶ internally and externally. It is also important to note that Kant believed¶ that his system
needed to be able to conduct peaceful relations with nor-¶ liberal others and should not be used as an excuse for
hegemonic prac-¶ tices or wars with such others. It should not become a basis for new and¶ exclusionary practices, as
Macmillan argues, against non-liberal others. 29¶ Any hope of developing a broader peace in these terms therefore re-¶
quires a broader engagement than is often projected by theorists of the¶ democratic peace ` in other words, more
liberalism, not a reversion to¶ iHiberalism in the hope it will avert any backsliding". Thus, Kantian ap-¶ proaches
to peace required a focus not just on democracy and trade but¶ also on the
broader root causes of conflict, including welfare and cul-¶ ture. 30 In this way, Kant
was not merely a pillar of his establishment but¶ actually sought to unsettle the comfortable assumptions that his own¶
thinking might lead to, though he also extended Rousseau's thinking on¶ peace by favouring democracy. 3 ' So, extending
this line of thought, back-¶ sliding for Kant was
more than just a structural obstacle; it
was also rep-¶ resenalive of the failure of the putative liberal polity to
encounter the¶ other in a reflexive and pluralist manner, without reverting
to coercive¶ and conditional hegemonic engagement. Kant would not have wanted to¶ see
the democratic peace argument, for example, become a reason for¶ colonialism or imperialism redux, as Jahn has shown.
3 2 Backsliding
is as¶ much about post-conflict polities failing to achieve and maintain liberal¶ standards as it is
about a peacebuilding consensus being imposed with¶ little regard for the
local" and indigenous and, of course, with simplistic¶ assumptions about the
universality and transferability of technical and¶ contextual solutions for
peace. It also points to the need for a move be-¶ yond liberalism.¶ Institutional
responses to the problems of liberal peacebuilding often¶ focus on coordination and efficiency in peacebuilding ¶ As Mann
and Snyder have argued, democratization
can lead to ethnic¶ polarization and even
genocidal violence. 33 Certainly, such polarization¶ has occurred in Bosnia and Kosovo. Liberal human rights
can be cultur-¶ ally inappropriate or contested, as can be seen in cultural settings where¶
communities, tribes or clans, rather than individuals, are the unit of ana-¶
lysis, as in much of sub-Saharan Africa, the Pacific or Asia. 34 The rule of¶ law can mask inequity
and the privatization of state functions at the¶ expense of the needy, as appears to
be the case across all peacebuilding¶ interventions, where subsistence and
unemployment rates rarely im-¶ prove. 3 5 Civil society building is often subject to 'Iforum shopping
and¶ an instrumentalist project mentality rather than looking at localized¶ needs. Development, in its neo-liberal
or modernization forms, can mar-¶ ginalize the needy. 36 Indeed, because liberal peacebuilding is more
or¶ less always imagined within a liberal and neo-liberal state framework, it¶ can become an agent of ethnocentric selfdetermination, nationalism and¶ a bare" socioeconomic life because such states cannot compete interna-¶ tionally in an
open market and do not have the resources to establish an¶ economic base. This
emergence of bare life
for citizens means that the¶ aspired-to liberal social contract between
government and citizen is not¶ achieved, and, indeed, citizens may choose to move into grey or
black¶ markets, militias or transnational crime. 3 7 These unintended dynamics¶ are major
sources of backsliding and can be observed across a range of¶ peace operations since the end of the Cold
War.¶ Do these criticisms mean that the liberal peace is a failed project , or is¶ it
merely suffering from stress and can be salvaged? The editors of this¶ volume disagree significantly on this point. Quite
clearly it is a top-down¶ project, promoted by an alliance of liberal,
hegemonic actors. The peace-¶ building consensus behind it is broad, but the liberal peace project is¶ ~cnd~ ~
~~le~at ismo~ itsei~ don~o~ nog~a~~~cro~Her~~~h~ ~s~¶ fleeted in its coordination. It offers several different states
of being - for a¶ state-centric world dominated by sovereign constitutional democracies, a¶ world dominated by
institutions, a world in which human rights and self'-¶ determination are valued. The
only way in which
this peace system can¶ be coherent is if it is taken to be hierarchical and
regulative, which then¶ provides the framework in which human rights and self-determination¶ can be observed.
Democracy provides the political system in which¶ this process is made nationally representative. The trouble
with this is¶ that the individual is subservient to the structure and system,
which may¶ be enabling in some contexts but not in others. Where enforcement¶ and surveillance
are weak, abuses generally follow and are committed¶ by the elites who control the
various systems that make up the liberal
The ‘Liberal Peace’, imposed on an international scale, is coopted by
local elites
Oliver Richmond, Newman, and Paris IR and Director of Centre for Peace and
Conflict Studies @ St. Andrews 2009 [New Perspectives on liberal peacebuilding eds.
Newman, Paris & Richmond p. 59-63 (Richmond, Oliver, Paris, Roland, Newman,
Edward; New Perspectives on Liberal Peacebuilding, p. 59-63, 2009, 06/29/15) JG
This means that the
post-conflict individual, who is relatively power-¶ less, is required
to perform "liberal peace acts", such as voting, paying¶ taxes, engaging in the
free market and expecting rights, in order to keep¶ the international gaze
satisfied, but is not to expect that this performance¶ carries any weight. The
liberal peace is easily rendered virtual or hyper-¶ real; the copy does not represent the actual
intention of the international¶ community. Thus the liberal peace becomes a virtual peace, more¶
strongly associated with conservative forms of liberalism and under-¶ pinned by realist theory. In this sense the
liberal peace produced by real-¶ ist and idealist thinking, and even in the contexts of constructivism and¶ critical
theory, is virtual and is constructed primarily for the benefit of the¶
international community, in the hope that locals will benefit later whenit¶ becomes
internalized and the local is _converted'. Post-structuralist con-¶ tributions to international relations theory, which turn
this process on its¶ head and argue for the recognition, contextualization, emancipation and¶ de-securitization of the
individual, fail to offer a way out of this impasse.¶ Indeed, the mainstream debates have even managed to co-opt aspects
of¶ the post-structural agenda ` in particular the requirements for emancipa-¶ tion, empathy and care (but not the
recognition of alterity) ` into the¶ mainstream consensus, producing an emancipatory form of liberalism, at¶ least in
The international and academic consensus on¶ the liberal peace
across the board has been achieved on the assumption¶ that its norms and
governance frameworks are universal. But this conclu-¶ sion has been reached only on the basis of a
limited consultation, mainly¶ among the victors of the Second World War. Unfortunately, as is well¶ known, this
conversation has reinforced and favoured the hegemony¶ of official actors, key states
and their organizations, and has resulted in¶ the relative marginalization of non-state
actors, developing states, post-¶ coT~s ~aanl sta~~ei~~~ beuals'd as~ fo~ ~tfiesoriedta~ i~~tyh li~al~ gp~¶
rhetorical terms.
temic communities of peacebuilders transfer governance regimes through¶ a process of conditional funding, training and
dependency creation to¶ more primitive" recipients in conflict zones. This
process is supported¶ by the
ideological hegemony of contemporary forms of liberalism, which¶ are projected
through the various mediums of print capitalism as unas-¶ sailable. They aim to make recipients internalize the liberal
peace while¶ contradictorily gaining agency and autonomy.¶ There are a number of reasons why this has not worked. First,
despite¶ the fact that the Cold War is over, there is a varying resistance to the dif-¶ ferent ideological aspects and basic
assumptions of this liberal peace.¶ Though most accept that democratization should be a cornerstone of¶ political
organization, parts of the Middle East, South Asia and sub-¶ Saharan Africa arc led by governments that do not aspire to ¶
democratic self-determination, but democratic aspirations are very often¶ closely linked with secessionist aspirations and
state creation where iden-¶ tity minorities desire separation in order to avoid minority status. De-¶
mocratization has been shown regularly to result in only a softening of¶
feudal or corrupt politics rather than radical reform. Many across the¶ world aspire to free
markets and unfettered trade, but the vast majority¶ of the populations affected by war and conflict are economically dis-¶
advantaged because of both war and free trade. Many more
see the inter-¶ national political
economy as redistributing resources in favour of the¶ elites that drive the
neo-liberal character of the liberal peace, meaning¶ that neo-liberal economic policies generally
disadvantage the already¶ marginalized. Many resist the neo-liberal development strategies that ac-¶ company the liberal
peace. Some resist the universal claims of the human¶ rights rhetoric.¶ Many traditional elites have adopted what van def
Wane has called the¶ "partial reform syndrome", 38 in which local elites use the institutions and¶ dynamics of the liberal
peace to their own advantage by literally free'-¶ riding on the resources that it provides and by only partially implement-¶
ing its demands. In this sense, the liberal peace agenda is driven by a¶ neo-liberal notion of power - money
and
resources can be used to induce¶ institutional development and reform in
conflict zones. Local elites often¶ use this to camouflage the lack of reform.¶
Much of the critical focus on this liberal version of peace, however, is¶ on how it
concentrates on institutions, officialdom and top-down reform,¶ and thus
results in the creation of 'empty states" in which citizens are¶ generally not
seen or heard. In fact, there has been a major attempt to¶ engage with this problem in order to identify and
empower isolated and¶ marginalized groups in post-conflict zones, and indeed to provide every¶ citYe~ ~vitath bl~ ~h~
dhasagb~ nya~o~Hb~ ~~~ a~o~~~~ ~ t~¶ more traditional assumption that, if one builds institutions first, then ¶ every
other aspect of the liberal peace will automatically fall into place.¶ This, of course,
means that most
energy is expended on the top-down¶ model of the liberal peace. Some, such as
Ignatieff, have called this a¶ "rough and ready peace";'39 others, such as Fukuyama, have
argued that¶ this in effect results in the destruction of what little local or
indigenous¶ capacity was already in existence. 40 In other words, the liberal peace¶ agenda is
far from uncontested, coherent or proven in practice. It is¶ marked by local co-option,
backsliding and international unease.¶ Interventions¶ In order to attain some form of the liberal
peace, deep forms of military,¶ political, social and economic intervention must occur. This intervention
Impact - Security
Security logic justifies any actions of the state – including war and
authoritarianism
Krassmann ’12 – Professor of Sociology at the Institute for Criminological Research,
University of Hamburg (November, Susanne, Theoretical Criminology, “Law’s
knowledge: On the¶ susceptibility and resistance¶ of legal practices to security¶ matters,”
16(4), 381-382, DWB)
The idea that a political and juridical ‘culture of justification’ would be able
to bring¶ about the desired results should be treated with caution—for one thing,
with regard to the¶ particular logic of legal reasoning and justification and,
for another thing, because of at¶ least two empirical observations that shed light on law’s limitations vis-avis the¶ governance of security. First of all, the establishment of a ‘culture of
justification’ itself¶ presupposes what has yet to arise, namely a common concern about
governmental¶ encroachment in the name of security and a willingness of all parties to join in that discourse,
if not share in its related arguments. This presupposition, to be sure, is¶ indispensable for inspiring communication and
facilitating the exchange of arguments.¶ Moreover, in order to take effect the tried and true liberal legal principles, like that
of¶ proportionality and necessity, clearly need to be concretized by reasoning about actual¶ cases. Yet, the assumption of a
common concern goes hand in hand with a general trust¶ in a form of communicative reason that will allow for
transparency eventually on the¶ matters at stake. Reason and to reason within ‘a transparent, structured process of¶
analysis to determine what degree of erosion is justifiable, by what measure, in what¶ circumstances, and for how long’
(Zedner, 2005: 522), is considered basic to the solution.¶ However, just as legal
norms and principles are open to
interpretation, they do not¶ determine any normative orientations underlying the
interpretative process. As Benjamin¶ Goold and Liorna Lazarus (2007b: 11; see also Poole, 2008: 16)
observe: ‘[P]re-emptive¶ measures designed to increase security can never be
truly objective or divorced from our¶ political concerns and values.’ Typical for
the acknowledgement of competing claims¶ still to be weighed (Zedner, 2005: 508), therefore, is that they end up being
couched in a¶ rather appealing rhetoric (‘we should’, ‘judges should’). In a liberal vein, this requires a¶ resorting to the least
intrusive measures. Competing claims are thus relegated to the¶ normative framework of balance (see Waldron, 2003;
Zedner, 2005: 528).
National security bureaucrats are the source of domestic
securitization – encourages exaggeration of threats and creation of
new ones, fueling a destabilizing arms race.
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf)
The Trumanites’ propensity to define security in military and intelligence
terms rather than political and diplomatic ones reinforces a powerful
structural dynamic . That dynamic can be succinctly stated:
Overprotection of national security creates costs that the Trumanite network can externalize; underprotection creates costs that the network must internalize. The resulting incentive structure encourages the
exaggeration of existing threats and the creation of imaginary ones. The security
programs that emerge are, in economic terms, “sticky down”—easier to grow than to shrink.
The Trumanites sacrifice little when disproportionate money or manpower is devoted to security. The operatives that they
direct do not incur trade-off costs.152 The Trumanites do, however, reap the benefits of that disproportionality—a larger
payroll, more personnel, broader authority, and an even lower risk that they will be blamed in the event of a successful
attack.153 Yet Madisonian institutions incur the costs of excessive resources that flow to the Trumanites. The President
must submit a budget that includes the needed taxes. Members of Congress must vote for those taxes. A federal agency
must collect the taxes. When it comes to picking up the tab, Trumanites are nowhere to be seen. If national security
protection is inadequate, on the other hand, the Trumanites are held accountable. They are the experts on whom the
Madisonian institutions rely to keep the nation safe. They are the recipients of Madisonian largesse, doled out to ensure
that no blame will be cast by voters seeking retribution for a job poorly done. In the event of a catastrophic attack, the
buck stops with the Trumanites. No Trumanite craves to be the target of a 9/11 commission following a catastrophic
Thus they have, as Jeffrey Rosen put it, an “incentive to exaggerate risks
and pander to public fears ”154—“ an incentive to pass along vague and
unconfirmed threats of future violence, in order to protect themselves from
criticism ”155 should another attack occur. Indeed, a purely “rational” actor in the Trumanite network might hardly
be expected to do anything other than inflate threats. In this way, the domestic political dynamic
reinforces the security dilemma familiar to international relations students,
the quandary that a nation confronts when, in taking steps to enhance its
security, it unintentionally threatens the security of another nation and
thus finds its own security threatened when the other nation takes
compensatory action .156 An inexorable and destabilizing arms race is
thereby fueled by seemingly rational domestic actors responding to
seemingly reasonable threats —threats that they unwittingly helped create.
failure.
U.S. Security results in government control leading to autocratic rule
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Further, if the application of Bagehot’s theory to U.S. national security policy
is correct, whatever consensus does exist at the political level is synthetic in
that it derives not from contestation among the three branches of the
federal government but from efforts of the Madisonian institutions to
remain in sync with the Trumanite network. That network is the moving force behind any
consensus. It has forged the policies that the consensus supports; it has orchestrated Madisonian support. Finally, even if
real, the existence of a Madisonian/Trumanite consensus says nothing about the content of the consensus—nothing about
whether Madison’s second great goal of protecting the people from the government has been vindicated or defeated.
Autocracy can be consensus-based . The notion of a benign modern-day consensus on national
security policy is, indeed, reminiscent of the observation of Richard Betts and Leslie Gelb who, reviewing agreements that
emerged from national security deliberations during the Johnson Administration, concluded that “the system
worked.”569 Well, perhaps; the result was Vietnam.
Impact - Turns Discrimination
Laws are influenced by normative beliefs in society. Adherence to
legal structures perpetuates societal norms of persecution and
discrimination. Turns the aff
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 90-91, DWB)
Despite the existence of meta-normative beliefs, prescriptions are not always followed. There are context specific beliefs
about the scope of obligations arising from a particular normative belief about when to behave in the ways prescribed by
the normative belief. Universal
nor¬mative beliefs define the scope of obligation
such that everyone must all the time without exception, follow the
prescription (in international law, the principle of jus cogens where absolutely no derogation is per¬missible).
Role normative beliefs limit the scope of obligation to those whose formal or
informal role it is to comply with the prescribed or proscribed behavior. For
example, neutral states are expected to behave one way and not another, while allies can be expected to follow dif¬ferent
prescriptions. Normative beliefs are also often conditional; the scope of obligation depends on the conditions of the
specific situation. Under conditional normative beliefs, for example, actors ought to fol¬low the prescription if there is
time, if they are able, if doing so does not conflict with another specified normative belief, such as not caus-ing greater
harm, and so on. For example, food-rich states ought to contribute to famine relief while food-poor states are not expected
to do so.¶ Normative beliefs also vary by the explicitness of their specifica¬tion. The normative belief may be vague in
terms of the scope of the obligation, or the belief may be well specified, with the conditions for its scope of obligation well
elaborated. Further, the articulated justifica¬tion (persuasive reasons to hold the belief) for the normative belief may be
vague or explicit.¶ Finally, normative beliefs also vary by the density of their relation to other normative beliefs.
Normative beliefs are articulated in laws, myths and religious doctrines and they rarely
stand alone. Behavioral norms and prescriptive normative statements are
linked to, and embedded in, wider webs of normative beliefs and behavioral
norms which are in turn embedded in wider social institutions and
networks of beliefs or culture.¶ Like normative beliefs, behavioral norms vary in their
prevalence, degree of institutionalization, normativity, and the cost of noncompliance. By definition, behavioral norms are a dominant practice. Publicity about
behavioral norms becomes common knowledge and may have the prop¬erty of easing coordination. But several behaviors
may be possible in different situations, and the prevalence of a behavior may vary from always, to frequently or
infrequently practiced. For example, in the last several centuries most, though not all, states have established organized
armed forces. In cases where a practice is infrequent, it ought not to be considered a behavioral norm.¶ The degree of
institutionalization of behavioral norms is the extent to which routines and procedures that facilitate or constitute the
per¬formance of the behavioral norm are built into standard operating pro¬cedures and regulations of organizations that
function in the relevant issue area. Institutionalization
is how normative beliefs are both
inter¬nalized within organizations - as they are incorporated into practices,
policies, and rules - and externalized, as rules are adopted by other bod¬ies. Highly institutionalized norms will
be associated with rules about when to engage in practices that facilitate the conduct of the behavioral norm and actors
will consciously practice the behavioral norm and de¬vise routines for its execution. Moreover,
institutionalization can con¬tribute to changing actors understandings of
their interests; as Kathryn Sikkink has argued about human rights norms in US policy, "ideas
em¬bodied in institutions created bureaucratic interests based on the
per¬petuation of those policies.
Impact - Turns Privacy
Bureaucrat control demolishes democracy and kills free government
– turns the privacy advantage
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
They have the capability of radically and permanently altering the political and legal
contours of our society.”517 An unrestrained security apparatus has throughout
history been one of the principal reasons that free governments have failed.
The Trumanite network holds within its power something far greater than
the ability to recommend higher import duties or more windmills or even gargantuan
corporate bailouts: it has the power to kill and arrest and jail, the power to see and hear
and read peoples’ every word and action, the power to instill fear and suspicion, the
power to quash investigations and quell speech, the power to shape public debate or to
curtail it, and the power to hide its deeds and evade its weak-kneed overseers. It holds,
in short, the power of irreversibility. No democracy worthy of its name can
permit that power to escape the control of the people.
Impact - Turns Racism
Legal complexity in the US causes difficulty in fighting discrimination
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 30), “LJH”
Because it derives from basic structures of American government, the Oakland story is far from unique. The same kind of expensive, time-consuming,
legally unpredictable, extortive, and economically destructive legal
wrangling is a common occurrence in the United States. Virtually every major
portdredging plan, on the East Coast as well as the West, must slog though the quicksand of
litigation or invest huge sums in “mitigation projects” extorted by the threat of litigation.4
Adversarial legalism recurs, imposing similar risks and costs and concessions, in virtually every
kind of large-scale development or construction effort—from siting garbage dumps (Welles and
Engel, 2000) to building highways (Detlefsen, 1995), factories (Harris, 1995), and housing
projects (Frieden, 1979). The complexities and costly delays of adversarial legalism burden
commercial disputes, criminal prosecutions, and rulemaking by regulatory agencies.
Adversarial legalism slows down and imposes large expenses on American
processes for compensating injured people, drawing electoral district lines, battling
discrimination, caring for the mentally ill, choosing labor union representatives,
preserving wildlife habitats, financing businesses, running hospitals and schools, and
cleaning up chemical waste sites. No other country comes close.
The legal system is subject to racial discrimination and inconsistency
in sentencing
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 67), “LJH”
Had Warren McCleskey not lived in a southern state where the death penalty is
employed far more frequently than elsewhere in the United States, his execution would
have been far less likely.8 Moreover, within the thirty-six states that impose capital
punishment, the propensity of locally elected prosecutors to seek the death penalty—and hence
the risk that an accused murderer will get a death sentence—varies markedly from county to
county (Paternoster, 1991: 176-180).9 Had a Warren McCleskey been tried in Bronx
County Courthouse in New York City, where predominantly minority juries
have at times acquitted black felony defendants at almost three times the
national acquittal rate (Holden, Cohen, and de Lisser, 1995), he might have
gone free. Had he been tried in Alabama rather than in Georgia, the trial judge might have
imposed a death sentence even if the jury had decided to show mercy.10 The same kind of
cross-jurisdiction variation pervades the decentralized American system of
criminal justice in the handling of routine felonies as well as homicides,
which opens the door to inconsistency in enforcement, prosecution, case
processing, and sentencing, and hence to significantly different legal
outcomes for similar offenses (Levin, 1972; Eisenstein et al., 1988).
Impact - Value to Life
Law is a trivial structure that distracts us from the true proceedings
of life. This forces us to create new lives devoid of meaning.
Schlag ’09 -- Byron R White Prof of Law @ University of Colorado (Pierre, Legal
Studies Research Paper Series, “Spam Jurisprudence, Air Law, and the Rank Anxiety of
Nothing Happening (A Report on the State of the Art),” 97 Geo. L. J. 803 (2009), 831835, DWB)
Last summer, I did a stint as a swamper with AZRA, a commercial outfit in the Grand Canyon.63 For many people, going
down the river can be a lifechanging experience. It’s easy to understand how. The towering red and yellow walls, the
intense play of light and shadow, the stark lines of the encroaching horizons, the extreme heat and the breathtaking
dryness of it all conspire to put the real world in abeyance. All the little demands, requirements, schedules, preoccupations
of that real world quickly begin to seem trivial. And then they fade entirely, until they are gone. Then too there is the
rhythm of the river—of getting up early everyday, of going down the river, of making camp and breaking camp, and doing
it every day so that each day is the same as every other day. With days like that, you can really think. You can imagine for
yourself another existence. And many people do. The trip ends and they drop their jobs, partners, wives, husbands,
material possessions. They fall in love with the river, with their guide, with the desert and, in some important ways, they
never come back. I’m a reasonable person (as well as a law professor) so all I came back with was one really tiny insight.
Not only is it tiny, but it’s not even very original. And it begins like this: There
is something pervasively
neurotic about the structures of contemporary life. The excruciating
intricacies of everyday demands, the symbolic overinvestment of meaning in
the trivial, the obsessive monitoring of everything to within an inch of its
life, the constant piling on of little local meta- and infra-layers of thought—
all these things are, from the perspective of the river, pervasively neurotic.64
Contemporary life ensnares us in all sorts of little maze-games that seem to
matter tremendously and yet ultimately do not—except in the negative sense
that they distract our attention from what does or at least could matter. Now,
lots of people have had this sort of insight—the most famous perhaps being Heidegger (the “fallenness” thing).65 But my
insight, and it really isn’t much of an insight at all, is about legal scholarship. I think the
practices and
institutions of contemporary legal scholarship (spam jurisprudence, case law journalism, rank
anxiety, nothing happening, etc.) are extremely intense versions of this generalized
neurotic structure. It’s as if we were all working really hard on an imaginary bus schedule. Someone writes an
article saying we need to optimize the number of buses. Another person can’t resist pointing out that it might be preferable
to start by optimizing the number of bus stops instead. Soon someone writes that we should reconstruct the entire
schedule. Someone else will suggest that we should split the schedule along eight different parts. Someone says, the eight
parts are really sixteen. Some truly original thinker says there are ten. And then, some ranker comes along and starts
ranking whose law school has the best bus scheduling program going. And somebody else decides to hold a symposium on
bus schedule rankings. (Remember the traveling show on Bush v. Gore?)66 And then fifty years from now, someone will
write a book: How Should the Bus Schedules of 2000-Whatever Have Been Decided?67
Pretty soon, we’ve
got a collective imaginary going and we’re pushing buses and bus stops all across pages of the Yale Law
Journal and it all feels kind of real and pretty important. And it’s not hard to
believe that it’s important. For one thing people are getting real rewards—prestige jobs, chairs, program
fund- ing—for imaginary bus schedule breakthroughs. And adding to the increasing reality of the thing is the undeniable
fact that we can’t just dismiss buses or bus schedules as unreal. (If everything else fails, by the way, this is your takeaway:
Buses are real.) But the thing of it is, our
legal academic bus schedule remains imaginary.
Even if it looks a lot like the real thing, it’s still imaginary. When we put out our bus
schedule, no buses run. Word. And no Rapid Transit District (RTD) that I know of is going to change its schedule just
because some new bus stop entries have been introduced in the pages of the Yale Law Journal or wherever. Not going to
happen. So here we are, legal academics working on our collective imaginary bus schedule. And one of the things that
troubles me about this is that the imaginary bus schedule is in some important ways not at all like the RTD’s bus schedule.
The RTD faces real stakes. We legal academics don’t. Our
reality principle—to the extent we have one at all—
is decidedly indeterminate: get tenure/avoid showing cause. So if we want to construct a bus schedule
with stops every ten yards (all in the name of rigor or precision) then we can have at it. And realize, please, that I’m not
being extreme here. It’s not like this hasn’t been done. Over and over again.68 And then there’s the normativity thing. I
once read an article that purported to elaborate about what the Constitution should be. Now what struck me as odd was
that the author really did want to free himself (and his reader) from any official pronouncements of what the Constitution
is. This struck me as incredibly weird. What an odd thing to do. If the question “What should the Constitution be?” is not
anchored in what the Constitution is (whatever that might be), then why not go for broke: I
say let’s have a
constitution that guarantees universal health care, tastes a lot like Ben &
Jerry’s ice cream, and is laugh-outloud funny. You leave it to me? I say: Go big. Is this flip?
Well, of course, it is. But hey, I’m not the one who invented this practice of normative legal thought. I’m just pointing it
out. In fact, that’s what I do these days. Check that: It’s what I used to do. I used to have a pretty good job as a satirist.
Good working conditions. Not much competition. I’m out of business now: Legal thought satirizes itself.
For me now, it’s all just point and shoot. There’s something gratuitous about legal scholarship. No one, of course, writes
that the constitution should be like Ben & Jerry’s ice cream. But just what is it that precludes anyone from suggesting that
the Constitution should guarantee universal health care. (I’d be in favor—I really would.) The answer: there
are
constraints on what we argue. Sure there are.69 And who generates . . . the
constraints? Well, in part, we do.70 So what we have is an imaginary legal thought
shaped by imaginary collective constraints, one of which is the injunction that we should follow
those constraints with great rigor. My question: Is this a neurotic structure? Yes, it is. Straight out—full-flower. It has to be
because without the neurosis, there would be nothing there. No constraints at all. Now please understand: As a matter of
form, I have nothing against collective imaginaries. My only problem is this: if we law professors have to work so hard
(and so painfully) on our collective imaginaries, couldn’t we pick something more interesting, or important, or
aesthetically enlivening, or morally salient, or politically relevant than bus schedules? I mean, couldn’t we? Uh, no. Which
raises perhaps my final point. It’s not very nice, but someone’s got to say it, and apparently it’s going to be me. As
mentioned earlier, our people are not cognitively challenged. They are, bell curve and all, very
intelligent. It is easy then for people like you and I, when we look at the extreme intricacy of the work produced by these
very intelligent people, to associate the intricacy of their work with their
manifest intelligence. Indeed, we are likely to think of the relation in reciprocal terms: Because they are
intelligent, their work is intricate, and because their work is intricate, it shows great intelligence.71 But the thing I want to
suggest as a possibility here is that all this intricacy of legal scholarship is less a function of intelligence than it is a
manifestation of neurosis in the face of intractable conflicts. What conflicts? Consider
the prototypical
needs of the legal academic: A need to display great intelligence in a
discourse (law) that will ultimately not bear it. A need to contribute to disciplinary
knowledge in a discourse which is not really about knowledge or truth in any
profound sense of those terms. A need to say something intellectually respectable
within a disciplinary paradigm that we know, on some level, is intellectually
compromised. A need to display control over social, political, and economic
transactions that are in important senses not subject to control. A need to activate
moral and political virtue in a discourse that uses both largely as window dressing. A
need to make one’s thought seem real and consequential in a discourse that
is neither. I want to suggest then, and this is perhaps the unkindest cut of all, that within the dominant paradigm of
legal scholarship, it may be that there is very little of enduring value to be said. In the main it’s the rehearsal of a form, a
genre—and not a self-evidently good one.72 I have a cheery ending and a not so cheery ending The cheery ending is that it
has not always been like this. And, maybe it doesn’t have to be like this now. The
non-cheery ending goes like this: It’s going to get worse in many ways. The forces are in play—the
rankings, the administrators who want to enhance the reps of their schools, the status insecurities of young (and old)
faculty members, the pervasive triumph of pomo (ahem, ahem, told you so)73—all these
forces will
converge to produce ever more spam jurisprudence. And then something
else will happen.
Bureaucracy objectify and control human lives – that destroys value
to life
Frug 97 - Louis D. Brandeis Professor of Law at Harvard Law School
(Gerald, “THE IDEOLOGY OF BUREAUCRACY IN AMERICAN LAW”, 97 Harv. L. Rev
1276, pg 1317), “LJH”
These stances represent ways to define ourselves in terms of the formalist vision. But
these forms of selfdefinition, like the model itself, are tolerable only as long as there is some space (at
home, in the voting booth) where we can express our subjectivity - our sense of self without its being infected by the bureaucracies we have created. The
dangerous supplement analysis should help us see how such a protection of
the self is unattainable. Because the experience of subjectivity cannot be disentangled from the structures in
which people live, no realm of subjectivity can be protected from the attempt to
objectify bureaucratic life. There are no "shareholders" or "citizens" in the world who are not
simultaneously subordinates within bureaucratic structures. The attempt to objectify human life
within bureaucracies threatens to affect people in their lives as a whole - it
shapes their way of dealing with the world even in their "free" activities as
citizens or shareholders. Thus, the inability to divide people into
components means that bureaucratic objectivity invades and transforms
the subjective experience of the very people who are supposed to control and take responsibility for - bureaucratic objectivity. Everyone is in danger of becoming
"One Dimensional Man,"122 a human being who has lost the ability to sense the rich possibilities of human existence by
reducing life to the terms of instrumental rationality. Because
all human existence is affected by
bureaucratic structures, the formalist model's attempt to rob some aspects
of life of "personal" qualities threatens the life experience itself. Max Weber
articulated this fear by imagining the cloak of rationality becoming in the
end man's iron cage: No one knows who will live in this -cage in the future, or whether at the end of this
tremendous development entirely new prophets will arise, or there will be a great rebirth of old ideas and ideals, or, if
neither, mechanized petrification, embellished with a sort of convulsive self-importance. For of the last stage of this
cultural development, it might well be truly said: "Specialists without spirit, sensualists without heart; this nullity
imagines that it has attained a level of civilization never before achieved." 123
Impact - War
Failures to question behavioral norms result in compliance and
silences dissent. Lack of dissent allows for acts of war and brutality.
Only opposition to these norms can solve
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 86-88, DWB)
Both behavioral norms and normative beliefs usually have a traceable history; actors will often be able to say when and
sometimes why they or their ancestors began a practice and why they thought a normative belief was right. But
behavioral norms may also be arbitrary. In other words, there may be no good
ethical or practical reasons for a behavioral norm, yet, for some accidental reason, the
practice is accepted and ex¬pected. In this situation, no one seems to have what might be recognized
as an ethical or logical argument to justify the practice, though post-hoc rationalizations for the practice might spring to
mind if practitioners are pressed. Finally, in the sense that dominant
practices and expectations do
these things (normalize, decrease uncertainty, shape interests and the scope of
consideration, and legitimize behaviors), they are "struc¬tural" features of
international and domestic politics. In other words, behavioral norms and normative beliefs are both
constitutive (meaning making) and regulative (constraining).¶ An illustration may help clarify the distinctions and
overlaps between behavioral norms and normative beliefs. It
is possible to view complex international
practices, such as warmaking, colonialism, diplomacy, and trade in certain contexts, as
behavioral norms. These complex prac¬tices are composed of other behavioral norms (regular behaviors) and
normative beliefs. For instance, war is composed of several behavioral norms regarding
violence that leads to injury, mutilation, and death. And within the conceptual domain of
these particular practices, there are normative beliefs - prescriptions about how injury,
mutilation, and death ought to (or ought not to) come about, that rest on other normative beliefs
about what it is good and right to do. Since the widespread adop¬tion of the convention on chemical weapons in the
twentieth century, as ¶ Richard Price and Nina Tannenwald argue, the use of chemical weapons in war has been seen as
something that ought not to be done, accord¬ing to international law, while other methods of injury, mutilation, and
death, such as machine guns, remain more or less acceptable and ex¬pected or normal. But even the acceptability of
methods in war is constrained by the pre-existing web of normative beliefs in a culture - such as the belief that it is not
right to kill prisoners of war or non- combatants. ¶ Types and variations of behavioral norms and normative beliefs¶ As
Raymond notes, "Over
time all norms vary with regard to commu¬nal meaning,
perlocutionary effect, degree of internalization, extent of conformity,
patterns of deviance, and so on." It is worthwhile saying more about the variations in behavioral norms,
normative beliefs, and the possible relationships between behavioral norms and normative be¬liefs. Normative beliefs, as
propositions about what it is good and right to do, vary along several dimensions: basic type; scope of obligation;
specificity; and links to other normative beliefs. Behavioral
institutionalization, links
norms vary in terms of prevalence, degree of
to normative beliefs or normativity, and the costs of non-
compliance.¶ It is possible to distinguish four basic types of normative belief: sub-stantive (more commonly called
regulative norms), procedural, con-stitutive, and meta-normative. Substantive normative beliefs define and prescribe
what qualities and behaviors are good, for example the belief that truth is good. Procedural normative beliefs prescribe
how to decide what is good and right, for example that democratic or re¬publican procedures ought to Be used.
Constitutive normative beliefs are about the characteristics of a good social entity or what makes in¬dividuals or social
groups count as something. For example, those who follow the particular prescriptions entailed by the normative be¬lief
in question are ("good") soldiers, states, allies, and so on.
Those who do not follow the particular
normative prescriptions may cease to be considered soldiers, states, and
allies. Meta-normative beliefs prescribe that normative prescriptions ought to be followed. The dis¬tinction between
substantive normative beliefs and meta-normative beliefs is that "Moral codes and various moral taboos have a
connec¬tion with custom... But rules such as that promises ought to be kept, or that it is immoral to tell a lie seem to be
rather different... Their exis¬tence cannot truly be said to depend on historical contingencies... the rule such that promises
ought to be kept presupposes the existence of the institution of promising... [that] need not be universal." Some
normative beliefs - such as those promoting truth-telling, promise¬keeping, treating like cases alike, and following
legitimate rules - are meta-normative since they are prescriptions that are intended to guide norm following in general
and help create an intersubjective expecta¬tion that normative prescriptions will be followed because it is good to do so.
Liberal democracies justify war by creating binaries between Western
and non-Western society. This justification allows for Western
societies to declare war in the name of helping another people.
Grayson ’03 -- Senior Lecturer in International Politics at Newcastle University
(March, Kyle, York Consortium on International and Security Studies, “Democratic
Peace Theory as Practice: (Re)Reading the Significance of Liberal¶ Representations of
War and Peace,” Working Paper Number 22, 1-2, DWB)
One of the major difficulties in the critical study of International Relations is that what
at first glance¶ may
be considered a seemingly unrelated event, may in fact have profound
implications for the¶ meanings, relations, and representational practices of
the discipline and the phenomena that it seeks to¶ understand. Over the past few
years, long-standing evidence has come back into the spotlight that the¶ American Constitution was in part influenced by
the Iroquois Confederacy’s Great Law of Peace.¶ 1¶ This¶ has sparked a lively and often nasty debate between on the one
hand, those who find the idea to be¶ compelling and on the other, self-proclaimed conservatives like Rush Limbaugh and
former Supreme¶ Court nominee Robert Bork, who have on the basis of little counter evidence, found the idea to be¶
completely without merit.¶ 2¶ Moreover, these conservative pundits argue that the ability of the idea of the¶ Iroquois
influencing the US Constitution to gain any legitimacy is symbolic of a general decline,¶ initiated by the emergence of
‘political correctness’, in American society at large.3¶ Those in academia who have presented compelling evidence of the
interactions between the¶ Iroquois Confederacy and the founders of the American Constitution which plausibly points to
the¶ impact of the former on the latter, have been pilloried by their colleagues. While there seems to be no¶ dispute within
academia that the Iroquois political system embodied (and continues to embody) many¶ characteristics that we might
associate with liberal democracy (e.g., political representation, gender¶ equality, individual freedoms), charges are still
made that claims about the influence of the Iroquois on¶ the American political system are unscholarly, without rigour,
dogmatic, lacking in ‘objectivity’, and a¶ practice of ‘myth-making’.¶ 4¶ The key question here is what does this have to do
with international¶ relations?¶ The answer in part, is given
that liberal democracy and the
liberal democratic political system¶ are firmly entrenched in the American
national psyche, any suggestion that they are not wholly an¶ ‘American’ (or at
least ‘Western’) product is tantamount to a full scale attack on US national
identity and¶ the ontological presuppositions that form its foundations. This is
particularly acute when Native¶ Americans are involved, for they have traditionally been seen as the uncivilized and savage
‘other’ on¶ the North American continent. Therefore, the aim of this paper is to demonstrate that far
from being
just¶ window-dressing to (geo)strategic interests as argued by realists, or the
ultimate guarantor of peace as¶ argued by democratic peace adherents, the American (and
Western) conception of liberal democracy¶ creates the binaries necessary
for the war-making practices of the United States and other like minded¶
allies such as Canada.¶ In order to substantiate this controversial claim, I will begin by deconstructing the democratic¶
peace. Liberal democracy should be seen not just as a fundamental principle
influencing the nature of¶ state government and domestic rule, but as a
subjective tool to differentiate ‘friend’ from ‘foe’ and¶ ‘opportunity’ from
‘threat’. The notion of liberal democracy is an integral part of what Roxanne Lynn¶ Doty has referred to as the
‘representational practices’ of the American (or Western) state.5¶ Viewing liberal democracy as an
international relations practice within a representational¶ framework
clearly illuminates three significant points with regards to the theory and practice of the¶
democratic peace that will be addressed in this paper. First, is through a representational
deconstruction, the ontological nature of war and of peace become apparent.
Second, because war and peace can be just¶ as much about ontology as strategy,
war and peace may take place not only on the battlefield or in¶ diplomatic
chambers but also in classrooms and media outlets (beyond the dissemination of
propaganda)¶ through the production and reproduction of binaries and
classification schemes. In other words,¶ devastating wars are often fought equally with words as with
weapons; conversely, peace can be¶ achieved through discursive understanding as well as the laying down of arms.
Therefore, Limbaugh and¶ Bork are not simply uninformed pundits, but are also combatants in an ontological
battleground. Finally,¶ a representational view of the democratic peace helps to illustrate how democratic peace theory
and¶ practice can and perhaps even must be silent about other versions of democracy like the Iroquois¶ Confederacy
Autocracy through bureaucratic control leads to the most disastrous
decisions
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Bureaucracy, he wrote, is “the most unimproving and
shallow form of government,”612 and the executive that commands it “the
most dangerous.”613 “If it is left to itself,” he observed, “without a mixture of special and non-special minds,”
decisional authority “will become technical, self-absorbed, self-multiplying.”614 The net result is responsibility
Bagehot anticipated these risks.
that is neither fixed nor ascertainable but diffused and hidden,615 with implications that are beyond historical dispute.
“The most disastrous decisions in the twentieth century ,” in Robert Dahl’s words,
“turned out to be those made by authoritarian leaders freed from
democratic restraints.”
Alternative
Alt – Abandon Legal Reasoning
The affirmative’s reliance on legal theories doesn’t undermine the
law, but calcifies it- only abandoning legal reasoning is it possible to
solve
Kennedy 2003 (Duncan [Carter prof of general jurisprudence @ Harvard];
SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF
NORMATIVITY, AND THE ENCHANTMENT OF REASON: Pierre Schlag's The
Enchantment of Reason; 57 U. Miami L. Rev. 513; kdf)
The third meaning of enchantment is the doing of law by humble
practitioners, judges, and professors, and the theorizing of law by highly
"presumptuous" n50 professors, as if reason were not vulnerable and
unreliable, and as if reason could therefore rule in law. It is not a question of a personified reason with ineradicable
ambitions that are not severable. We are dealing with "American legal culture," and, as Pierre explains, with Rawls,
Dworkin, and then in great and admirable and convincing detail, with the "false modesty" of neo-pragmatists and
Wittgenstinians named Radin, Grey, Sunstein, Minow, Spelman, Posner, Farber, Sherry, Patterson, and Priest. As he says,
in italics, of these peoples' theories: "They
are all in their own way invitations to go to
sleep. They are all invitations to forget the predicaments of reason." n51 Moreover,
Pierre does not generally attribute to "reason" the denial of reason's predicaments. Quite the contrary, his normal
strategy is to [*527] characterize this denial as itself "an attempt to deify
reason, to fortify reason by transforming it into a seemingly more stable
kind of belief--something on the order of faith." n52 As will be seen, the very vulnerability of
reason leads to attempts to fortify reason by eradicating its tensions, its paradoxes, its contradictory movements--in short,
its vulnerable situation... . But this sort of response to the vulnerabilities of reason is precisely what leads to the
transformation of reason into its traditional enemies: faith, dogma, prejudice, and company. n53 As with the first
"overestimation" and second "rulership" senses of enchantment, there exist strong innocent and guilty motives to deny or
disregard the vulnerability of reason. On the discrediting or guilty side, Pierre provides an excellent condensed summary,
one corresponding exactly to critical legal studies (cls) dogma if one just substitutes the word law for the word reason:
Given reason's unstable identity (its difficulty recognizing itself) it can easily be drafted
into the service of even the most dubious and most dogmatic of programs.
Sometimes, reason will simply be hijacked to aid a political or normative
program. It is easy to see why "reason" should be such an appealing target
for political or intellectual hijacking. To the extent that reason, as suggested, lays claim to rule other
beliefs, the capture of reason for this or that political or intellectual project is a tempting prospect. The capture of
reason becomes in effect the capture of a mechanism that claims to exercise
(and perhaps to some extent does exercise) central command over the selection, monitoring,
and replacement of other beliefs. We should not think of the "hijacking" of reason so much in terms of
strategic or deliberate action, but rather as the flow of the normal course of events. Thus, it is to be expected that the
dominant forms of social life--whether we are talking about commodity production, technology, science, religious
practice--should inscribe their own logics within reason itself. To borrow from Marx, it should not surprise if the things of
logic should bear the marks of the logic of things. n54 This is all very well, but what about the more innocent motives that
participants in legal culture might have for denying, and that legal theorists might have for trying in some way to
overcome, reason's predicaments as manifested in law? We have left over from the earlier chapters of the book two very
strong innocent motives for denial. [*528] The
first of these is that the liberal political
theoretical icon of the rule of law seems to rely in a big way on our belief
that reason rules in law. If judges are to protect us from our fellows and
from executive and legislative actors by interpretation of constitutional, statutory, and
common law materials, without getting into "who guards the guardians?"
problems, reason must guarantee interpretation against Pierre's lists of "selfinterest, vengeance, hate, love," and "power, interest, prejudice, ... and personal proclivities," and
"arbitrariness, emotion, self-interest, politics, power, and force." n55 "In legal analysis, any time that reason is
perceived to break down, the rule of law is immediately threatened." n56
According to Pierre, a second major reason for hanging onto the rule of reason, at the cost of turning it into its opposite,
namely, faith, dogma, prejudice, and company, is that reason as ruler constitutes the grid of law, so that "there is a great
deal at stake: for the partisans of reason, it is reason itself that serves as the overarching organization of the world they
inhabit. For them, reason is the web of intelligibility. And that is not something to be given up lightly." n57 It occurs to one
that the meaning of the Delphic phrase, "it is not unequivocally a defect" that reason's ineradicable and unseverable
ambition is to rule, might be that the ambition is necessary to maintain the credibility of the rule of law and the
intelligibility of the grid. But then we need to ask, "credibility for who?"; "intelligibility for who?" Why can't we insist on
"reason as modesty" and then adopt the attitude that the rule of law is a lot less effective and reassuring than our high
school civics class presented it as being, and that law is a lot less intelligible than our first year law school teachers tried to
claim it was? Before we take this up, it is time to add the fourth sense of the enchantment of reason, and two further
innocent motives for denying the predicaments of reason.
Alt – Blanket Rejection
Limiting small aspects of surveillance fails. Only full reform can fix
the problems of surveillance
Schlanger ’15 -- Henry M. Butzel Professor of Law at University of Michigan (Margo,
Harvard National Security Journal, “Intelligence Legalism and the National Security
Agency’s Civil Liberties Gap,” Vol. 6, 204-205, DWB)
The development of intelligence legalism has been a major and salutary change in American governance over the past 35
years. Informed by recent unprecedented disclosures, this Article has traced the institutional arrangements that constitute
the NSA’s compliance ecology. Rights
enunciation and compliance serve crucial rule-oflaw values, and also sometimes further civil liberties. And yet they are insufficient to ensure
appropriate civil liberties policy. In his opinion for the Court last term, holding that the Fourth
Amendment forbids warrantless searches of cell phones, absent exigent circumstances, Chief Justice Roberts poked some
mild fun at internal government processes as sufficient safeguards of constitutional rights. “[T]he Founders did not fight a
revolution to gain the right to government agency protocols,” he wrote. But he continued, and I agree, that such protocols
are nonetheless “[p]robably a good idea.”410 In this post-Snowden moment, Congress
can and should
protect Americans’ privacy and civil liberties by clamping down on bulk
surveillance, creating legal rules that can then be enforced by the courts and
the intelligence community’s large compliance bureaucracy. But Congress and the
President should not be limited by intelligence legalism. They should also follow the quite different
strategy of amplifying voices inside the surveillance state who will give
attention in internal deliberations and agency operations to civil liberties and privacy interests. But
institutional design is important; civil liberties offices need deliberate and careful arrangements to safeguard their
influence and commitment. If civil liberties and privacy officials inside the NSA, at the White House, and at the FISA
Court can walk the tightrope of maintaining both influence and commitment, they might well make a difference—both in
debates we now know about and others that remain secret. And they may help create a document trail useful for public
oversight, too. Intelligence legalism has proven unequal to the task of opposing the “collect everything” mindset. We
need to add libertarian officials inside the surveillance state to nurture its
civil liberties ecology. If that ecology doesn’t improve, the next big leak, in five
or ten or twenty years, may reveal invasions of Americans’ privacy that dwarf
anything we have heard about so far.
We must eradicate current forms of law by fundamentally
reevaluating our political and economic systems.
Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert,
paper presented at the Fourth Annual Conference of the Toronto Group for the Study of
International, Transnational and Comparative Law and the Towards a Radical
International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and
Tactics,
http://chicago.ssrn.com/delivery.php?ID=02409411300607909207009408308000810
20990740180370420591080920650040240011070880960741210601231190210981141
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2010094115119114091030115116030067069099083005124072124028119095091029&E
XT=pdf&TYPE=2, 06/26/15) JG
What, in this context, would a strategic objective look like? Despite the¶ previously mentioned theoretical and political
diversity in critical international¶ legal scholarship, the
common ‘organic’ analysis of
international law provides a¶ basic idea of the form such a strategic goal
might assume. !ere are two obvious¶ variants of strategy here. First, there is what we might
call the ‘idealist’ variant.¶ In this account the primary problem to be dealt with is
that the ideas of liberal¶ legalism have a hold over policy makers and the public.
Consequently, strategic¶ aim would be to recon#gure the debate in such a way that
the structural critique¶ of the mainstream would be strengthened, with the eventual
aim of constituting¶ it as a hegemonic understanding of international law.29 Second, there is a¶
materialist approach, which would stress that the material basis of the problems¶ outlined above. On this
account, one cannot understand the structuring features¶ of the law and legal
argument on their own terms, or simply as ‘ideas’. Rather,¶ they need to be
understood on the basis of ‘the material conditions of existence’¶ that is to say
those ‘de#nite and necessary relations of production that human¶ beings
enter into independently of their will’.30 As such, it is social and economic¶ forces and relationships
which generate indeterminacy, lawfare and structural¶ bias. !is means that a strategic goal would
necessarily involve overcoming the¶ social relationships that give rise to the
problems outlined above, involving action¶ to transform the material conditions of our existence.31¶
0&end=25> (visited 1 August 2011) provide a similar perspective that remains critical of¶ international law’s role in
international politics.¶ 29. David Kennedy puts this point very strongly arguing that the penetration of law into decision ¶
making about war has led to an abandonment of responsibility. He therefore argues that ‘[t]¶ he way out will not be to
tinker with doctrines of the laws of force. If
there is a way forward,¶ it will require a new
posture and professional sensibility among those who work in this¶ common language. Recapturing
the human experience of responsibility for the violence of¶ war will require a professional style discouraged by the modern
interpenetration of war and¶ law’ Kennedy, ‘Of War and Law’, supra note 22, at 170.¶ 30. Karl Marx, Preface and
Introduction to A Contribution to the Critique of Political Economy¶ (Foreign Languages Press: Peking, 1976), at 3.¶ 31.
China Miéville is perhaps the most consistent and strident exponent of this position, arguing¶ that: ‘To
fundamentally change the dynamics of the system it would be necessary not
to reform¶ the institutions but to eradicate the forms of law – which means
the fundamental reformulation¶ of the political-economic system of which
they are expressions. !e project to achieve this is the¶ best hope for global
emancipation, and it would mean the end of law’ Miéville, Between Equal¶ Rights, supra note 2, at 318.¶ Strategy
and Tactics 205¶ In practical terms, of course, these are hardly mutually exclusive positions since¶ any materialist critique
relies on convincing people of its validity.32 !e point is¶ that both of these objectives are strategic and so are not directly
concerned with¶ winning arguments on the terms of liberal legalism (that is to say, whether given¶ actions would be legal
or illegal) but rather aim at overturning those very terms.33¶ 3.2. We are Strategists?
Alt -- Complexity
The alternative is to look beyond law for solutions to complex
problems
Ghoshray 2009 – PhD, JD Cornell, Professor at St. Johns School of Law, writes for in
Albany Law Review, ILSA Journal of International and Comparative Law, European Law
Journal ERAForum, Toledo Law Review, Temple Political & Civil Rights Law Review,
Catholic Law Journal, Georgetown International Law Review, Fordham Law Journal,
Santa Clara Law Review, and Loyola Law Journal, among others (1/1, Saby, Santa Clara
Law Review, Volume 49, Number 1, Article 4, “False Consciousness and Presidential War
Power: Examining the Shadowy Bends of Constitutional Curvature”)
Constitutional space is envisaged to be a linear multidimensional space99 in
which the distance between the information set'00 and the solution set'0' is constructed via the Euclidean geometric'
set of straight lines. The contours of this constitutional space is created by the statutes and
texts created under the assumption by the Framers that all possible abuses of power at the highest level had been considered with due incorporation of
relevant checks and balances. That the Framers envisioned a constitutional space containing Newtonian references of physical characteristics is evident in their
Under this Newtonian framework, the Constitution
ought to be assumed as a discrete multi-dimensional space, providing the necessary checks
and balances under a linearly applicable force in nature. Within this framework, the forces and
counter forces would be applied" 4 to the presidential exertion of war power, and the operating
exclusive invocation of forces and counter forces.'
control requirement would be applied to Congressional oversight.'05 Reminding ourselves that the shortest distance between two points is assumed to be a straight
line, the controlling assumption is that, the existing legal paradigm can fully evaluate the outcome of a legal scenario. The legal reasoning proceeds by constructing
a set of linearly placed stimuli or sources of information along the constitutional space. The determinacy of the Newtonian framework can be tested if a legal
outcome could be determined with reasonable certainty under the shared power doctrine of concurrent authority.
Setting aside the
subjectivity inherent within the legal paradigm, the concept of false consciousness and
presidential manipulation introduces sufficient distortion in the constitutional space,
causing us to question the sustainability of the Newtonian framework envisioned by
the Framers.1 °6 In the Newtonian framework, the constitutional space is envisioned
as empty, unstructured, and physically disconnected from the objects acting within that space.
Whereas, a parallel framework in the legal universe would hold the law to untangle itself from the environment in which it is to unfold. Applying this principle to
the Supreme Court jurisprudence of presidential power would hold that the laws surrounding presidential assertion of war power can step back and operate in an
the legal universe
requires is that the legal reasoning process take a determining role in the process
without being shaped by the process. While, this may be a viable process, clearly, as the legal consequences of
Iraq War has proven, 10 7 merely being viable is neither satisfactory legal outcome nor
logically acceptable. Here, I am not challenging the existing modalities of law on grounds of inadequacy. Rather, I am questioning whether
environment without meddling itself with issues emerging from false consciousness or presidential manipulation. What
some aspects of jurisprudence have lagged behind in their ability to incorporate the shared wisdom of other disciplines. However, as I believe that through every
legal consequence, we must question the outcome. We must verify whether the law is operating within perceptible bounds of logical certainty, as the law must
reinvent itself with every significant change that society goes through. Therefore, in light of our enhanced understanding of the relationship between law and the
society within which it operates, jurisprudence may be slow in reacting to the change in pace. This was echoed by Professor Tribe: "[L]egal problems in general,
and constitutional problems in particular, have not always kept pace with widely shared perceptions of what makes sense in thinking and talking about the state,
about courts, and about the role of both in society." 08 I do not hold the view that the legal universe is parallel to the Newtonian framework premised on checks
I do, however, reject the framework that rests on the
static assumption0 9 of conceiving an exhaustive set of actions within the
changing dynamics of the society, and expecting legal solutions for all such
actions." 0 The assumption that every legal question can be answered within
a legal environment, in which counter balancing forces provide adequate checks and balances, fails to address some
particularized conflicting situations and is too farfetched. For example, the existing constitutional space is not able to devise an appropriate
and balances on every conceivable action that is untenable.
solution for the proper allocation of war power between Congress and the President in a concurrent authority scenario, nor does it properly identify limits of
presidential power under exigent scenarios. This is because the existing constitutional grants were devised in accordance with a static conception, under the
assumption that legal formalism can be separated from the background of society, much like the Newtonian framework. In this framework the space is extracted
from the forces and objects playing within. The existing jurisprudence refuses to entangle itself in the learning process and refuses to recreate itself like the society
in operates within.
On the contrary, if laws were to follow the parallel universe of
Einstein, in which the space could not be detached from the objects,"' we
would not suffer the constitutional inaction of legal consequences that the
law cannot interpret.112 In the post-Newtonian physical world of Einstein, space cannot be detached from the objects that are undergoing
motions inside of it. The characteristics and actions of these objects under the application of force are primarily manifested by their relative distances and flight
times of traversals within that space. The distances and times, however, are shaped by the construction of the space, more specifically by the curved nature of it. As
a result, the space in the universe of Einstein is a continuum composed of both space and time, continually being altered amongst one another objects inside that
space. The enquiry therefore shifts to whether the constitutional space can be characterized by some other form than linear discrete multidimensional space.
Perhaps, it is time to lend credence to the concept of curved space of the Constitution as proposed by Professor Laurence Tribe.'13 Does the Constitution have
curvature where the shortest distance between two stimuli may not be arrived by traversing a straight line? Should we incorporate a different notion of the
Constitution itself? I am referring to the very nature of the Constitution itself here, as opposed to the interpretive technique of static versus dynamic. While static
constitutionalism is frozen in the eighteenth century meaning of the text and statutes, dynamic constitutionalism traces its meaning with the evolving context of
the current times. I have dissected this issue in greater detail in an earlier work. 114 F. Definitional difficulties in Euclidean Constitutional Geometry If the
constitutional space is thought to be composed of texts, statutes, supporting historical documents and jurisprudential opinions, then the confluence of events that
could potentially trigger the determination of an outcome may not always travel in a straight line. This is because the events or stimuli might be hidden relative to
another stimuli or event. This can be explained by referring back to the various scenarios depicted in Section IV. In the first scenario, all the information available
as the set of preconditions for going to war has responses that can be either constitutional or unconstitutional. Thus, the scenario can be properly handled within
the existing legal paradigm. In contrast, let us take a look at both scenarios 3 and 4. Scenario 3 brings in a rather undefined conception of presidential excesses, and
the legal reasoning yields an indeterminate solution to this particularized conflict. Similarly, scenario 4 presents the ideas of false consciousness and presidential
excesses, both of which are difficult to incorporate for yielding a legitimate legal consequence. Without actually engaging in the dialectic process of how false
consciousness lowers the probative value of imminent danger for application of presidential authority, it is clearly not feasible to engage in constitutional analysis
of the limits of presidential war power. However, if the process of legal reasoning does not get embroiled in the subjective discussion of executive excesses, the
existing paradigm remains impotent to determine the legitimacy of presidential action of imposing war. These two scenarios reveal situations in which the needed
information remains occluded from view. It appears there is an information barrier preventing it from coming within the purview of legal reasoning. This is
because the existing legal paradigm did not consider the information relevant for determination purposes, which would have required the legal reasoning process
to engage laws with the actual environment. Similarly, in the parallel invocation in the physical universe, Newtonian conception of space could occlude objects that
do not fall along the straight path between two objects." 5 On the contrary, in the curved space of Einsteinian framework, the objects could traverse the space along
the curvature. 116 As a result, any object, anywhere along the path between two other objects, can be both connected and viewed from any vantage point. In
addition, as the objects operate within a space-time continuum, 17 in which both the space and time move relative to each other, the exact location of each object
can be determined in relation to any other object. Similarly, in the legal paradigm of curved constitutional space, laws become part of the changing societal
structure and as such, are better equipped to deal with uncertainties of changing socio-legal environment. When complex reasoning structures, borne out of
diverging and continually expanding set of social circumstances, suffers from inadequacy from a static view of an indeterminate legal paradigm, while failing to
become subsumed within the limited set of legal reasoning available, they can easily find their legitimate place within the confines of this new legal paradigm. If we
take out the detached neutrality of Archimedean indeterminacy from the legal process, it becomes more efficient to handle particularized conflicts like the
preconditions for the Iraq War. Therefore, by shaping the legal reasoning process to mimic objects moving along the dimensions of a curved space, a much higher
determinacy can be rendered into the legal paradigm. If the development of constitutional jurisprudence were to follow such trajectory, it would be reasonable to
the required complexity cannot be captured within the current legal
reasoning methodology. How shall the explication of law proceed along the curvature space of the Constitution? This is a very difficult
infer that
proposition, not addressed here. However, presenting an analysis to illuminate further the shadowy areas of curved constitutional space may provide greater
recognition of the uniqueness of this paradigm. G. False Consciousness and Curvature of the Constitution I discussed in the preceding section, the organic way in
The sticking point is to
determine how the fundamental values within law allow such a scenario to
develop. If law is based on strict formalism, which is in turn based on a proven (or provable) collection of facts,11
how could there be an evolving fluid concept like false consciousness, which affects constitutional
decision making? The problem resides in our inability to look for what is not
there. This originates from a static conception of law, in which law is strictly prohibited from
enmeshing itself into the changing dynamics of the society. We must therefore look beyond existing laws,
and in some cases, we must go outside of law to understand law. The existing
formalistic paradigm of legal reasoning does not always comport to a legal
solution for complex, evolving problems we encounter in the society. As a result, the legal framework guiding the
courts, are unable to provide solutions based on adequate reasoning. In my view, a lack of reliance on interdisciplinary
application in law is one of the difficulties we currently have within the existing legal reasoning process. Distressed by the
which the false consciousness develops and allows the maximum point of authority for the President.
inability of existing laws to adequately respond in the particularized conflicts of today's complexity, I am thus compelled to support Professor Tribe's constitutional
curvature analogy119 in pleading for the recognition of an evolving paradigm. I have shown12° the drawbacks of Justice Jackson's tripartite solution elsewhere,
had the Constitution been of straightforward Newtonian
design. 1 Under this framework, the three discrete scenarios of Justice Jackson would
neatly fit within the conceptualized framework with its carefully balanced counter forces combating the forces, along the way providing
bullet proof checks and balances. Unfortunately, as I have shown, this is indeed not the case. If the constitutional space would
which would have worked perfectly
be a perfect three dimensional space of Euclidian geometry, we would witness literal reasoning based on strict explication of 'if-then-else' rules applied perfectly.
These rules would provide all the determinate outcomes and perfect solutions in all cases. In this construct, the background can be easily separable from the
objects that interlink with each other, exerting forces on each other. In other words, in a simple constitutional space, the actors on this space, the courts, legislators,
the executives, populist, and the external entities could all be liable to a rigid set of laws and be subjected to binding legal outcomes. However, as Professor Tribe
mentioned, in a curved space, the objects cannot be separated from the space. 22 The newer legal paradigm of curved constitutional space cannot separate the
subject of the law from the law itself. Here, the law must be continuously shaping, evolving, and structuring based on the existing circumstances. An obvious
question to consider at this point is, why did I bring in the concept of false consciousness along with the vision of constitutional curvature? The question can be
more efficiently addressed by responding by showing how false consciousness gives rise to curved space phenomenon. In the Newtonian world of linear geometric
space, ideas are arranged linearly with respect to each other, and objects travel along straight lines. Therefore, nothing can be hidden from view for determination
purposes. Similarly, in the parallel universe of legal reasoning, the law must be able to incorporate all pertinent information into the adjudication process. False
consciousness is a difficult concept, yet highly relevant to the issue at hand. On one hand, it is hidden from the conceptual construct that engages in the legal
reasoning of specific conflict in the existing paradigm. On the other hand, the curved space is composed of continually moving space and time, and every object can
easily be identified. False consciousness needs such a paradigm. It needs a process of determination, which can capture the incremental juridical information and
can contribute towards constitutional determination of legal conflicts. We can corroborate the difficulty in specific constitutional issues by taking a comparative
look at two opinions by two different Supreme Court Justices. In the first, Justice Jackson postulates a tripartite framework where he pigeonholes three
occurrences of fluctuating presidential power. Justice Rehnquist, on the other hand alludes to a continuous spectrum at some point in between the maximum and
minimum controlling powers of Congress, and it is at this point where the President's absolute authority could remain. This Rehnquist jurisprudential
development can be more closely recognized within a curved constitutional space. A space that is not bounded by the limitations of linearity of dimensions is
evident in Newtonian framework. If we refrain from identifying specific sets of actions under which the President can assert his power, we can map the possibilities
if the Constitution's objective is to create rules that can
be applied to a set of predictable scenarios, by virtue of trying to identify them, we have already
limited the possibilities. However, if we create a framework that is applicable under most scenarios, but may not be perfect fit for every
one of the scenarios, we can ensure that the framework is more robust and efficient. By incorporating the environment in
which the legal process unfolds, we can enhance the power of law in
providing specific legal outcome for a complex scenario. This is much the same way as in a curved
and scenarios more efficiently. For example,
space, the motion of an object is determined by taking into consideration the impact due to the space that surrounds the object. In my view, we could derive an
understanding of the allowable limits of presidential power by considering the shaping effect of the social environment in which the President is applying the laws
of the nation. Grasping this shaping effect becomes easier as it follows a similar reasoning like the mechanics of objects in a curved space that takes account of the
curvature the object has to traverse. Herein resides a very significant utility in bringing the curved space concept of physics into the legal universe. As I have shown
the prudent observer or the logical decision-maker can never be assumed to be completely
decoupled from the scenarios or circumstances being called to judge upon. I therefore, lend my
earlier,
fidelity to Professor Tribe's observation regarding curved constitutional space. Although highly primitive in construction at this stage, this mode of legal reasoning
promises to illuminate countless legal areas which still remain within constitutional black holes, unable to achieve legal certainty under the existing norm. I am not
suggesting that the current adjudication process itself is flawed. Rather, I am suggesting the possibility that the neutrality can never be achieved and therefore the
validity of the adjudicated process has to be questioned. How can we prove whether there is a constitutional curvature? In a curved space, the object being observed
can never be separated from the observer or the background. In other words, the relative distance or the relative mechanism of the space time continuum becomes
the driving factor for a determination of the any information for the object.123 Transferring this analogy in the legal universe, we can infer that the President's
process of adjudication of the events to determine if there is an imminent danger should not be taken at face value in determining whether the President's actions
are constitutional. The President's relationships to the events that are unfolding in the political arena have to be taken into account. The implicit assumption here is
that the President's own objective cannot be completely decoupled from the legal reasoning process. Therefore, legal reasoning must be decoupled from the
shaping effect stemming from a multitude of complex, fuzzy phenomena, such as, personal aspiration of the executive, and injection of false beliefs and monolithic
tendencies into the masses. What does false consciousness have to do with the shaping of the constitutional space or constitutional geometry? As I demonstrated
earlier, false consciousness is the culmination in a chain of events that creates a collective consciousness that gives an illusion of a real consciousness. So the
False
consciousness creates a distorted prism, and by definition, anything or any input that goes
through this distorted prism will provide a distorted output. Therefore, legal reasoning based on such distorted output
will provide us with a completely wrong legal output. Evidence uncovered from the days leading to the Iraq
War suggests that the President invoked significant danger by emphatically
underscoring a doomsday scenario. This injected an illusionary reality into the collective consciousness of the nation. As a
question that comes into focus is whether the false consciousness alters the geometry of the constitutional space and if it does, how does it do that?
result, the collective consciousness inherited factors that contributed to its distortion by the process discussed in Section III.124 Under these circumstances, the
collective consciousness of the nation transformed via the injection of a false consciousness: believing in the existence of significant immediate danger from
The President invoked his expansive power under Article II of the Constitution 12 6 and
imposed war on both the nation and the world by using an indifferent and inert Congress. 127 The linear
Iraq.125
geometry of the constitutional space made erroneous assumptions on several grounds. First, it assumed that the distance between the nation's observation of
imminent danger and the legal consequence of such imminent danger as engaging in war is connected by a simple straight line. If we take the analogy of a direct
deductive reasoning as a geometric straight line, the imminent danger of a nation must result in an invasion of the aggressor. Second, the legal reasoning assumed
that the President is a neutral adjudicator with detached neutrality in the proceedings, which turned out to be erroneous. 128 Third, this assumption that the legal
consequence of unleashing war on the aggressor will cause either a minimization or complete removal of the source of the imminent danger was not founded upon
provable facts. This limited set of fact patterns and legal reasoning within the constitutional analysis is therefore, proven to be completely inadequate for any
substantive determination of constitutional consequence. The assumption that the imminent danger doctrine must automatically give rise to the invasion of Iraq is
plain wrong. The constitutional geometry is not delineated and separable with easily identifiable objects and therefore, it may not be possible to reach directly into
There are alternative destinations that could be
attempted first. For example, is danger imminent as a result of false
consciousness? Or, are the assumptions that come into play to define and identify imminence
completely wrong? Second, false consciousness may have mischaracterized the
intensity of the threat and therefore may have misdiagnosed or mislabeled the imminent
danger aspect. If the characterization of imminent danger is not credible, then the conclusion of imposition of war cannot be validated. In a
constitutional space characterized by a curvature or multiple explaining
points that could lead to the genesis of a false belief of the imminent danger,
we are provided with multiple options like negotiating with Iraq, developing
consciousness of the world community, embargos, sanctions, negotiation vis-Avis a neutral third party, or simply waiting for more data. Third, once we are convinced that there is neutral detachment
an outcome of war from a source of imminent danger.
involved, then the rationale or action of the President is better characterized and analyzed in its proper light. Because it is possible that the President may not be
acting in the best interests of the nation or without due prudence or even with vengeance, it is easy to see the produced outcome of going to war may be untenable.
In my view, if we analyze events of extreme significance during the process of legal observation, we must consider that the factors taken into account for making
judgment may be misperceived due to false consciousness. Therefore, we must operate in a curvature space-type legal geometry. In this curved geometry of
constitutional space, the legal terrain will continue to reshape the inputs that the adjudicative process incorporates into decision-making. Additionally, the relative
relationship between the scenarios that are used to make judgment and adjudicate have to be analyzed carefully to deconstruct the relative merits and the
explanatory power that it possesses. If these factors are influenced by false consciousness, then I propose minimizing the explanatory power. This would result in a
presidential authority far lesser than the one which led the country into war with Iraq. VI. CONCLUSION In the wake of presidential transgressions related to use
Notwithstanding the
countless calamities that resulted from such misadventure, scholars diverge
on the legality of presidential usurpation of power. Constitutional uncertainty regarding the nature of concurrent
authority between Congress and the President, has been debated, yet nothing concrete has come out of
those discussions. My earlier research has thrown light on this narrow swath of constitutional significance, where I have established that the
debate over optimal allocation of power between Congress and the President is far from being over. I embark on an exploration to trace whether
there is a better legal paradigm that can explain the complex constitutional
quandaries in this area. In this article, I brought in the concept of false consciousness to provide a benchmark for examining how the issues of
of manufactured intelligence for foreign invasion, unilateral excesses of executive power has suddenly sprung to life.
presidential power cannot be determined with logical certainty within the current legal paradigm. This examination presents sufficient evidence to show that the
parallels from the world of physics can help us in this endeavor. By assuming the texts and statutes of the Constitution mimic the dynamic nature of time-space
theory of Einstein, rather than the Newtonian framework of linear space, we are able to capture the uncertainties and complexities better. On one hand, false
consciousness can distort the realities to eventually shape the contours of presidential power. On the other hand, the curvature concept of the Constitution provides
the inspiration for a powerful legal reasoning technique. Therefore, this Article's evidence of false consciousness' shaping effect provides us with a strong reminder
we should embrace post-modernity in our jurisprudential discourse, and
attempt to inculcate concepts, such as, the curved constitutional space. In the end,
my hope is to retain proximate fidelity to the Constitution, not by blindly
acquiescing to the indeterminacy of the controlling legal paradigm, but by seeking ways
to meld disciplines to illuminate the dark shadows of the constitutional
curvature.
that
Alt -- Discussion
The alternative is to engage in discussion with those societies found to
be threats. This dismantles the affirmative’s securitizing logic and
solves the aff
Grayson ’03 -- Senior Lecturer in International Politics at Newcastle University
(March, Kyle, York Consortium on International and Security Studies, “Democratic
Peace Theory as Practice: (Re)Reading the Significance of Liberal¶ Representations of
War and Peace,” Working Paper Number 22, 12-13, DWB)
It is of little wonder that Grand River is a forgotten site of struggle except in the Native¶ American/Canadian communities.
First, it
undermines the credibility of democratic peace theory by¶ illustrating
that at best the democratic peace is selective in its operation through
representational¶ practices that presuppose what political forms are ‘democratic’ and what assumptions
can be made about¶ them. Not only does democratic peace theory limit the types of states that can be
considered democratic,¶ but more importantly, it limits democratic characteristics those
political entities it recognizes as states.¶ At worst, Grand River clearly demonstrates
that liberal democracies can be aggressive even towards¶ other
democracies.72¶ Second, to give Grand River (and other similar historical circumstances) a voice in the
study and¶ practice of international relations would severely undercut our
perceptions of liberal democracies as¶ civilized, predisposed towards peace
in inter-democratic relations, and naturally reasonable, thereby¶ presenting clear
challenges to conventional thinking. Therefore, one of the roles of the critical¶ international relations
scholar should be to expose these injustices and the representational practices that¶ make them possible; it is quite likely
that there are many ‘Grand Rivers’ and each should be given a¶ voice. As Doty has argued, it is only
by revealing
contingent and unstable nature of the systems of¶ difference” and
exposing the “foundational essences as arbitrary constructions made
possible by the¶ power/knowledge nexus” that these kinds of practices can
be overcome.73 By simply being prepared to¶ actively listen to the ‘other’, to
engage in processes that will foster intersubjectivity, progressive¶
transformation both inside and outside the ‘self’ can be achieved.
“the
Alt – New Knowledge
Legal scholarship is dead. We must foster new modes of knowledge
production in order to maintain society.
Schlag ’09 -- Byron R White Prof of Law @ University of Colorado (Pierre, Legal
Studies Research Paper Series, “Spam Jurisprudence, Air Law, and the Rank Anxiety of
Nothing Happening (A Report on the State of the Art),” 97 Geo. L. J. 803 (2009), 804808, DWB)
You guys reeeeeaaaaaaaally . . . . And the reason that’s true is that American
legal scholarship today
is dead—totally dead, deader than at any time in the past thirty years. It is more
dead, vastly and exponentially more dead, than critical legal studies was ever dead during its most dead period.
Nothing’s happening. Now it’s true that we’re producing at a vastly faster rate than ever before. More papers.
More conferences. More panels. More symposia. More blogs. And faster and faster too. More and faster. Over seven
thousand American legal academics3 —and all of them cranking out those talks and papers as fast as possible. The
speed of legal scholarship is just off the charts right now. And yet, nothing’s
happening.4 How could this possibly be? The short answer is that, all around us, there is more, vastly more, of
nothing happening than ever before. Now, this might seem odd, but upon reflection, it’s not. In fact, not at all. Indeed, if
anything, the
accelerated culture of legal scholarship has positive feedback
effects on nothing happening:5 Who, after all, would have the time to notice the vacancy of the
enterprise? More to the point perhaps, who would be foolish enough to point it out? This would be me.6 Now, I do have
enough sense not to dwell on how absolutely terrific things were twenty years ago. (Which, by the way, in a relative sense,
they were.) Instead, I will dwell on how truly awful things are today. Could things be any different? On the one hand, I
want to say of the dominant paradigm of legal scholarship: It is what it
is—an institutionalized social
practice. And as such there is no particular reason to suppose that it should be any different from what it is (or is
becoming) simply because a few of us (many of us?) think it ought to be a whole lot more interesting or edifying or
politically salient or whatever. It’s
true that most of us generally think of law, or at least
legal thought, as the kind of social practice that is responsive to serious
intellectual critique and interrogation.7 Indeed, we tend to think of serious
intellectual critique and interrogation as integral to the social practice of
law and legal thought. But that’s just our representation of the thing. And if we think about it, there’s really
not much reason to believe it’s right. No one has yet adduced any convincing evidence or offered any compelling argument
to show that this representation is indeed true or often true or even true enough. Nor has anyone attempted to show how it
might be true if true it is (which quite likely, it’s not). What do I think about this representation? Simple: I
think
that the relation of serious intellectual endeavor to the practice of law or
legal thought is plural (many relations), contextual (in all sorts of ways), highly mutable (not
temporally constant), and arguably often antithetical (an interference). All of this, of course, would
make the relations of thought to practice radically indeterminate—not the sorts of things that can be known fully in
advance.8 From this radical indeterminacy though, one can draw an utterly unfounded hope (which I do). As an
unreconstructed optimist, I
can’t help but think that it would be so easy for at least
some legal academics to turn their backs on the dominant paradigm, strike
out on their own—alone or in small groups—and do something intellectually
edifying, politically admirable, or aesthetically enlivening.9 The way I see it, tenure is
forever, the discipline is weak, and there are no real sanctions for intellectual experimentation.10 And there have
to be some legal academics who are passionate and engaged— who are not
beaten down by the drone of legal discourse. People who have missed it—in the sense that they
came of age in some truly dreary political/ cultural moments.11 But who have not missed it in the sense that they are still
alive. They still have aura.12 Now, I’m not completely utopian, and I realize that this would not be a large group. But the
upshot is that being a legal academic can still be, if one makes it such, one of the last truly great jobs on earth13—a job
where one can actually decide what to think, what to write. All of this is to say that there
is no compelling
reason to simply emulate the reigning paradigms of legal scholarship. No
compelling reason at all.14 But I guess I’m afraid that many
people do follow the dominant
paradigm simply because . . . well, it’s the dominant paradigm. It’s what everybody
else is doing. I get the sense that for most people in the legal academy these days, there’s no elaborated conception of what
legal scholarship is supposed to be or do (or any such thing).15 And there isn’t much in the way of independent research
agenda—as in “I have things to say . . . and I’m going to say them.” The upshot is that legal
scholarship turns
out to be an exercise in imitation. Legal scholarship is whatever it is that
other legal academics do. And there is not much in the way of a critical appreciation of whether “what other
legal academics do” is of value or why or how. Instead, people in the academy simply presume
that legal scholarship (conceived here as what other legal academics do) has some redeeming
intellectual or moral or political value. As presently constituted, I’m not sure it does.
This, of course, brings up the thorny question: “compared to what?” Is it better for legal academics to follow the dominant
paradigm as opposed to . . . Doing nothing? Doing consulting? Doing journalism? Playing video games? My compared-towhat (for purposes of this essay) is an optimistic conviction that some (many?) legal
academics could do
scholarship in much more intellectually interesting or politically helpful or
aesthetically enlivening ways if they abandoned the reigning paradigm. I could
be flat out wrong about this: it may be, as I’ve suggested above, that the only thing we can say of legal scholarship is that it
is what it is. It may be that given the present circumstances in the legal academy, we are doing just about as well as can be
expected. It may even be that departing from the dominant paradigm is undesirable (things could get worse). In some
ways, they very likely will. But probably not in all ways and not necessarily for everyone. And so I write this essay. I am
going to be doing three things at once. (That means no three cleanly divided parts on this score.) One: I will be trying to
show that the
dominant paradigm is fundamentally uninteresting from an
intellectual, political, and aesthetic standpoint. Two: I will be trying to briefly sketch some of
the constitutive features that render this dominant paradigm (unavoidably) uninteresting. Three: I will be suggesting that
following the dominant paradigm is an existentially impoverished and
impoverishing thing to do. It’s not a life. It’s just a genre. And not a very good one. Now, as you can tell,
this is not subtle. It’s all aimed at providing motivation to abandon the dominant paradigm. That’s my rhetorical strategy
here. I’m hoping that, by the time you have finished this essay, you start to think that participating
in the
dominant paradigm is not really worthy of your time or effort or perhaps
even respect. I’m also hoping that you start to think about writing something else—something less life
impoverishing. Of course, I realize that I have no hope of convincing anyone, except maybe a very few people who are on
the margins, who are vaguely dissatisfied with legal scholarship and who sense that maybe it’s not what it’s cracked up to
be. The essay is aimed at those people who have begun to wonder—just what is the point? Not the grand cosmological
point of it all. But a more modest existential point—as in what is the point of doing legal scholarship? My answer? You
have to bring the point with you. Just as a lawyer needs to have a client in order to have a case, you need to bring
something to legal scholarship to make it worthwhile. Because, unless
you bring meaningful
existential commitments to the practice of legal scholarship, it will have no
point. Think of it as a genre. It has no more of a point (in fact quite possibly less of a point) than other genres—say, the
novel or the poem. Now it is claimed by aficionados of the dominant genre that
legal scholarship is aimed at the mastery or production of knowledge, the
elimination of error, the promotion of the good, and so on. But those are just
claims—representations. To my knowledge, no one has ever provided any convincing argument as to why participating
in the dominant form of legal scholarship is, in and of itself, a morally good, intellectually respectable, politically
admirable, aesthetically enlivening, or otherwise worthy thing to do with one’s life.16 No one.17 There are some people, of
course, who have said that it is part of the job description and therefore one is duty-bound to do it. But that’s just wrong:
Part of the job description (academic freedom and all that) is to be able to develop your
own scholarly agenda.
Alt – Refute Legality
The alternative is to refute the legality of the technocracized global
rule of law. A localized bottom-up-approach is key to free peoples
from the exploitative processes of neoliberalism.
Turin; **M.Sc. Candidate, International University College of Turin; LL.M. Candidate,
Harvard Law School (January, Marco and Ugo, Bocconi School of Law); (“GLOBAL LAW
& PLUNDER: THE DARK SIDE OF THE RULE OF LAW”, Ugo Mattei and Bocconi
Morpurgo, Bocconi School of Law Student- Edited Papers, 04/01/10,
http://works.bepress.com/cgi/viewcontent.cgi?article=1014&context=bocconi_legal_pa
pers, 06/24/15) JG
In the complex spectrum of global law, both throughout the era of colonialism and neo-liberal¶ US-led
Western
imperialism within a pattern of continuity, the rule of law, together with the ¶
theory of ‘lack’ and other powerful rhetorical arguments, has been used in
order to legitimize¶ political interventions and plunder in the ‘emerging’
economies. The sacred concept of rule of¶ law, whose positive connotations are ‘naturally’ assumed, has
been portrayed as the embodiment¶ of a professional and neutral technology,
thus being capable of substituting the lack of¶ democratic legitimacy of the institutions that are protagonist in the creation
of global law. But its¶ dark side has never been shown or discussed. An imperial rule of law is now a dominant layer¶ for
the worldwide legal systems. It is produced, in the interest of international capital, by a¶ variety of institutions, both public
and private, all sharing a gap in political legitimacy sometimes¶ referred to as ‘democratic deficit’.31 At the same time,
law has been constructively turned into a¶ technology and a mere component
of an economic system of capitalism, thus hiding its intrinsic¶ political
nature, and annulling the relevance of local political systems, now impotent in front
of¶ the dynamics of global law. The ‘dry technology’ of the rule of law penetrates
worldwide legal¶ systems without any political discussion at the local level,
attempting to create the conditions for¶ the development of market
economies, often without success, and causing serious consequences¶ for the
less powerful.¶ Under the technology of the rule of law, in its imperial
version capable of producing plunder,¶ the essence of the United States’ law
hides. In the aftermath of World War II, there was a¶ dramatic change in the pattern of Western legal development.
Leading legal ideas once produced¶ in continental Europe and exported through the colonized world are now, for the first
time,¶ produced in a common law jurisdiction: the United States. Clearly, the present world dominance¶ of the United
States has been economic, military and political first, and only recently legal, so¶ that a ready explanation of legal
hegemony can be found within a simple conception of law as a¶ product of the economy.32 Furthermore, US law has been
capable of expanding worldwide¶ thanks to its prestige, the high level of professionalization of its attorneys and a series of¶
procedural institutions, that benefit plaintiffs, that allow US courts to have a certain capacity to¶ attract jurisdiction, while
showing themselves as courts for universal justice.33¶ The general attitude of the United States has been a very
ethnocentric one, and precisely that¶ of showing itself as the guardian of a universal legality, which it is legitimized to
export through¶ 31 See Alfred Aman, The Democratic Deficit (New York University Press, New York 2006).¶ 32 See JM
Cohen (ed) and Karl Marx, Capital: a Critique of Political Economy (Penguin Classics, London 1992).¶ 33 There is a
fundamental structure of U.S. law that makes it better suited to the framework of the global market:¶ its high degree of
decentralization. This is possibly the most original aspect of the fundamental structure of U.S. law.¶ No other legal system
in the world has developed a full-fledged federal judicial system as complete and¶ sophisticated as the United States has.
The co-existence of a large number of federal and state courts made issues of¶ jurisdiction and choice of law the primary
concern of the American legal profession. These are the same issues that¶ are on the table of the lawyer approaching global
problems. American lawyers already enjoy a legal culture and¶ discourse that is broader than jurisdictional limits. In this
scenario, the annexing of one more jurisdiction, wherever¶ located, does not particularly change the U.S. lawyer’s way of
reasoning. The very structure of the American¶ judicial process, moreover, decentralizes power and activity. A large variety
of activities within litigation which are¶ labeled ‘official’ in European legal systems, such as service of process, discovery
and questioning of witnesses, are¶ already private matters in American law. This powerful combination of adaptive forces
makes the structure of¶ American law sufficiently familiar so as not to be excessively feared, yet sufficiently ambiguous to
be successful in¶ the international legal landscape. See U Mattei, A Theory of Imperial Law: A Study on U.S. Hegemony
and Latin¶ Resistance (2003) 10 Indiana Journal of Global Legal Studies 383; and (2003) Global Jurist Frontiers ¶
<http://works.bepress.com/ugo_mattei/1>. ¶ GLOBAL LAW & PLUNDER: THE DARK SIDE OF THE RULE OF LAW 19¶
LAST MODIFIED: 04/01/2010¶ its courts of law, scholarly production, military and political intervention, and through a
set of¶ US-centric international institutions. In recent times, in particular after September 11th 2001 and¶ the declaration
of the ‘war on terror’, the
US rule of law has come under attack34, so that once¶
admiring crowds of lawyers and intellectuals worldwide are now beginning
to look upon the¶ United States as an uncivilized old West from the
perspective of legal culture, despite the¶ professional prestige still enjoyed by the giant New York law
firms and by the US academy.¶ Notwithstanding, there has been no decline in the rhetoric of the rule of law when it comes
to¶ foreign relations. Bringing
democracy and the rule of law is still used as a
justification to keep¶ intruding in foreign affairs. The same can be said for
the international financial institutions and¶ their innumerable
‘development’ projects that come packaged with the prestigious wrapping of¶
the rule of law.¶ A rethinking of the very idea of global law is necessary and it
must derive from a revaluation¶ of the local dimension, which is currently
ignored by the neo-liberal model of development. The¶ production of global
law should change its direction, and follow a bottom-up approach, rather¶
than a top-down one, thus being sensitive to the local particularities and
complexities.¶ Western spectacular ideas of democracy and the rule of law
should be rethought. On this¶ planet, resources are scarce, but there would
be more than enough for all to live well. Nobody¶ would admire and respect someone who, at a
lunch buffet for seven, ate 90 percent of the food,¶ leaving the other guests to share an amount insufficient for one. In a
world history of capitalism¶ in which the rule of law has reproduced this
precise ‘buffet’ arrangement on the large scale,¶ admiring the instruments
used to secure such an unfair arrangement seems indeed paradoxical.¶
People have to be free to build their own economies.¶ There is nothing
inevitable about the present arrangements and their dominant and taken-forgranted¶
certainties. Indeed, it may be that the present legal and political hegemonies suffer from¶ lack: the lack of world culture
and of global political realism.
Alt – Rejection/Critique
We must challenge these hegemonic structures. Without questioning
the system it will never change.
Crawford ’02 – Professor of Political Science at Boston University (Neta,
Argument and Change in World Politics, p. 100-101, DWB)
Actors use ethical arguments when they try to change dominant nor¬mative beliefs and behaviors. Advocates
use
prescriptive normative beliefs in arguments to "normalize" and proclaim
the abnormal, to legitimize or delegitimize their actions and the actions of
others, and to influence the construction of interests and the sense of
possibility in decisionmaking. Challenging old normative beliefs and creating new normative-ethical
standards is more difficult, however, than maintaining old practices or applying dominant normative beliefs to new
situations. Advocates
of a new normative belief or new behavioral norm, even one
within the bounds of the dominant belief system, must persuade others that their position is
superior on ethical grounds, or that ethical grounds are outweighed by or, conversely, trump
other considerations. ¶ In the role of resisting doipinant (behavioral) norms or establishing new norms,
ethical arguments can be used to denormalize (that is fefamiliarize or make strange) the dominant norm. Ethical
arguments may also delegitimize a dominant norm, showing how it is wrong and ought to be questioned. If successful,
denormalization and delegitimization deconstruct the existing discourse.
Next, ethical arguments offer a reconstruction. Those making an ethical argument may pose
alternative prescriptions and suggest that an alternative order is conceivable, deniable, and possible, and this may have
the effect of changing actors' .nnceptions of their interest. And persuasive
ethical arguments may
help overturn the status quo as the powerful who uphold the dominant
norm can no longer convince others to abide by or impose the old norm. Even
hegemons must convince their henchmen that they must uphold an existing order or impose a new one. If they can't do
that, their politi¬cal support may wane. Finally, new normative beliefs, and the practices implied by holding such beliefs,
may be institutionalized. In sum, world politics is always already based on ethical argument. Note however that puments
do not necessarily proceed in the orderly way I have laid out: reconstruction
may precede and
indeed cause deconstruction and not all may be convinced at once, with significant
portions of the population coming to change their beliefs only after the
social world has been leoiganized.54¶ Widespread and traditional practices
are familiar and seem normal to the majority, and there is little reason to question those beliefs
and behavioral norms as long as they are considered normal and good. For such practices to be
changed, they must be questioned. Why were actors engaged in these particular practices? Why
believe one flung or engage in one particular behavior and not another? Unquestioned practices are
normal, while "normal" practices are unquestioned. Simply asking "why?"
may cause participants in a system to question dominant beliefs and
behaviors, while posing an alternative may also defamiliarize or denormalize
the dominant practice, making it seem strange. Symbolic arguments, especially,
analogies, are also often suc¬cessful strategies for denormalizing practices.
Beliefs and practices that are successfully denormalized will be seen as one of many possible op¬tions or may even seem
abnormal. Denormalization is thus actually a meta-argument, where what is at stake is the framing of a practice as ¶
normal or abnormal. The move to denormalize is successful to the ex¬tent that previously taken-for-granted practices are
no longer seen as givens. If
denormalization succeeds, the framing of a dominant
prac¬tice shifts from unquestionable and unproblematic to questionable
and problematic. Without denormalization, it is unlikely that delegitimation will be successful.¶
In critiquing legal systems, we must prioritize the organic over the
conjectural to revolutionize the system rather than just reforming it.
Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert,
paper presented at the Fourth Annual Conference of the Toronto Group for the Study of
International, Transnational and Comparative Law and the Towards a Radical
International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and
Tactics,
http://chicago.ssrn.com/delivery.php?ID=02409411300607909207009408308000810
20990740180370420591080920650040240011070880960741210601231190210981141
2208201009308410512702708007106400406500109111900908311005908706011902
2010094115119114091030115116030067069099083005124072124028119095091029&E
XT=pdf&TYPE=2, 06/26/15) JG
Journal of International Law (2009) 413-426; Robert Knox, ‘Review Essay: !e Degradation¶ of the International Legal
Order’, 18 Historical Materialism (2010) 193-207; Bill Bowring,¶ ‘Marx, Lenin and Pashukanis on Self-Determination:
Response to Robert Knox’, 19 Historical¶ Materialism (2011) 113-127; Umut Özsu, ‘!e Question of Form: Methodological
Notes on¶ Dialectics and International Law’, 23 Leiden Journal of International Law (2010) 687-707;¶ Akbar Rasulov, ‘!e
Nameless Rapture of the Struggle: Towards a Marxist Class-!eoretical¶ Approach to International Law’, 19 Finnish
Yearbook of International Law (2008) 243-294¶ and Susan Marks, ‘International Judicial Activism and the CommodityForm !eory of¶ International Law’, 18 European Journal of International Law (2007) 199-211.¶ Strategy and Tactics 197¶ 2.
!e Anatomy of a Distinction¶ 2.1. Politics as War¶ Although today strategy is perhaps seen as synonymous with the world of
business,¶ it has its origins in what we might call military science, and continues to¶ be a central term in the contemporary
military world. Indeed many of those¶ who used the terms ‘strategy’ or ‘tactics’ in describing politics were in"uenced¶
directly by these military theorists.8¶ Accordingly, before turning to the political¶ usage of the term, it is wise to begin
with how these military theorists have dealt¶ with these notions. Carl von Clausewitz, one of the most in"uential
exponents¶ of modern military theory, de#ned strategy as:¶ [T]he use of the engagement to attain the object of the war ...
It must therefore¶ give an aim to the whole military action. !is aim must be in accord with the¶ object of the war. In other
words, strategy develops the plan of the war, and to¶ the aforesaid aim links the series of acts which are to lead to it; that
¶
is, it plans the¶ separate campaigns and arranges the engagements to be fought in each of them.9¶ Strategy
is – in
essence – how it is that one would #ght and win a war:¶ connecting the various individual
battles together so as to achieve this broader¶ objective. In contradistinction
to this is tactics, which is concerned with smaller¶ and shorter term matters.
Tactics are concerned with how to win the individual¶ battles and engagements of
which the war is composed.10¶ If we wish to translate this metaphor into more general terms, we might say¶ that strategy
concerns the manner in which we achieve and eventually ful#l our¶ long term aims or objectives, whereas tactics concerns
the methods through¶ which we achieve our shorter term aims or objectives. !e obvious conclusion¶ 8. See Jacob W. Kipp,
‘Lenin and Clausewitz: !e Militarization of Marxism, 1914-1921’, 49¶ Military A#airs (1985) 184-191 and Sigmund
Neumann and Mark von Hagen, ‘Engels and¶ Marx on Revolution, War, and the Army in Society’, in Peter Paret (ed.),
Makers of Modern¶ Strategy from Machiavelli to the Nuclear Age (Princeton University Press, 1986) 262-280.¶ Equally,
many political actors were involved in armed struggles and so wrote directly on issues¶ of strategy and tactics: see Che
Guevara, Guerrilla Warfare (University of Nebraska Press, 1998)¶ and Mao Tse-tung, ‘Problems of Strategy in China’s
Revolutionary War’, in Selected Works of¶ Mao Tse-tung: Volume I (Foreign Languages Press: Peking, 1967) 179-254.¶ 9.
Karl von Clausewitz, War Politics and Power (Gateway Press: Chicago, 1965) at 171.¶ 10. Clausewitz’s de#nition here is not
taken as necessarily de#nitive but as both the classic¶ de#nition, and representative of how many have characterised
strategy, thus Montgomery¶ de#ned strategy as ‘the art of the conduct of war, tactics the art of #ghting’ (Field-Marshal¶
Montgomery of Alamein, A History of Warfare (Collis: London, 1968), see also B.H. Liddell¶ Hart, Strategy (Faber:
London, 1967) at 321, Mao Tse-tung ‘Problems of Strategy’ supra note¶ 8 at 183, and Guevara ‘Guerilla Warfare’ supra
note 8 at 14. !e Oxford English Dictionary¶ de#nes strategy as the ‘art of a commander-in-chief; the art of projecting and
directing the¶ larger military movements and operations of a campaign’ in distinction to tactics which is¶ ‘the art of
handling forces in battle or in the immediate presence of the enemy’.¶ 198 Finnish Yearbook of International Law (Vol. 21,
2010)¶ here, and one that will be important to bear in mind throughout this article, is¶ that when
we talk of
‘pragmatism’ or ‘e$ectiveness’ it need not be referring to¶ only the immediate
situation. As will be explored more fully below, any tactical¶ intervention will also have
strategic consequences. !is means that when thinking¶ about e$ectiveness, it
is necessary to understand the inherent relation between¶ strategy and
tactics.11 In so doing, the distinction allows us to consider how e$ective¶ particular
(seemingly ‘short term’) interventions might be in the longer term.¶ !e very obvious di%culty here
is that in practical terms it may be quite dif-¶ #cult to distinguish between the long term and the short term. !is is
particularly¶ true in the case of political interventions. More than this, however, temporality¶ does not quite capture the
distinction between a ‘battle’ and a ‘war’. Although¶ it is clear that there are temporal di$erences between the two, there
could be¶ innumerable examples of long battles or short wars. Instead, the
di$erence between¶ a battle and a
war (and therefore between tactics and strategy) seems to¶ turn on a structural
distinction, lying in the particular aims and objectives of the¶ di$erent types of engagement. Whilst the task of a
battle is generally simply to¶ defeat a given enemy militarily, the task of a war will be more complex, involving¶ the
disposition of forces, decisions about whether some battles should even¶ be fought (or whether some ought to simply be
lost) and complex political and¶ diplomatic aspects.12 Of course this di$erence in kind generally does correspond¶ to a
distinction between the long and the short term, but this does not represent¶ the ‘essence’ of the problem. As such, whilst
temporality remains an important¶ part of the distinction, it cannot be the sole factor underlying it.¶ 2.2. Organic and
Conjunctural¶ Accordingly, it is not the case that the particular way in which the distinction¶ operates in military terms
can be directly mapped onto the political and legal¶ sphere. !is is especially true given that war is – to quote Clausewitz
again – ‘the¶ continuation of policy by other means’13. Despite this, there is a common thread¶ running between military
and political theory on this subject, with political¶ thinkers sharing a similar understanding of strategy as operating in the
‘long¶ term’. In order to understand how this has been ‘translated’, it is useful to turn¶ 11. See Guevara ‘Guerilla Warfare’
supra note 8 at 18-19 and Mao Tse-tung ‘Problems of Strategy’¶ supra note 8 at 183-184, for the necessary relation
between strategy and tactics.¶ 12. Peter Paret, ‘Introduction’ in Paret ‘Makers of Modern Strategy’ supra note 8 at 3.¶ 13.
Clausewtiz ‘War, Politics and Power’ supra note 9 at 83. One might note here Foucault’s¶ inversion of this proposition,
where he argues that ‘politics is the continuation of war by¶ other means’, see Michel Foucault “Society Must be Defended”
Lectures at the Collège de France,¶ 1975-76 (Picador: New York, 2003). In this work he more generally develops a theory
as¶ to the central role of ‘war’ in structuring politics, and of the utility of concepts drawn from¶ military theory in
accounting for social phenomena.¶ Strategy and Tactics 199¶ to Antonio Gramsci’s distinction between organic and
conjunctural moments¶ and the type of ‘criticism’ that both entail:¶ [I]n studying a structure, it is necessary to distinguish
between organic movements¶ (relatively permanent) from movements which may be termed “conjunctural”¶ (and which
appear as occasional, immediate, almost accidental). Conjunctural¶ phenomena too depend
on
organic movements to be sure, but they do not have¶ any very far-reaching
historical signi#cance; they give rise to a political criticism¶ of a minor, day-to-day character, which has as its
subject top political leaders and¶ personalities with direct governmental responsibilities. Organic phenomena
on¶ the other hand give rise to socio-historical criticism, whose subject is
wider social¶ groupings – beyond the public #gures and beyond the top leaders.14¶ Gramsci
articulated this distinction – in part – in order to understand the logic¶ of strategic
and tactical interventions in the political sphere.15 In this account,¶ strategy is related to
organic phenomena, that is to say those relationships which¶ are relatively
permanent, and serve as the basic or fundamental structure of the¶ #eld in which the intervention is made. In
terms of Marxist political economy,¶ the prime example of such a
phenomenon would be the mode of production¶ (for instance feudalism or capitalism) and
the relations of production of which¶ it is composed. Strategic questions are
those that are addressed at critiquing and¶ overturning these relationships.¶
Accordingly, we might say that strategic interventions are ‘revolutionary’,16¶ inasmuch as
they address critiquing or abolishing the basic logic of the system.¶ Moreover, since
they address relationships that operate at a broader and less immediate¶ level than other struggles, strategic
decisions are likely to be informed in¶ a greater sense by ‘theory’ (hence Gramsci’s
reference to ‘socio-historic’ criticism)¶ as it becomes more important to understand and unpack the logic of the system.¶
However, these considerations remain ‘prudential’ or ‘pragmatic’ inasmuch as¶ 14. Antonio Gramsci, Selections from the
Prison Notebooks (Lawrence and Wishart: London, 2003)¶ at 177-178.¶ 15. ‘!is should be accompanied by the explanation
of what is meant in politics by strategy and¶ tactics, by strategic “plan”, by propaganda and agitation, by command
structure or science of¶ political organisation and administration’, ibid., at 176.¶ 16. In !e Lessons of October, Leon Trotsky
explicitly formulated the analogy in this way, arguing that:¶ ‘By tactics in politics we understand, using the analogy of
military science, the art of conducting¶ isolated operations. By strategy, we understand the art of conquest, i.e., the seizure
of power.’¶ Leon Trotsky, ‘!e Lessons of October’, <www.marxists.org/archive/trotsky/1924/lessons/index.¶ htm>
(visited). However, one need not think of revolution purely in its political sense here, one¶ could equally think of
revolution in the terms that Kuhn formulated it, as a ‘paradigm shift’¶ in a way of understanding the world, see !omas
Kuhn, !e Structure of Scienti"c Revolutions¶ (University of Chicago Press, 1996); for an attempt to apply this explicitly to
radical politics¶ and social science see David Harvey, ‘Revolutionary and Counter Revolutionary !eory in ¶ Geography and
the Problem of Ghetto Formation’, 4 Antipode (1972) 1-13.¶ 200 Finnish Yearbook of International Law (Vol. 21, 2010)¶
they aim at #nding the most e$ective methods to achieve a goal. !e di$erence¶ is simply that this goal is related to
structural or systemic issues.¶ By contrast tactics are concerned with conjunctural moments, that is to say¶ those which are
not structural in a direct sense. Tactics address those transitory¶ con"icts and battles that occur in the political sphere,
which could be a whole¶ range of di$erent issues: from an individual election, to a particular protest and so¶ on.
Consequently, there is a sense in which, in contrast to strategy, tactics
would¶ be more concerned
with ‘reform’ than with revolution,17 since tactics deals with¶ those occurrences which do not directly
call the system into question.¶ Of course, tactics and strategy do not exist in rigid isolation from each other.¶ !is is because
– as above – any given act which has to be reckoned with ‘tactically’¶ will at the same time make up the broader pattern of
engagements to which¶ strategy directs our attention. Equally, there are situations in which the very ‘dayto-day’¶ issues
may take on an immediately structural character, meaning tactical¶ decisions will be immediately strategic. However,
these ‘revolutionary’ situations¶ are in fact extremely rare, occurring only in extraordinary historical conjunctures.¶ For
the majority of time the distinction between strategy and tactics is a necessary¶ one because the critique of the basic
structural logic of the system is not identical¶ with every day struggles within it, and the critique of this structure is not
one¶ that has an immediate appeal to the majority of people.¶ !us, to go back to an earlier point, the distinction between
strategy and tactics¶ could be said to be a consequence of advancing a ‘revolutionary’ critique in nonrevolutionary¶ times.
!is is where the issue of temporality returns, for whilst the¶ distinction between strategy and tactics is a structural one, in
non-revolutionary¶ times it will almost always assume a temporal form. If the overturning of the social¶ structure is not
immediately on the cards, it must become a long term goal, whereas¶ conjunctural issues necessarily operate in the shorter
term. Since the strategy and¶ tactics distinction only makes sense in non-revolutionary times, it follows that it¶ will almost
always appear in a temporal form. To put it simply, we might say strategy¶ concerns #nding methods to achieve long term,
systemic aims, whereas tactics¶ concerns #nding methods to achieve short term, conjunctural aims.¶ 17. To some degree
this will be problematised below, in the exploration of how Marxists have¶ navigated debates around reform and
revolution, but it serves as a useful starting point. For¶ an exploration of the function of revolution in contemporary
international legal scholarship,¶ see Owen Taylor ‘Reclaiming Revolution’, unpublished paper, presented at the Eighth
Annual¶ Historical Materialism Conference, 2011.
Framework
Fiat Bad – Doing Law
Voting affirmative will never result in positive legal change, but it will
maintain the hegemony of the law—vote negative to strip the law of its
referent power
Kennedy 2003 (Duncan [Carter prof of general jurisprudence @ Harvard]; Pierre
Schlag's The Enchantment of Reason; 57 U. Miami L. Rev. 513; kdf)
So I think the strong claim is, at best, overstated with respect to people "doing law" in the sense of practicing, judging, or
doing doctrinal teaching or writing. But I think there is a lot to the strong claim if we are talking about Pierre's favorite
category: "virtually all American
legal thinkers." They, like Pierre himself, are "doing law" in a
are busily engaged with the metaphysics, a/k/a the
rationalization of the phenomena of freedom and constraint. [*536] As Pierre points
quite different sense than the first group. They
out, recognizing the phenomenon of boundness does nothing to set up a plausible metaphysics, a plausible account of how
and why law binds or to what it binds. The alternating experiences of boundness and freedom to make law set the terms of
the problem, rather than providing a solution, for those who wish it to be true that reason rules in law. To begin with,
"virtually all sophisticated American legal thinkers will deny that they 'believe in' the objectivist and subjectivist aesthetics
... they will often go so far as to say that no legal thinkers really believe these things nowadays." n84 It turns out, however,
that while in their intellectualist or theoretical moments [they] seek to reject the metaphysics of the objectivist and
subjectivist aesthetics, they will in their normative moment of "doing law" rush to bring this metaphysics back. They will
rush to bring it back for it is necessary to their normative celebration of law. n85 Or, they invent dodges or evasions that
allow them to affirm their disbelief in the metaphysics but have their cake as well as eating it. For the subjective aesthetic,
Pierre lists and rejects a series of supposed "new sources" that might substitute as bases for the authority of law once it is
disenchanted: "'the internal perspective,' 'careful craftsmanship,' 'good judgment,' 'the interpretive community,'
'Hercules,' 'conscience' (and so on). These are grand but nebulous entities." n86 According to Pierre, this kind of theory gets
content only by referring us back to the objectivist and subjectivist aesthetics. It is "necessarily parasitic on the
metaphysics that it denies. When the host dies, the parasite will wither as well." n87 Once again, both the simple
backsliding and the more elaborate reconstructive evasions of "virtually all American legal thinkers" are motivated errors-motivated selfishly and also by disinterested or existential concerns. The selfish motives are by now familiar: To
the
extent that "doing law" is an enterprise of legal advocacy, there is no payoff
in any public questioning of the fundamental artifacts that make this work
of legal advocacy and legal persuasion at once possible and seemingly
meaningful. And because virtually all American legal thinkers are committed (and understand themselves to [*537]
be committed) to law and its continuation, the questioning doesn't happen. n88 The legal academic, too, is
likely to slip into legal metaphysics... It is [the] desire for a discipline that leads them to endow law
with the structure, the continuity, the transcendence of metaphysics. Without the metaphysics, the
legal academics are just court watchers--journalists of case law. With the
metaphysics, by contrast, they are working on nothing less than The Law itself. n89 Once the Christian
cosmology is acknowledged to be a metaphysical illusion, God and all his
subordinates (including the pope) experience an immediate and radical status
demotion. Once the metaphysical illusion is gone, the pope's authority
dissipates as well... . The same thing goes for law. n90 The least attractive of the bad motives for
the errors of reconstructive jurisprudence, for Pierre, is the presumptuous "normativo" urge of law professors to
understand themselves as philosopher kings, or philosopher councilors just a step behind the throne. As Pierre is fond of
pointing out, the collective of "virtually all American legal theorists" suffers from something close to clinical delusions with
respect to the normative significance of these as of its other activities. Because their claims rest not on the humdrum legal
practitioner's techniques of argument through a mix of appeals to statutes, precedents, and policies, but rather on much
more abstract and elaborate metaphysical structures, they have a special interest in the viability of the metaphysical
enterprise, even if they disagree passionately among themselves as to which reconstruction is right. n91 The innocent
motive is the one set out in the very first chapter: it is anxiety that without the metaphysics there would be no basis for
believing in the rule of law. The consequence of taking seriously the critiques of the aesthetics is not that one can't do law
or that it loses all authority. But it might be that one has to rethink and possibly just abandon (walk away from) the liberal
political theoretical enterprise of reconciling the key concepts of popular sovereignty and individual rights through the
mediation of the rule of law. Loss of faith that the aesthetics can be rationally accounted for is potentially devastating to
the version of the rule of law in which judges play the role of apolitical referee in conflicts of right holders and in conflicts
between the popular sovereign and right holders. n92 [*538] Pierre shows no interest at all in responding to the anxiety of
the partisans of reason that the critique of legal rationality will undermine the rule of law. His attitude throughout the
book is that it is a symptom of the degradation of the legal academy that legal theorists seem to pick and choose what they
will believe in according to whether it would or wouldn't be a good thing for the belief in question to be true. n93 His main
preoccupation in the last part of the book, in the mode of the critic of culture, is with the boring, dreary, incurious,
shallow, presumptuous, decadent, rat-like, willfully blind, and so on, character of the legal self that operates, all the while
missing some essential part of itself, in the enchanted legal universe. At the same time, he returns gleefully, over and over
again, to the ways in which core rule of law values become vulnerable once we recognize the unreliability of reason. "In
order for law to exhibit its customarily desired virtues--neutrality, impersonality, efficacy, determinacy, and so on--the
two aesthetics are required." n94 One
can, as many contemporary legal thinkers, and actors do, strip the legal
artifacts of their mysterious subjective powers--powers to bind, justify, hold, trump (and so
on). But the cost of this demystification is to strip the legal ontology of its
subjective powers and to relocate those subjective powers in the agents or
agencies who invoke its names. The question then becomes: Who are these agents and what is the
source of their authority? n95 In the last chapter, one of his main themes is the freedom of the legal interpreter, whether
operating in the objectivist or subjectivist mind set. The main interest for him is the "emptiness" of the free legal self. But
he does point out that in each orientation there is a rule of law problem. In the objectivist orientation, the legal thinker or
actor becomes the master of the law or the legal artifact. Pushed to its limit, this becomes a problematic stance... . If [the
legal self] is radically free, then how is it to be restrained and constrained to follow the law? This problem of determining
what constrains and restrains the legal self--the problem of the errant judge and the lawless lawmaker--is one that has
occupied and perplexed American legal thought for many generations and remains, to this day, unresolved. ... . [*539] If
the legal thinker or actor "chooses" the subjectivist aesthetic, he or she
assumes a position of submission vis-a-vis the law or the legal artifacts... . This
is not an adequate stance or orientation either. The problem with this orientation is that it is not a true submission, but
rather a simulated submission. For the attitude here is of "choosing
to submit." And that, of course, entails
the possibility at any time of choosing not to submit. n96 What interests Pierre is that in
the face of this problem "virtually all American legal thinkers" choose to
deny, evade, waffle, or whatever. And that the price of these evasions is that they become boring, dreary, incurious,
shallow, presumptuous, decadent, rat-like, willfully blind, and so on. But it seems fair to ask what they would think and
what they would be like if they experienced disenchantment. Would they no longer be, as Pierre says they now are, "boring
party companions" n97? And how else might they be different? Pierre's critique of the legal self is that commitment to the
rule of reason has led it to deny that it is only tenuously continuous in space and time, that it is the product of history and
context, of factors like "class, ethnicity, age, sex, education," n98 and a "construction of aesthetics, of rhetoric, of narrative-in short of unexamined (and when one thinks about it, nonrational, perhaps even irrational) formations." n99
Disenchantment might lead legal thinkers to grapple more earnestly with
these aspects of their own contingency, though that hope strikes me as being
on the slim side. Pierre ends: "Reason is unstable. Law is not benign. This is not a great combination.
When reason runs out, but continues to rule, we get precisely what we see
all around us--the excessive construction of a pervasively shallow form of
life." n100
The affirmatives desire to be bound by external authority in the form
of law requires them to humanize law. This process of investing the
ideal qualities of human existence destroys the value to life for the
same reason as religion. Both require us to remove ourselves from
positions of agency and depend upon authority to give our lives
meaning
Schlag 1998 (Pierre [Byron White Prof of Constitutional law @ University of Colorado Law]; The Enchantment of
Reason; Duke U Press; p. 105-6; kdf)
Sometimes, the law is even invested with personality—as in the case of Justitia who holds the
scales of justice. One can, of course, dismiss Justitia as vulgar symbolism, buy to do so would miss a profound point.
The image of Justitia symbolizes, among other things, the humanization of law. Among
legal thinkers and actors, the law is humanized, much like God was (or is). And thus the law
comes to be treated as a real subject worthy , therefore, of respect and even adulation.
This virtual love of the law (the “jealous mistress”) reaches its apex among those elite legal scholars for whom law is an
important personal presence in their lives. Indeed,
in the writings of some elite legal scholars, one
can see an emotive, even at times sentimental, relation to the law— a desire to be bound by law . This
sublimation is not unlike the behavior of Catholic nuns who understand
themselves to be the brides of Jesus Christ. The investiture of subjective power in the law and legal
entities is, of course, very much akin to the investiture of subjective power in God and his word . The investiture
of subjective power in these legal entities—the inculcation of reverence and respect for “rules”
and “principles” of law—is thus very much a candidate for a Feuerbachian, Marxian,
or Nietzschean critique. The inculcation of belief in the subjective capacity
of legal principles, policies, rules, values, and rights is a kind of magical thinking. It may be that
kind of magical thinking that is widely shared (possibly a redeeming virtue), but it is magical nonetheless. As for the
extreme humanization of law among elite legal thinkers- “the spiritualist tendency”-one can say about their activity what
The more you invest in the law with the ideal
qualities of human existence, the more you devalue life as it is actually lived.
In a more Nietzschean vein, one might say that this desire to be “bound” by law
indicates a weak character- a renunciation of life, a kind of self-loathing. Having said all
this, it must nonetheless be recognized that the investment of subjective
power in law remains essential to the idea and belief in American law. The
subjectivist aesthetic remains a necessary aspect of American law. To strip American law and the
legal artifacts of their subjectivist powers would leave them inert, without
authority. They would lose their ability to command assent and to inspire
respect.
Karl Marx said about religion generally:
Faith in law is an obsession that sanitizes history which prevents us
from viewing other possibilities for understanding. This fixation
functions as a pathological asymmetry in which the law is presumed
to be governed by reason
Schlag 1998 (Pierre [Byron White Prof of Constitutional law @ University of Colorado
Law]; The Enchantment of Reason; Duke U Press; p. 117-9 ; kdf)
Leal thinkers and actors strive to put reason and rationality behind every act of law
(unless, of course, they are against it). In this habit, there are at least two aspects that are pathological. First, there is
the positing of a fantasy subject, a mindful source, an intention, a purpose behind the
legal act when it is quite possible that there was no such mindful agency·
Second' in the fantasy construction on a mindful agency, there is the
displacement and eclipse of the historical subject through repeated acts of
substitution. Hence, the historical subject James Madison is supplanted by an idealized fantasy subject James
Madison, "the framer of the United States Constitution." Similarly, historical accounts of legislative
deliberation are supplanted with stylized, often sanitized fantasy histories
known as congressional hearing reports. The law wants mindful agencies behind legal acts ,
but it wants mindful agencies whose identities are far more ideal and far
more trustworthy than those of historical subjects. The latter are often jurisprudentially
unreliable. This largely unacknowledged asymmetry leads to a pathological systemic preference for law-a systemic
preference for more law, whenever possible. The implicit presumption is: law = good. More
law=more good. This pathological presumption for law, for more law, is
ensconced throughout the legal system-in the law-legitimating rhetoric of
legislatures, courts, and law schools. Hence it is that even in scholarly journals, American legal
academics spend most of their prose imitating the poses, the idioms, the concerns, and sometimes the Imperious tones of
presiding judges. One gets the sense that when legal academics close their
scholarly works with ''And therefore, the Court should . . :' what they would
really like to say is "It is so ordered. Reversed and remanded for disposition in accordance with this
law review article:' Legal academics, as they see things, are on the side of the law (and "law" is, presumptively, a good
thing). The dominant supposition among legal academics is that law review
scholarship ought to provide solutions (read: legal solutions); it ought to be
constructive (read: prescribe more law); and it ought to deal with concrete legal
problems (read: address the world in the terms and categories constructed by the official legal apparatus). There
is a second sense in which the self-rationalizing tendencies of American law
are arguably pathological. The problem is this: At what point does the rationalization stop-at what
point does or should law stop positing reasons for this or that law? At what point
does or should law stop positing into existence the kind of conditions or the kind of relations that will render a law
reasoned? This is not a hypothetical problem. With the promiscuity of functionalism, the permissiveness of means-ends
analysis, and the multiplicity of plausible ends and intentions, it is possible to justify just about anything as reasoned or
rational. What we have in American law at present is an embarrassment of plausible reasons for anything. The question is
at what point, and on the basis of what criteria, does or should American law stop making sense of law or laws? What does
or should trigger the tipping point? At what point does or should the Supreme Court abandon efforts to link a law to
legitimate ends and concede that the law is simply a product of power politics or legislative ineptitude? At what point
should a court abandon the dictates of stare decisis and concede that the social conditions upon which an old precedent
were based no longer exist? At what point should a court decide that some principled "interpretation" of a statute, while
salutary, can nonetheless not be squared with its meaning, plain or otherwise? These are questions to which American law
offers no satisfactory certainly no rational- answer. Instead, legal thinkers and actors offer
responses such as "These are difficult questions that require good
judgment." Or in a slightly hipper, though no more cogent idiom, "It's contextual- these are questions that can only
be answered in context." But given the nature of the question and the stakes, these are feeble answers. For the
question is not whether something enables legal thinkers and actors to come
to a resolution in any particular case. Rather the question is what is it that
enables resolution to be reached? Pretending that it is reason is not
obviously rational. The fact that it is all too easy to "give reasons" that sound plausible makes this a difficult
problem. It simply is not the case that an examination of American law can yield articulate criteria by which to delineate
the break point-the point at which law will cease to rationalize itself. What we have, in sum, then, is a
pathological asymmetry in favor of more law and an absence of restraint on
this rationalization process. If we think about it, American law rarely steps outside
the rationalization process. American law students and law teachers study cases-by which they mean that
they study appellate opinions. Appellate opinions, as others have suggested, are a kind of extended brag sheet through
which the judge gets to report on how well he or she did his or her job. Scholarly commentary, in turn, is a second-order
rationalization: the legal scholar is a person who takes the judges' rationalizations and attempts to take them the best they
can be"--' in short, to rationalize the rationalizations further.4l "Legal theory:' in turn, consists largely of justifying the
activity described in the previous sentence. The result is that American law represents itself, on the
whole, as
an essentially reasoned enterprise-even though its rationality (if any)
remains on the whole unexamined. This effort of legal thinkers and actors to
describe the law's identities and actions in reasoned terms is itself largely
pathological . It is arguably pathological because it was already presumes that the objects it encounters are
themselves rational. Sometimes the reason of the law is even absurdly comical -as when
the law claims that it is reasoned and rational because it requires itself to be so. Hence, for instance, the authors of the
famous (or infamous) "Legal Process Materials" once advanced the view that in interpreting statutes, courts should
construe them reasonably by presuming that they have been drafted by reasonable men acting reasonably.42 One could
~and certainly some have-found in such directives evidence of law's eminent reasonableness. On the other hand, one
could also find here evidence of something altogether different.
Their desire to be bound by law leads to an uncritical acceptance of
authoritarianism justifying the worse abuses of authority because we
seek to please authority by carrying out their commands
Henderson 1991 (Lynne [Prof of Law @ Indiana University School of Law]; 66 Ind. L.J.
379; Lexis; kdf)
The argument for uncritical acceptance
of authority can quickly lead to more severe
forms of authoritarianism. As soon as uncritical acceptance of and obedience to authority become the
norm, the accepted authority has the power to oppress, to punish, to repress
and to dominate. For example, the well-known Milgram studies provide a chilling example of authority's power to
command obedient persons to inflict pain on others in order to punish them. 71 Arendt sought to preserve the value of
obedience to authority by distinguishing authoritarianism from totalitarianism, but even authoritarianism in her formal
sense -- obeying
because the authority is accepted by tradition and practice -can quickly become authoritarianism in a substantive, negative sense. While
her distinction between totalitarian and authoritarian illustrates a point on
a continuum that ranges from benign or humanistic authority to gulags or
death camps, unfortunately the distinction has deflected attention from
description and analysis of repressive regimes that are not totalitarian, that is,
completely dominant over their citizenry. 72 For example, the United States government used
Arendt's distinction to legitimate a difference in policies toward brutal right-wing
regimes and those on the left, thereby muddying the point that some authoritarian
governments are more repressive in more ways than others, whether they are rightwing dictatorships such as the Pinochet regime in Chile, or communist dictatorships such as the Romanian regime of
Ceausecu. 73
FW – Law is language
The failure of law lies in language – justice lies above, unattainable by
the endless signifiers that make up discourse and as such will never
be achieved by legal structures
Carlson 99 – Professor of law @ Yeshiva University (November 1999, David G, Columbia law
review, “Duellism in Modern American Jurisprudence”, vol. 99, no. 7) “LJH”
Schlag excoriates legal practice for its want of a "robust referent," but never quite defines what he
means by this. What would count as a "robust referent"? We can only infer his meaning by
studying what he thinks law is not. Thus, we learn from Schlag that natural things have robust
referents.27 Hence, one may infer that the absent robust referent is some "natural" thing beyond
language.28 Law cannot signify the thing-beyond-language. This is a good
Lacanian insight.29 But does this fault differentiate law from any other
linguistic practice that we might identify? Is law different from politics or
mathematics or geology?30 No. These practices likewise do nothing but refer to other
signifiers in the same infinite regress that law does.31 One must conclude that law is not
and never was the culprit. Language is.32 If language always reduces to a
chain of signifiers without end, why single law out for abuse? Because law
promises justice. Justice is law's Master Signifier, its "exceptional
element."33 Yet just because justice is exceptional, law cannot deliver it.34
The inability of law to deliver what it promises can best be appreciated in the context of Lacanian
theory. According to Lacan, the human subject is angry at language itself. This anger is inscribed
in a false autobiography,35 according to which there once was a time in which the human subject
felt no pain or desire; but something bad intervened to harm, maim or reduce our integrity. This
story has been told a thousand times in myth, in the doctrine of Original Sin, in romantic
nostalgia, in conservative or radical politics, even in Hegelian philosophy, where the human
subject is portrayed as the diremption of Spirit into the world.36 In Lacanian theory, a subject
who enters the symbolic realm of language can speak words recognized by other subjects who can
speak back. The very idea of speaking presupposes some other subject who can
listen and understand. Hence, our ability to differentiate (and thus identify)
ourselves in language can only be bestowed on us by other speaking
subjects. On this dialectical view of human subjectivity, we are, by
definition, not whole not entirely present to ourselves.37 A basic part of
ourselves is beyond us. We are alienated in language.38 We suffer from "beingforother."39 From this basic position of depending on linguistic material for self-identification,
we are not, and cannot be, happy consciousnesses. By entering the symbolic realm, we
feel "castrated." Castration, in Lacanian terms, is "the understanding that we only exist as
subjects within law and language, yet law and language are external to, and imposed on, our
subjectivity."40 Castration refers to "the subject's alienation by and in the
Other and separation from the Other." The castrated subject thus
experiences a split between its symbolic existence (being-for-other) and that
part of the self that language fails to express (being-for-self). Indeed, selfconsciousness is nothing but the experience of a scissiparous intervention?a gap between the
phenomenal and noumenal worlds. It is not merely that the Lacanian subject has a split as one of
its characteristics. Rather, "[t]he subject is nothing but this very split."42 The subject is, if you
will, the very absence of a robust referent that might underwrite linguistic practice.43 According
to Lacan, this submission to the realm of the symbolic is experienced as a kind of failed bargain.
The subject supposes that he was forced to give up the primeval unity with otherness when he
submitted to the symbolic realm.44 The subject constantly wants to go back to a state of
wholeness,45 yet the symbolic realm seems to forbid this (impossible) retreat into "jouissance."46
The subject has submitted to the painful discipline of the symbolic the "universal initiation rite of
subjectivity."47 The pain experienced is precisely the sense that jouissance has been lost.
Accordingly, the subject feels that the symbolic realm owes restitution.48 This thing allegedly
being wrongly withheld, this missing part, Lacan calls the phallus that which would render whole
the castrated subject.49 This metaphor comes from the conceit that a man "has" the phallus. That
is, a man is complete and whole, and his phallus is evidence of it.50 But man of necessity does not
have the phallus. The subject is by his very constitution castrated an
"emasculate conception." Returning to Schlag's brief against law, Schlag is angry at law
(i.e., language). In particular, law does not deliver a robust referent a signified.
Justice is what law signifies. Justice is the robust referent the phallus. If law
committed a primordial crime on the subject by castrating him, the subject
demands justice the restitution of the missing parts. The phallus purports to
be a "signified." But there is no signified as such; only the mere vacant place
where the signified should be. When called upon to define the signified, we
can only fill the air with additional signifiers about it. This, as Schlag
correctly emphasizes, is all the practice of law reduces to. The phallus,
however, is precisely what is beyond all these signifiers. It cannot be
reduced to propositional form. For this very reason, justice is quite opaque
to general definition. Being a phallic trope, justice never has been and never
will be defined. Any definition of justice could only occur by use of
signifiers, yet justice is precisely what is beyond signification.51 So
conceived, it is clear that justice must always fail.52
Answers
AT: Law is Equal
Differences in legal defense account for legal injustice – right set up
by the system can’t be sustained.
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 67), “LJH”
Warren McCleskey’s legal fate was shaped in large part by the state-appointed
defense counsel assigned to his case, for in the procedurally complex, adversarial American
justice system, lawyers bear primary responsibility for challenging the evidence and violations of
the defendant’s legal rights. In the postconviction stage, McCleskey’s lawyers were extraordinarily
persistent. But at the crucial initial stages of many cases, and at trial,
overworked public defenders or poorly compensated state-appointed
defense counsel sometimes do not mount an aggressive investigation and
defense, even in capital cases, and are compelled to do even less in routine felonies.11
Prosecutors too are often inexperienced or overloaded. Therefore, to a far greater degree than in
most democratic nations’ criminal justice systems, outcomes in the United States are
shaped by the shifting and often unequal balance of competence,
commitment, and resources between prosecuting attorneys on one side and
defense lawyers on the other. Adversarial legalism is good for establishing rights to
challenge police and prosecutorial procedures, but it is a weak mechanism for ensuring
that governmentally supported defense and prosecutorial offices will be
supported at levels that guarantee energetic and competent assertion of
those rights (Stuntz, 1997). McCleskey v. Zant, the second Supreme Court opinion in
McCleskey’s case, was a judicial “boy who cried wolf’ response to adversarial legalism in capital
cases. Reacting against sequential appeals and midnight requests for stays of execution,12 a
politically conservative Supreme Court majority began in the 1990s to impose limits on appeals
and habeas corpus petitions, reversing liberal precedents established not many years earlier. In
1996 Congress limited the ability of state prisoners to file more than one habeas corpus petition in
federal courts,13 and in 1998 eliminated funding for defense lawyers to help defendants in capital
cases pursue federal appeals. In recent years the courts have sometimes rejected appeals by
defendants who belatedly turn up evidence pointing toward their innocence—even though there
are “wrongful conviction” needles to be found in the haystack of capital case litigation.14
Adversarial legalism takes a heavy toll on civil cases – encourages
settlement even in cases of guilt
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 118), “LJH”
By making litigation and adjudication slow, very costly, and unpredictable, adversarial
legalism often transforms the civil justice system into an engine of injustice,
compelling litigants to abandon just claims and defenses. Dixie Flag
Manufacturing Company, a firm in San Antonio, Texas, with sixty-three employees, makes and
sells American flags. In 1991 Dixie Flag was sued by a person who had seen some men lowering a
large flag in a parking lot, and then volunteered to help so that the flag would not touch the
ground. As the volunteer grasped the flag, according to his subsequent legal complaint, a gust of
wind billowed the massive banner high into the air. The plaintiff, apparently more patriotic than
he was quick-witted, failed to let go, and the flag pulled him high off the ground. Then he let go.
He crashed to the ground and was injured. His patriotism now tempered by avarice, he sued Dixie
Flag for compensatory damages. The company’s president spent considerable time combing old
company records but could find no evidence that his company had even made that particular flag.
Nevertheless, Dixie Flag’s liability insurance carrier paid the plaintiff $6,000 to settle the suit,
much to its client’s outrage. The insurers explained that it would have cost $10,000 in attorneys’
fees to prevail in court (Van de Putte, 1995: A14).19 The Dixie Flag settlement is far from unique.
In a 1992 survey of 234 municipal government attorneys, “over 80%
acknowledge that on occasion they settle cases that would be winnable . . .
just to save money in the short term” (McManus, 1993: 835). Conversely, the costs and
unpredictability of adversarial legalism induce potential plaintiffs to back away from asking the
courts to vindicate entirely just legal claims when they are met with question- able but cost)) to
rebut legal defenses. California collection agencies, the president of their trade association
estimated, take no more than 20 percent of their debt default cases to court, largely because of
litigation expenses, complexities, and delays (Kagan, 1984: 338). Charles Ruhlin found that a
major multinational bank with credit card operations in the United States and Germany is more
reluctant to sue delinquent debtors in the United States because German courts deal with
collection cases far more efficiently and reliably (Ruhlin, 2000). The bank ends up writing off a
significantly larger proportion of unpaid debt here than it does in Germany.
Guilty pleas turn the legal system into a political game – destroys any
value it may have had
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 86), “LJH”
The risk that innocent (or legally acquittable) defendants will be coerced into
pleading guilty has been intensified, many observers assert, by the enactment of “sentence enhancement” statutes, which mandate extremely long
prison terms for offenses involving certain circumstances, such as use of a
firearm or conviction for a third felony. These statutes raise the stakes for defendants.
Consequently, they are more inclined to insist on trial, which threatens to overwhelm both the
courts and the prosecutors’ offices.11 But the huge penalties also enable prosecutors to avoid trial
by offering not to charge the aggravating circumstance (thereby offering an enormous reduction
in the prison term) if the defendant will plead guilty to a lesser offense (Lowenthal, 1993: 80).12
For an alleged burglar with a prior record, faced with life imprisonment if convicted, the
prosecutor’s offer can be very hard to refuse—even if the defendant is inclined to contest the
charge. Plea bargaining is troubling on other grounds as well: for the guilty , it transforms the
act of confession from a ritual of moral and social healing into a cynical
game, reinforcing the criminal’s alienated view of society (Casper 1972: 80-81).
American prosecutors, unlike their European counterparts, can freely reduce charges at any time;
hence in a regime of plea bargaining, prosecutors have a strong incentive to inflate and multiply
the initial charges to fortify their bargaining position (Frase, 1990: 621; Alschuler, 1983: 939).13
Even if many ethically committed prosecutors resist this temptation, not all of them do. In any
event, actual control over sentencing shifts from judges to prosecutors because they control the
ultimate charge. Yet in the United States, in contrast to Western Europe and Japan ,
prosecutors receive little formal training in sentencing theory; often they
decide the fates of defendants rapidly and intuitively, without obligatory
coordinating guidelines and without any institutionalized requirement to
explain and compare their decisions in a reviewable manner (Lynch, 1994: 125126).14 American also spend less time and effort than Japanese prosecutors, for example, probing
the facts of each case and assessing the proper legal disposition. Consequently, David Johnson
(1998) concluded, outcomes for similar offenses and offenders in the United States are far less
uniform—and in that sense, less just—than in Japan. Also, even more than at trial, where at least
there is a supervising judge, in a regime of plea bargaining defendants’ fates are deeply affected by
differences in bargaining skills among attorneys (Lynch, 1994: 130-131). Ironically, then, the rules
and structures of adversarial legalism, because they generate such a cumbersome and costly mode
of dispute resolution, produce too little adversarial legalism in practice—a pattern that recurs in
many areas of American law.
American legalism unfairly benefits the rich – poor people can’t
afford adequate legal defense
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 121-123), “LJH”
Adversary theory suggests that the detrimental effects of manipulative lawyering will even out as
each side’s lawyers fight fire with fire. But that faith seems justified, at best, only
when both sides can afford and are willing to engage in a full-scale firefight.
That type of strict equality of wealth and motivation seems unlikely in most
cases. Under adversarial legalism, where privately hired lawyers perform
the demanding tasks of interviewing and cross-examining witnesses,
devising litigation tactics, and conducting trials, it is quite likely that these
tasks will not be performed adequately and equally for all1 parties (Johnson
and Drew, 1978). Great Britain strives to even out the quality of advocacy by limiting trial practice
to a specialized corps of barristers whose links to particular clients are attenuated and who are
constrained by ' strong legal constraints on overzealous action. Atiyah and Summers (1987: 162163) observe, “There are . . . cases in the American courts in which the opposing lawyers are
strikingly mismatched. . . . Such gross mismatches rarely occur in England.” In a lawyerdominated litigation system even small differences in opposing counsel can make a big difference.
Gerald Williams (1983: 7) divided forty Iowa lawyers into pairs, gave them identical case files
(and photocopies of comparable jury awards from the Des Moines area), and asked them to negotiate a settlement. Among the fourteen pairs who completed the exercise and were willing to
submit a signed statement of results, settlements ranged from $15,000 to $95,000, and none
were within 20 percent, plus or minus, of the I average settlement. And when Robert Condlin
(1985: 66) examined tran- I scripts of arguments by 100 teams of law students in a simulated
lawsuit negotiation, he concluded that negotiators’ experience, preparation, and intellectual
abilities, “along with tolerance for conflict, stamina, ruthlessness, oratorical skill and emotional
force, play as large a role in determining the extent to which norms are invoked and elaborated as
do qualities inherent in the norms themselves.”27 Unequal legal representation in the
United States does not occur ran- I domly, of course. Rich litigants generally
can hire better lawyers than opponents who are not rich, and they can buy
the services of consultants to help them choose a favorable jury and test out
arguments before mock juries (Alschuler, 1998: 410^111; Adler, 1994). In
Marc Galanter’s (1974) well- known formulation, “repeat players,” on
average, get better lawyering than i inexperienced “one-shotters.” The
repeat players do better at the difficult job of shopping for lawyers,
marshaling evidence, producing supportive witnesses, and preparing the
contracts and record-keeping systems that will Strengthen their legal
position (Galanter, 1974; Cooney, 1994). Even if parties can afford equal lawyering, their
capacity to endure the lengthy, frustrating process of litigation often varies. In a study of divorce
cases in Wisconsin the authors concluded that “instead of reflecting the parties’ interests, settlements most typically reflect the parties’ relative stamina and vulnerability to the pressures of a
prolonged dispute” (Erlanger et al. 1987: 592). In a more hierarchical, judge-dominated civil
litigation system, these differences in the capacity of parties probably matter to some degree but
almost certainly not as much as they do in the United States. l Perhaps the saddest inequality
imposed by adversarial legalism, however, j afflicts those who must acquiesce in violations of their
legal rights because thecost of civil litigation exceeds the monetary value of their losses. For losses
under $1,500 or so (depending on state law), American claimants can pursue their legal rights in
small claims courts, where the trappings of adversarial legalism (juries, lawyers, pretrial
discovery) are banned—and hence justice is affordable. For tort cases, if the claimant’s damages
are large enough to make it worth his time, a lawyer might be found to take a small-stakes case on
a contingency fee basis, that is, in return for a third of the winnings. But for countless moderatestakes commercial, contract, or property disputes, the court system is simply out of reach—not
only because adversarial legalism is expensive but because under the “American rule,” even if a
court upholds your claim, you, and not the guy whose legally unfounded defense forced you to
trial, must pay your lawyer’s fees. The best that can be done is to find a lawyer who will see what
can be accomplished by means of a threatening demand letter or telephone call (Macaulay, 1979).
The “loser pays” rules that prevail in England and in Europe are criticized for deterring justifiable
lawsuits by risk-averse disputants who cannot afford even a small possibility of losing and having
to pay the other side’s legal fees. It seems likely, however, that those kinds of injustices, however
troublesome, are not as large and pervasive as the injustices that stem from the American rule.
AT: Law key to understanding
Law has lost touch with everyday experience in favor of monopolizing
discourse
Silbey and Ewick 03- (Susan [Prof @ MIT] and Patricia [Associate Prof @ Clark U]; SYMPOSIUM: (BEYOND
RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY, AND THE ENCHANTMENT OF
REASON: The Double Life of Reason and Law; 57 U. Miami L. Rev. 497; kdf; 06/29/15) JG
... To some aficionados, jazz performance is appreciated for its undeliberated, direct expression¶ of musical discipline and
emotion. ... Even those few social transactions that become formal¶ cases--cases that are sifted and winnowed, shaped and
pushed, into the form of trials and appeals¶ and thus to the top of the pyramid--are a product of informal considerations as
well as anything¶ our central command or big tent conceptions would recognize as legal rationality. ... We are¶ claiming
that law
colonizes much of American life but that the ways in which law
suffuses¶ contemporary life are not subsumed within the conception of
enchanted rationality. ... Using this¶ conception of legality as it is experienced and deployed in everyday life,
we conducted lengthy¶ interviews, each of which lasted several hours, with over 400 people in a random sample of¶
residents in four counties of New Jersey from 1990-1993. ... Together, the first two stories of law¶ constitute legality as
both ideal and practice. ... We
are suggesting that a parallel but opposite¶ effect must
also be achieved for legality to become and remain an enduring social form-to be¶ both logic and experience--to have its improvisational life, as jazz, and thus to exercise the¶ power that so troubles
Schlag. ...¶ TEXT:¶ [*497]¶ Introduction¶ To some aficionados, jazz performance is appreciated for its undeliberated, direct
expression of¶ musical discipline and emotion. The jazz musician offers very personal ideas and emotions while¶ drawing
on shared resources, collective values, and heightened empathy. In constructing this¶ amalgam, jazz is distinguished by its
spontaneous invention, "erasures or changes are ¶ impossible." n1 Thus, for example, the now classical rendition of Miles
Davis's signature tune,¶ So What, was memorialized on the recording, Kind of Blue, as it was invented and played for the¶
very first time. n2 In this fusion of musical theory, personality, and community, the improvising¶ jazz musician practices a
very particular discipline that simultaneously constrains the form of¶ expression but nonetheless encourages an "idea to
express itself ... in such a direct way that¶ deliberation cannot interfere ... ." n3¶ Of course, group improvisation creates
special challenges. Aside from the weighty technical¶ problem of producing simultaneously and spontaneously "collective
coherent thinking, there is¶ the very human, even social need for sympathy from all members to bend for the common
result¶ ... . As the painter needs his framework of [canvas, brush, and paint], the improving musical¶ group needs its
framework in time." n4 Davis provided the framework for this improvisation¶ only hours before the recording sessions
that produced Kind of Blue, arriving at the studio with¶ only sketches of what the group would play. n5 Thus,
approximately nine and a half minutes of¶ So What are developed from a simple structure of "sixteen measures of one
scale, eight of¶ another and eight more [*498] of the first, following a piano and bass introduction in free¶ rhythmic style."
n6 Davis's sketches "are exquisite in their simplicity and yet contain all that is¶ necessary to stimulate performance" by
each player of his particular interpretation and¶ elaboration, his own undeliberated expression, and yet enable the
performers to offer their¶ personal locutions "with reference to the primary conception." n7¶ This treasure of American
jazz, So What, seems a fitting response to Schlag's elegant and well¶ reasoned argument. We would like to consider this
musical performance as a form of an engaged¶ elaboration of Schlag's ironic discipline, his no exit linguistic architecture.
His argument has¶ anticipated and absorbed the countermoves by its capacious sweep and condemnation of¶ enchanted
rationality in its myriad forms. Each possibility--denying premises, challenging¶ evidence, unpacking logic, or deploying
alternative logics--merely confirms his argument of¶ enchantment. Thus, if we were to do something more than offer
passive assent, we felt¶ compelled to respond without deploying the conventional forms of rationality that he suggests¶ are
mystical masks of raw, brutal power.¶ By offering this jazz interlude, we are not suggesting that music is not itself a highly
rationalized¶ enterprise. Quite the contrary. Indeed, Max Weber built his analysis of the progressive¶ rationalization of
western society, in part, on a history of musical scales, equalization of scale¶ intervals, and systematization of tonality.
Although American jazz is a notable sidebar and¶ possible counterpoint to the history of increasing professionalization and
rationalization of¶ music, it is nonetheless a highly disciplined activity, as Evans suggests and as any performer or¶ lover of
jazz knows. It has a logic--a system of scales, changes, transpositions--that must be¶ mastered and honed to an
extraordinary degree to enable composition in the moment of¶ performance when "erasures or changes are impossible," as
Evans says. n8 As rational and¶ systematic as music is, or jazz particularly, it is not the law's rationality, system, or logic.
Yes,¶ there are questions and responses in jazz performance, and yes, it can be analyzed¶ mathematically, and it has been.
But musical theory is a different form of rationality than the¶ Aristotlean syllogism that grounds law's rational aspirations.
More importantly for this argument,¶ the jazz idiom exemplifies the possibilities of invention, spontaneity, and emotional
connection¶ that enchanted reason seems to deny. Thus, we suggest by this musical preface that jazz might ¶ serve as a
model of a way out of Schlag's rhetorical prison, and as pointer to the [*499]¶ alternative moral and aesthetic values he
often celebrates. If jazz illustrates an opening in what¶ otherwise appears to be a seamless facade of unyielding rationality,
unyielding in its ideological¶ hegemony, not because it suffices or fails to run out, jazz improvisation may also suggest a
path¶ of reconciliation.¶ Schlag
lays out his critique of American legal thought by
deploying two organizing metaphors:¶ law as central command and law as
the big tent. In the first, reason is distinguished from and¶ transcends all
other forms of belief, understanding, or ways of knowing, and we would add, ways¶
of being. In the second, big tent version, reason is inclusive, rather than exclusive, and¶
accommodates a much wider range of matters, materials, sources, modes of
thinking "as¶ reasoned aspects of the enterprise of law." n9 In a sense, perhaps, we might
have given away the¶ game, bowed to Schlag's rhetorical edifice, by deploying the jazz metaphor. If jazz can help us¶
understand the life and power of the law, as we are suggesting, then we must work with a much¶ more capacious
conception of law than the exclusionary law as central command would allow.¶ And, in this expansionary move, we have
located ourselves on one side of Schlag's binary divide¶ and enacted the recuperation he ardently challenges. n10
Nonetheless, we want to suggest that¶ we
begin with a more commodious and
experientially grounded conception of law than the¶ positivist central
command. If we move away from the professional legal terrain as the whole
of¶ law, or even just the most powerful and important aspects of law, and instead pay attention to¶
forms of experience and legal action that are more common (although less
authoritative), we can¶ illustrate the power of Schlag's argument. We show how
the tensions expressed in legal¶ reasoning (between logic and experience, [*500] between
law as a closed, self-referential¶ system and law as a social instrument) are
repeated outside of the professional terrain. More¶ importantly, if we look beyond
an elitist conception of law in terms of professionally¶ monopolized discourse, we
may be able to reconcile these binary tensions without recuperating,¶ and thus enchanting,
reason.¶ Schlag is not wrong, he is just too much the law professor. Although he explores the tensions¶ between the
exclusive and inclusive conceptions of law, he has, in formulating both positions,¶ nonetheless fixed his compass too
narrowly on professionalized law. He has insufficiently¶ emphasized an insight that he himself makes distinguishing the
life world from the formalized¶ rational systems that are increasingly colonizing the life world. People live in the
quotidian,¶ everyday life world of commonplace, taken-for-granted transactions. They experience¶ constraints of various
forms; they usually know where and when they are free and when they are¶ not. They go about their activities more or less
thinking about what they do. Sometimes people¶ act unconsciously, borrowing habits and invoking instrumentalities
whose origins and rationales¶ they cannot identify. In these instances, they are perhaps less aware of the limits on freedom
and¶ sources of constraint. Sometimes, however, actors invent new behaviors for themselves, adapt¶ old modes to new
problems, transpose a familiar action to a new purpose with a new¶ consequence and meaning. Most
people
recognize the power of rational systems--in markets, in¶ bureaucracies of all
sorts, and in law. They experience the power of organized
instrumentalities,¶ with reliable sequences between action and outcome.
Most people, most of the time, place their¶ trust in the systems that govern
their daily lives--that the water coming from the tap is not¶ poison, that cars will stop at red lights, that money
placed in the bank will be available for¶ withdrawal. When those systems fail--when the pilot is
no longer in control of the plane--we ¶ become aware of how much of our
lives we have ceded to systems we neither control, nor often¶ understand.
Ordinary people recognize these logics and rationalities, and they
experience them--¶ air traffic control, banking, and the law as another of those systems--as both liberating and¶
imprisoning. While their own actions and trust may contribute to the entrenchment and¶ expansion of expert rational
systems, ordinary people are not necessarily enchanted by them.¶ Were there more time and space--the usual excuse--we
would want to explore reason generally¶ as a kind of social process rather than as a reified thing, looking at the variable
enactment of¶ different kinds of reason in everyday life and in systems of authority and control. Here, however,¶ we will
talk about the social processes of law specifically: How law is experienced as both¶ reason and not reason, how
rationalization [*501] is a particularly professional product, and¶ how rationalized, enchanted law is pragmatically
compromised and resisted. Rather than the¶ enchantment of reason, this paper will emphasize how the dialectical
relationship between¶ enchantment and disenchantment sustains the rule of law. Thus, if we might reformulate Holmes ¶
in light of the work of Miles Davis, Cannonball Adderly, John Coltrane, and company, we¶ would--with appropriate
modesty--suggest that Holmes did not have it quite right. We
use data¶ from our research on the
place of law in everyday lives of Americans to show how the life of the¶ law,
and especially the power of law, derives from the fact that it is both logic and
experience.¶ To make this argument, we first suggest the terrain of law that needs to be explored in order to¶
understand how it works and why it is powerful. Here we distinguish the law in everyday life¶ from the law professor's law.
Then we provide a taste of how the law is experienced in the¶ everyday lives of Americans. We illustrate the opposing
conceptions of law and reason that¶ Americans invoke in making sense of the power of law. Finally, we show how this
experience of¶ law, in terms of multiple stories or narratives of legality (some enchanted, some quite mundane),¶ sustains
rather than erodes the power of law.¶ Law and Legality in Everyday Life
Legal decisions are never definitive – inconsistencies among agencies
ensure policy rollback and doubt in constituants
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 29-30), “LJH”
The legal procedures that for eight years blocked dredging in Oakland Harbor reflect
fundamental ideals of pluralistic democracy—that public policy should be formulated
and implemented only after full and fair deliberation; that meaningful attention should be given
to the claims of the individuals and groups who are not politically powerful (such as the Half
Moon Bay fishermen); that environmental protection should be given special weight in planning
currently urgent development projects that might deprive future generations of irreplaceable
ecological amenities; and that to vindicate those values, a variety of interest groups and agencies
should be able to challenge official assumptions and judgments in court. But in the Port of
Oakland story, the procedures designed to protect those values seemed to fall into the hands of
the Sorcerer’s Apprentice, multiplying themselves beyond control. Month after month, regulatory
officials, scientists, and lawyers, arguing first in one legal forum, then in another, debated the
propriety of decision making procedures, the adequacy of sediment samples and tests for
chemical contamination, and the reliability of environmental impact models. No proceeding
produced any definitive finding that the proposed disposal plans were environmentally dangerous. But neither could any single court or agency
authoritatively designate a single environmentally acceptable, economically
sensible alternative. In the Port of Oakland case, adversarial legalism’s legal
flexibility—which in the Alabama prison case permuted a bold Judge to create new rights and
remedies produced only a legal mess. The governing body of law, detailed and complex,
generated only uncertainty, inconsistency, and legalistic defensiveness. When
one agency found a plan legally acceptable, another would disagree. When one court upheld a
regulatory decision, another overturned it. No agency could ever be sure that its legal
rulings would hold up in court. The mere threat of adversarial litigation,
with its capacity to impose-further crippling delays, induced both the Port and
the Corps of Engineers to accept successively more remote (and far more costly)
disposal sites and methods, regardless of the merits of the objections. In the
tangled web of adversarial legalism, mollusks received far more protection than human
communities.3 Rotterdam, Europe’s largest seaport, must deal with far larger volumes of far more
seriously contaminated dredged material. The Netherlands, like the United States, adheres to the
London Dumping Convention preventing ocean disposal of toxics. There is a strong “green
movement” that pushes officials to comply with national environmental laws, which, like those in
the United States, call for detailed impact analyses and detailed mitigation plans. Thus the Port of
Rotterdam has dealt with its massive dredging and disposal problems in an environmentally
responsible manner. It has done so, however, far more expeditiously than the Port of Oakland,
without resource-draining and dispiriting adversarial litigation (Hanf and Smits, 1991). The
deadlock in Oakland, the Rotterdam experience suggests, is not inherent in the task. It stemmed
from a particular institutional structure, characterized by fragmented authority, complex and
constrictive legal rules, wide access to litigation, and unpredictable risks of judicial reversal.
Even if regulatory agencies act according to the law, injustice and
innefficiancies are prevalent
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 31), “LJH”
In the Oakland Harbor saga, the American legal and regulatory system was not
malfunctioning. It was being used as directed, or at least as officially permitted and
encouraged. Each regulatory agency and interest group whose legal actions postponed harbor
dredging was invoking regulatory standards, procedures, and analytical requirements that are
written into law. The redundant reviews by a multiplicity of specialized agencies, along with the
laws that enabled fishermen and county water districts to haul government officials into court,
were consciously designed bulwarks against environmental heedlessness. Each of those laws,
viewed on its own, seems rational and balanced, attentive to economic as well as
to environmental values, well grounded in democratic opinion. Nevertheless,
the cumulative outcome was irrational, unjust, and lamentably inefficient.
And that is because the mechanisms of American adversarial legalism—the very
lands of mechanisms that sometimes block environmentally obtuse development projects, that
yielded Brown v. Board of Education and the prison reform decisions, and that sometimes free
the unjustly accused—produce irrational, unjust, and inefficient outcomes as
well. Adversarial legalism is Janus-faced.
Examples of law working are irrelevant – focus on failure key to
promote change
Kagan 01 - Prof Emeritus of Political Science and Law, Professor of the Graduate School
(Robert, Adversarial Legalism: The American Way of Law, pg. 33), “LJH”
Why emphasize the Oakland dredging story rather than the Alabama prison reform litigation?
Why focus on adversarial legalism’s dark shadow rather than on its luminous
successes? Indeed, why concentrate on the extreme cases that lie within either tail of the
distribution, rather than on the American legal system’s more typical cases? One reason is that in
institutional analysis, as in medicine, pathological cases have diagnostic value,
revealing fundamental systemic mechanisms. If we understand the reasons for the adverse effects
of legal institutions and practices, they perhaps can be altered for the better. Second, the
pathologies of adversarial legalism are of immense importance, for they are
both unpredictable and enormously debilitating. They engender costly “defensive
medicine,” deter the assertion of just claims and defenses, distort and delay the implementation
of government programs, undermine faith in the justice system, and invite political overreaction.
If we are to retain the system’s virtues, it is important to understand and hence to tame its vices.
And to do that, it is necessary to explore the reasons why adversarial legalism has come to loom so
large in the American system of justice.
AT: Law Works
Law doesn’t work – must rely upon on civic virtue
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Lord Bryce observed that “[t]he student of institutions as well as the lawyer is apt to
overrate the effect of mechanical contrivances in politics.”584 The various repairs
that have been proposed—and, ultimately, the very Madisonian institutions
themselves—are in the end mechanical contrivances. Whatever their elegance,
these “parchment barriers,” as Madison described laws that stand alone,585 cannot
compensate for a want of civic virtue. Bagehot concurred: “No polity can get out of
a nation more than there is in the nation . . . .” “[W]e must first improve the English
nation,” he believed, if we expect to improve Parliament’s handiwork.586 This insight
was widely shared among 19th-century English constitutionalists. John Stuart Mill
(whose work on the English Constitution was published shortly before Bagehot’s)
shared Bagehot’s and Bryce’s doubts about the ultimate impotence of freestanding legal rules. “In politics as in mechanics,” Mill wrote, “the power which is
to keep the engine going must be sought for outside the machinery; and if it is
not forthcoming, or is insufficient to surmount the obstacles which may reasonably be
expected, the confidence will fail.”587
AT: Perm
Law determines thought and truth in society. Without challenge the
securitizing logic of the affirmative will continue through legal
systems
Krassmann ’12 – Professor of Sociology at the Institute for Criminological Research,
University of Hamburg (November, Susanne, Theoretical Criminology, “Law’s
knowledge: On the¶ susceptibility and resistance¶ of legal practices to security¶ matters,”
16(4), 384, DWB)
Rationalities, or modes of thinking, do not simply programme reality (see Miller and¶ Rose, 2008: 39). Rather, they
translate into technologies (Bröckling et al., 2010).¶ Technologies
of government in turn produce
certain truths and modes of seeing things.¶ They do not merely address and
describe their subject, as if this existed as such before¶ being accessed. They constitute it. There is, in this
sense, no transparency. Legal¶ reasoning first and foremost produces a normative
reality. Any enforcement of law, in¶ turn, also invokes certain forms of knowledge.
Technologies produce their own truth¶ effects, they facilitate certain rationalities of action. Knowledge, in the
present context¶ then, is neither merely a question of meaning and representation
nor is it about the¶ alternative between truth and delusion. It is about the
production of truth, and about¶ practices and action, modes of thinking and
perception.
The permutation is an act of cooptation by the state—give an inch and
lose a mile—only the alt alone provides the tools necessary to break
down the negative aspects of the law
Gabel 1984 (Peter [Professor of Law, New College of California School of Law, San Francisco] ; SYMPOSIUM:
A CRITIQUE OF RIGHTS: The Phenomenology of Rights-Consciousness and the Pact of
the Withdrawn Selves; 62 Tex. L. Rev. 1563; kdf)
The cooptation strategy that these officials adopt -- a strategy that may or may not be conscious
as regards its form, but remains unconscious as regards its experiential meaning -- is
to calibrate their responses to the movement's demands so as to encourage
the tendency already present in the movement to return to a state of
quiescence. This strategy seems to involve roughly three stages n37 that take place across a time-span (often
decades) dictated by the pulse of the movement itself. At first, these officials refuse to recognize the legitimacy of the
movement's demands at all because they are inconsistent with existing law. This risks increasing the anger that forms part
of the movement's strength and it may provoke destabilizing confrontations and [*1593] demonstrations that increase the
movement's visibility and appeal (for example, it may create a dispersed group of "sympathizers"). But this risk is a
calculated one because
it shores up the resolve of those who are opposed to the
movement by backing up this resolve with an affirmation of what "the
people" believe, while also tempting those within the movement to warp
their own understanding of how the movement itself is constituted. Because
the movement has achieved its disalienating reciprocity in part on the basis
of a "surface recognition" of its common difference within the alienated
social order, and because this new feeling of connection is as yet somewhat weak in light of the movement's
incomplete internal confidence in its own autonomous and transcendental constitution, the movement
suffers from an internal tendency to turn itself back into a group that is
constituted "from the outside" on the basis of the inert particularity that as a
movement it is seeking to surpass. When State officials refuse to recognize
the legitimacy of the movement's demands, the movement may partially give
in to this tendency by seeing itself less through its own eyes and more
through the "eyes of the State," as if "the State" were the source of its being
and for that reason ought to recognize it. The initial refusal of recognition by
State officials, in other words, may begin to seduce the movement into deciding
that "getting our rights" is the movement's ultimate objective rather than
being but a moment of its own internal development. To that extent the movement's anger
at the State may reveal a tendency toward compliance rather than transformation. As the movement gathers momentum
in this double direction -- the one toward itself, the other away from itself and toward "the State" -- the forces of alienation
will begin to realign themselves to prepare for the second stage of the State's strategy, the stage of pseudo-recognition.
Through a real intuition that spreads through the withdrawn selves on the basis of their existing organization of
reciprocity (a phenomenological definition of "the social structure"), some people remain staunchly opposed to the
movement because of their particular social relationship to it, while others begin to mediate the movement's relationship
to the group as a whole (through "the media," for example) by recasting the movement's demands as a legitimate "rightsdebate" with "difficult arguments on both sides." As leaders of collective experience, these oracles of the center seek to
"mold public opinion" in a way that secures its anonymous or empty character against the risk that the desire unleashed
by the movement could become a genuinely public force; their efforts are nervously aimed at reassuring the group as a
whole that the images supporting our substitute connection can be reorganized to accommodate [*1594] the movement's
demands. These efforts are a measure of the movement's authentic impact. But they are also aimed at bombarding the
movement itself with a false picture of its public success by suggesting that the movement is making headway because of
its compatibility with the political foundations of the status quo (when exactly the reverse is the case). To the
degree
that the State's original refusal of recognition has already encouraged the
movement to experience its own reciprocity as deriving from its external
and role-based particularity, this shift toward mediation may further this
temptation by implying that the "bad State" may be willing to back down and
atone for its wrongs if the movement will abandon its transformative
ambitions, or at least postpone them until an unrealizable future when these ambitions will be "allowed." When
State officials subsequently begin to recognize the movement's specific demands in the form of rights-victories, they do so
with the hope that the movement will "trick itself" into equating these victories with its own internal ends. As State
officials know perfectly well, it is not necessary or even conceivable that the movement will accept the acquisition of a few
rights as all that it means to accomplish. It is necessary only that the movement divert itself from its authentic selfunderstanding enough to deceive itself into thinking that its objectives could eventually be realized through existing law,
as if alienation could ever be overcome with its own agreement. For State officials comprehend in their being that once
this diversion occurs, the movement will tend increasingly to see its own capacity to realize itself as located outside of itself
in "the State," and to that degree its transformative momentum will tend to collapse from within for reasons described
earlier: "belief
in the State" itself derives from the reciprocal denial of desire
that divides us from each other by our role-performances and that secures
the apparent reality of these performances through our collective obedience
to a projected authority. Thus the recognition of the movement's demands by State officials is actually a
pseudo-recognition because it intends to strip these demands of their universal and transformative meaning and to induce
the movement to grasp itself as a "recognized particularity," playing its part along with all of the others in the circle of
collective denial that forms the alienated whole.
AT: Squo Solves
National security bureaucrats will preserve the status quo
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
The Trumanite network is as little inclined to stake out new policies as it is
to abandon old ones. The Trumanites’ grundnorm is stability, and their ultimate objective is
preservation of the status quo. The status quo embraces not only American
power but the Trumanites’ own careers, which are steadily elevated by the conveyer belt on which
they sit. Preoccupied as they are with cascading crises, swamped with memos and email and overwhelmed with meetings,
Trumanites have no time to re-examine the cosmological premises on which policy is based.179 Their business is reacting,
day and night. Working weekends and evenings is routine; theirs are 24/7 jobs180 that leave no time for pondering big
pictures. They are caught up in tactics;181 larger ends are for memoirs. Reflecting on the “fail[ure] to take an orderly,
rational approach” to Vietnam decisionmaking, Robert McNamara wrote that “we faced a blizzard of problems, there were
only twenty-four hours a day, and we often did not have time to think straight.” 182 His successors encountered an equally
frenetic environment.183 With the anger, frustration, emotion, and the mental and physical exhaustion induced in
under crisis conditions, a pernicious but existing policy
gradually comes to be seen as the least bad choice. The status quo is
preserved by minimizing risks, which means no bold departure from the
settled long-term policy trajectory. “ Men who have participated in a decision,” as James Thomson
working long hours
succinctly put it, “develop a stake in that decision.”184 Slow is therefore best. The risk of embarrassment is lower in
continuing a policy someone else initiated than in sponsoring one’s own new one. If the policy fails, the embarrassment is
someone else’s.
Bureaucrats keep with a failed policy rather than change – don’t care
about the outcome – the vast bureaucracy is too strong to escape
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Accordingly, once a policy is final, Trumanites rally readily round it, however much
they might once have disagreed. Dissent shades into disloyalty and risks marginalization, particularly in a policy group
with high esprit de corps. As Kissinger put it, “[s]erving the machine becomes a more absorbing occupation than defining
its purpose.”188 Little credit is gained by advocating for an option that has earlier been rejected. Likelier than not, one’s
superior, or his superior, was present at the creation of the policy and takes pride in its authorship. “ In
government it is always easier to go forward with a program that does not
work,” David Halberstam wrote, “than to stop it altogether and admit
failure.”189 Even those immersed in the policy-making process are often
bewildered by its outcome. The Army chief of staff, Harold Johnson, could think of “no logical rationale”
to explain the military’s continuing recommendations for incremental escalation of the U.S. war effort in Vietnam—even
though the military had difficulty devising any persuasive strategy to produce victory.190
The Trumanites’ commitment is therefore to process rather than outcome.
“It is an inevitable defect,” Bagehot wrote, that “bureaucrats will care more
for routine than for results; or, as Burke put it, ‘that they will think the substance of business not to be
much more important than the forms of it.’”191 “Men so trained,” he believed, “must come to think the routine of business
not a means but an end—to imagine the elaborate machinery of which they form a part, and from which they derive their
policy
within such a system reaches critical mass, and its gravitational pull is too
strong to escape even for political appointees, who are easily co-opted.193 “The vast bureaucratic
mechanisms that emerge develop a momentum and a vested interest of
their own,” Kissinger wrote.194 “There is a trend toward autarky.”195 There thus emerges, as Goldsmith put it, a
“persistence in the interests and outlook of the national security leadership and especially of the
national security bureaucracy.” 196
dignity, to be a grand and achieved result, not a working and changeable instrument.”192 At a certain point,
Bureaucrats prevent any aff solvency – nothing will happen as long as
it appears the political is in charge
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Trite but true, the perfect is the enemy of the good, the Trumanites know; good wheels ought not be reinvented. Thus
a
policy takes on a life of its own, feeding on caution, living off the
bureaucratic land, resistant to the changing preferences of elected officials who come and go200—a
“selfgenerating enterprise,” as Senator Frank Church described it.201 The careerists, as President Truman himself said,
“look upon the elected officials as just temporary occupants,” particularly in the realm of national security.202 The
careerists can always wait them out. “It has often happened in the War and Navy Departments that the generals and the
admirals, instead of working for and under the Secretaries, succeeded in having the Secretaries act for and under them.
And it has happened in the Department of State.”203 Truman expected that his newly-elected successor, Dwight
Eisenhower, would be surprised by the bureaucratic inertia. “He’ll sit here, and he’ll say, ‘Do this! Do that!’” Truman said.
“And nothing will happen. Poor Ike—it won’t be a bit like the Army. He’ll find it very frustrating.”204 Neil
Sheehan205 reflected on why nothing would happen. Sheehan’s Times colleague Halberstam recalled that Sheehan came
away with one impression: that “the government of the United States was not what he had thought it was; it was as if there
were an inner U.S. government, what he called ‘a centralized state, far more powerful than anything else . . . . It had
survived and perpetuated itself . . . . [I]t does not function necessarily for the benefit of the Republic but rather for its own
ends, its own perpetuation; it has its own codes which are quite different from public codes.’”206 The Trumanite network
The maintenance of Trumanite autonomy has
depended upon two conditions. The first is that the Madisonian institutions
appear to be in charge of the nation’s security. The second is that the
Madisonian institutions not actually be in charge.
has achieved, in a word, autonomy. 207
“Double government” requires the perception that politicians be in
charge- that is the source of the legitimacy of the bureaucrats
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
For double government to work, the Madisonian institutions must seem in
charge, for the Trumanites’ power flows from the legitimacy of those
institutions. Occasionally slip-ups occur,208 but its members generally maintain the appearance of Madisonian
control. Without public deference to the President, Congress, and the courts,
the Trumanite network could never command obedience. Behind the scenes, the
Madisonians defer to them; technocratic expertise and years of experience are useful resources for any policymaker to
draw upon. Madisonian complaisance is not only inevitable but useful in promoting informed and knowledgeable
decisions. Expertise, efficiency, and experience are not, however, sufficient in and of themselves to induce the
Madisonians’ general acquiescence in measures needed for effective governance. For all its proficiency, the Trumanite
network is still too “artificial,” too unfamiliar to generate public reverence . Like Britain’s real rulers, the Trumanites bring
up the rear in Bagehot’s “splendid procession”210 of governance. They are “secreted in second-rate carriages; no one cares
for them or asks about them, but they are obeyed implicitly and unconsciously by reason of the splendour of those who
eclipsed and preceded them.”211 Those who preceded them are the apparent rulers, the “imposing personages” for “whom
The Trumanite network survives by
living in the Madisonian institutions’ glow. Because the Trumanites could never by themselves
generate the requisite public veneration, evolution toward double government was necessarily slow . Quick
alteration would have been seen, Bagehot theorized, as a “catastrophic
change” that would have “killed the State.”213 The Trumanites thus operate
under a strong incentive to ensure that Madisonian institutions shine
brightly. That is also in the interests of the Madisonian institutions themselves; its members wish to be seen by the
the spectators cheer”; “it is by them the mob are influenced.”212
public as in charge, for their own sake as well as the nation’s. Members of Congress are loath to exhibit any lack of
the
illusion persists that the President is the “decider” on Trumanite proposals.
authority that would make them look weak and undermine their legitimacy or reelection chances. Likewise,
The Trumanites and their operational enterprises are, after all, “his.” Announcements are made regularly that “he” has
The
judiciary, too, continues to appear to be the ultimate arbiter of legality, for
its own power as well as the Trumanites’. At the level of appearances—and it
is above all appearances that count—interests are aligned, fed by the need
simultaneously to maximize both expertise and legitimacy. Maintaining the
ordered “his” Secretary of State to do this and that “he” has ordered “his” Secretary of Defense to do that.
appearance of control and thus the ability to generate deference, Bagehot suggests, requires five attributes: historical
pedigree, ritual, intelligibility, mystery, and harmony.214 Together, these elements inspire a sense of duty, a felt obligation
on the part of the public to obey.215
Bureaucrats and politicians must appear to get along – bureaucrats
cannot be seen as controlling warrantless NSA surveillance without
delegitimizing the politicians, and undermining the power source of
the bureaucrats
Glennon 2014 – Professor of International Law, Fletcher School of Law and Diplomacy, Tufts
University (Michael, Harvard National Security Journal, Vol. 5, “National Security and Double
Government”, http://harvardnsj.org/wp-content/uploads/2014/01/Glennon-Final.pdf
Finally, to all appearances, harmony prevails between the Trumanite
network and Madisonian institutions. This is not because the Trumanites click their heels and
salute the Madisonians. Trumanites believe that the Madisonian institutions, in Bagehot’s phrase, “tend to diminish
simple efficiency.”223 They know that needless bellicosity toward other nations often originates on Capitol Hill.224 They
can tick off multiple military (mis)adventures pushed by “the civilians” that Pentagon planners prudently opposed. They
know from history how Joe McCarthy and his merry band savaged the State Department,225 petrified sensible
policymakers, and made the CIA a veritable political safehouse for enlightened “China hands.”226 They know how, before
the Trumanite network arrived on the scene, Madisonian institutions bungled American membership in the League of
Nations and toyed dangerously with indifference and isolationism227 while Hitler’s shadow lengthened.228 To the
Trumanites, “[t]he nation [has] outgrown its institutions, and [is] cramped by them.”229 With Acheson, they regard the
Madisonian institutions as lacking the requisite expertise, experience, and seriousness of purpose needed to safeguard the
Rather, the Trumanites are not seen publicly to resist the
policies set by the Madisonians because the Madisonian institutions must
always be perceived as the authors of the Trumanites’ projects. For the
Trumanite network to be identified as the authors of initiatives such as
warrantless NSA surveillance, the mining of Nicaragua’s harbors, or the Bay of Pigs invasion would
risk delegitimizing the Madisonian institutions—and thus undermining the
ultimate power source on which the Trumanites themselves must rely, electoral
nation’s security.
assent. Ostensible harmony is therefore imperative.
AT: You are nihilistic
Alternatives to international law are not limited to nihilism- a more
nuanced approach is needed
Knox 12 – PhD Candidate, London School of Economics and Political Science (Robert,
paper presented at the Fourth Annual Conference of the Toronto Group for the Study of
International, Transnational and Comparative Law and the Towards a Radical
International Law workshop, “Strategy and Tactics”) (Knox, Robert, 2012, “Strategy and
Tactics,
http://chicago.ssrn.com/delivery.php?ID=02409411300607909207009408308000810
20990740180370420591080920650040240011070880960741210601231190210981141
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2010094115119114091030115116030067069099083005124072124028119095091029&E
XT=pdf&TYPE=2, 06/26/15) JG
It is as a result of this very real dilemma that many scholars turn to a purely¶ tactical understanding of legal struggle.
Whilst ‘We are Teachers’ may be the most¶ sophisticated articulation of this position, it is one that resurfaces again and
again¶ in critical scholarship. Many lengthier works follow a similar pattern. For the vast¶ majority of the piece there will
be a historical and/or theoretical examination of¶ the ways in which international
law has been deeply
complicit with oppression,¶ exploitation and domination. Yet in the #nal part, there
will be a paragraph to¶ the e$ect that – notwithstanding the previous critique – it is impossible to ‘give¶ up’
on international law. !is does not usually make explicit reference to the¶ previous theoretical critique, but
rather argues that since international law is the¶ it has a duty under international law to exert
its in"uence to stop violations of international¶ humanitarian law in the current con"ict
between Israel and Hamas. A fundamental principle¶ of international humanitarian law is that the parties to a
con"ict must distinguish between¶ civilians and those who participate directly in
hostilities. Attacks deliberately aimed at the¶ civilian population and civilian objects, by any means, are prohibited,
as are attacks that do not¶ discriminate between civilians and combatants, or which are likely to cause harm to civilians¶
that is excessive when compared to the military advantage sought by the attack.’ !ere is very¶ little consideration as to
whether either side may bear more political responsibility for the¶ problems of the con"ict, or of the broader economic and
political logics at play.¶ 59. ‘Growing outrage at the killings in Gaza’, !e Guardian, 16 January 2009. <www.guardian. ¶
co.uk/world/2009/jan/16/gaza-israel-petitions>.¶ 214 Finnish Yearbook of International Law (Vol. 21, 2010)¶ language of
international relations (and debate about these relations) prudence¶ demands we continue to use it. Antony Anghie puts it
well when he notes:¶ At
the very least, I believe that the !ird World cannot abandon
international¶ law because law now plays such a vital role in the public realm
and in the interpretation¶ of virtually all international events. It is through the
vocabulary of¶ international law, concepts of ‘self-defence’, ‘human rights’ and ‘humanitarian¶ intervention’ that
issues of cause, responsibility and fault are being discussed and¶ analysed, and
interpretations of these doctrines which reproduce imperial relations¶ must
be contested.60¶ !is particular move, although not necessarily couched in terms of strategy¶ and tactics,
nonetheless reproduces the basic structure criticised above. In it,¶ prudence is
once again con#ned to the short term, conjunctural sense. Yet one¶ cannot simply
brush aside such a line of argument, especially when expressed in¶ these terms. If the
alternative to the ‘strategic’ use of liberal legalism is ‘abandoning’¶
international law (or some other form of legal nihilism) then liberal legalism¶ would seem
to be only real option for those actually engaging in political struggle.¶ !e problem is that this
counterposition of liberal legalism as against legal¶ nihilism ultimately reproduces the rigid
theory/practice divide outlined above, and¶ essentially insists that strategy and tactics exist to the rigid exclusion of one
and¶ other. !e particular form that this separation takes – associating the traditional¶ meaning of strategy with theory and
‘principle’, and tactics with practice and¶ ‘prudence’ – means that strategic concerns simply disappear from the picture.61¶
In contrast to this would be a position that understood that ‘theory’ is never¶ simply
an abstract consideration, but one which is always active in practice,¶ 60. Anghie,
Imperialism, supra note 22 at 318. Bhupinder Chimni argues similarly: ‘On the¶ other hand, IIs [international institutions]
have undergone a quantitative and qualitative¶ transformation in the past two decades. !e essence of these changes has
been the use of¶ IIs to realize the interests of a TCC [transnational capitalist class]. IIs have come to play a¶ central, though
retrograde, role so far as third world states and peoples are concerned. Indeed¶ a nascent global state has emerged under
the in"uence of the TCC and powerful Northern¶ states. Under these circumstances, to suggest that renewalists are
condemned to the role of¶ Sisyphus is perhaps to disarm third world peoples against the most signi#cant contemporary¶
embodiments of imperialist policies and strategies.’ ‘International Institutions Today: An ¶ Imperial Global State in the
Making’, 15 European Journal of International Law (2004) 1-37¶ at 30. A similar argument can be made with respect to
the articles cited supra note 23, which¶ – in arguing for actors to alter their bargaining power through altering legal rules –
presuppose¶ the continued existence in which the bargaining takes place.¶ 61. Clausewitz notes that there is quite a
powerful tendency to ignore strategic concerns entirely:¶ ‘It may sound strange, but for all who know war in this respect, it
a fact beyond doubt, that¶ much more strength of will is required to make an important decision in strategy than in¶
tactics. In the latter we are carried away by the moment: a commander feels himself borne¶ along by a powerful current,
against which he dare not contend without the most destructive¶ consequences.’ Clausewitz, War, Politics and Power,
supra note 9, at 173. ¶ Strategy and Tactics 215¶ whether implicitly or explicitly. From this would also "ow the idea that
long term,¶ structural considerations are not to be understood in opposition to ‘prudence’¶ but rather as speci#c structural
and temporal articulations of prudence. On this¶ reading, the
opposition would not be between
‘using the law’ (as a liberal) or¶ ‘abandoning it’ (as a nihilist). Rather the question is on
what terms is it possible to¶ use the law without fatally undermining longer
term, structural considerations.62¶ !is is the understanding that has driven work from within the
Marxist tradition¶ to which this article now turns.¶ 4. Reform or Revolution? Both!¶ It has often been observed that there
is very little work in the Marxist tradition¶ that has systematically sought to understand law.63 Although there is some
truth¶ to this, there is at the same time a small but rich literature on the topic. !is is the¶ case both in general
jurisprudential terms,64 and more speci#cally – particularly¶ over the past decade – in terms of international law.65 Yet
even if we exclude those¶ writings that explicitly address law, the question of the
relationship between
law¶ and revolutionary politics has been central to how Marxists have
thought about¶ political action.¶ !e rubric under which this question has played out is usually that of the¶
debates around reform and revolution. !e central problem of these debates – to¶ 62. China Miéville has argued that in fact
the opposition between (neo-conservative) legal¶ nihilism and liberal legalism is in fact a form of symbiosis in which ‘[t]he
liberal mainstream¶ has attacked the nihilist neocons for gravely injuring international law, and thus stressed¶
neoconservative power; and those nihilists in turn have complimented international law (and¶ by implication its
advocates) by denouncing it as a mortal threat.’ Against this, he argues¶ that neo-conservatives
are not
simply nihilists, but have a nuanced approach to law, and that¶ liberal legalism
is intensely bound up with imperialism. !e point is that the false opposition¶
between ‘liberalism’ and ‘nihilism’ is an ideological symptom of the system
itself. See China¶ Miéville, ‘Multilateralism as Terror: International Law, Haiti and Imperialism’, 19 Finnish¶ Yearbook of
International Law (2008) 63-93 at 72.¶ 63. See Bernard Edelman, Ownership of the Image: Elements for a Marxist !eory
of Law (Routledge¶ and Kegan Paul: London, 1979) at 21–26.¶ 64. !ere are a few Marxist works dealing with ‘general
jurisprudence’ and the list would include:¶ Evgeny Pashukanis, Law and Marxism: A General !eory (Ink Links: London,
1978); Anthony¶ Chase, Law and History (!e New Press: New York, 1997); Karl Renner, !e Institutions of¶ Private Law and
their Social Functions (Routledge Kegan & Paul: London, 1949) and Olufemi ¶ Taiwo, Legal Naturalism: A Marxist !eory of
Law (Cornell University Press, 1996).¶ 65. See, for example, Susan Marks (ed.), International Law on the Left: Revisiting
Marxist Legacies¶ (Cambridge University Press, 2008); Miéville, Between Equal Rights, supra note 25; Bill¶ Bowring, !e
Degradation of the International Legal Order? !e Rehabilitation of Law and the¶ Possibility of Politics (RoutledgeCavendish: London, 2008); Rasulov, ‘!e Nameless Rapture¶ of the Struggle’, supra note 7; Özsu, ‘!e Question of Form’,
supra note 7; Sonja Buckel and¶ Andreas Fischer-Lescano, ‘Gramsci Reconsidered: Hegemony in Global Law’, 22 Leiden¶
Journal of International Law (2009) 437-454.¶ 216 Finnish Yearbook of International Law (Vol. 21, 2010)
Affirmative
FW – Legal discourse good
Incorporating their movement in the law is the only way for them to
solve—their offense doesn’t assume the power that students have on
the legal process
Edwards and Vance 2001 (Pamela [Assistant Professor of Law at CUNY School of Law] and Sheilah
[Assistant Dean for Academic Support and an Adjunct Professor of Law at Villanova University School of Law]; PRACTICE AND
PROCEDURE: TEACHING SOCIAL JUSTICE THROUGH LEGAL WRITING; 7 Legal Writing 63; kdf)
A. What issues constitute "social justice"? Social
justice is the process of remedying
oppression, which includes "exploitation, marginalization, powerlessness, cultural imperialism, and violence." n5
Issues of social justice include problems involving race, ethnicity, and interracial conflict, "class conflict, gender
distinctions, ... religious differences," and sexual orientation conflicts. n6 Social justice also includes public interest work
in its many guises. B. Why teach social justice in legal writing courses? Several
important reasons exist
that justify teaching social justice in legal writing courses. Benefits inure to both law
students and law professors. This section of the article discusses the benefits to law students. 1. Teaching social justice
issues encourages a diverse student body. Some of the benefits of having a diverse student body accrue not only to
members of underrepresented or outsider groups, but also to members of the dominant group or Aingroup.A Scholars
have argued that by
hearing outsider stories, members of the ingroup will develop
the ability to understand the different perspectives and experiences of
outsider groups. n7 These different perspectives and experiences will help to identify and
eventually to eliminate biases in the law. Many times, members of outsider groups are called upon
to educate their ingroup colleagues. Addressing social justice issues in legal writing would
expose ingroup students to alternative perspectives while alleviating some
of the burden outsider students bear to provide this perspective. n8 [*65] 2. Teaching social justice
issues maintains student interest. Students attend law school for a variety of reasons and with differing career aspirations.
Even so, most law students cannot see the connection between first-year mandatory courses and their ultimate careers.
By introducing issues of social justice early in law school, professors introduce students who
entered law school with an interest in practicing public interest law to situations they will face as attorneys. They
especially will
begin to realize the importance of legal writing and research to
practitioners by being exposed to some of the types of writing attorneys
engage in on behalf of their clients. While this is extremely important to professors in schools, such as
City University of New York School of Law, which are devoted to training public interest lawyers, some students in other
law schools also desire to practice public interest law. In addition, law students who come from backgrounds other than
white, middle class backgrounds may find little in law school that bears out their life experiences. In a law review article
on his experiences in school, one Ivy League law school graduate has remarked on "how little of the legal academic world
intersects even with the everyday world of even middle class African-Americans." n9 Although he wrote this in the context
of his property law course, the observation is true in many law school courses. Law professors typically incorporate in their
courses the usually unstated assumption of common experiences that everyone has shared. However, many outsider
students do not share in these "common experiences." 3. Teaching social justice raises and addresses issues of race,
ethnicity, class, and gender in society. Issues
of race, gender, ethnicity, and class are
central social issues, not marginal ones. As adults, law students can best under-take
critical scrutiny of their personal values and of their individual culture's
values, assumptions, and beliefs. n10 Therefore, faculty should provide students with "disorienting
moments" that will [*66] cause them to question their values and beliefs. n11 This need to expand our
students' horizons is especially critical because legal writing pedagogy
silences outsider voices with its emphasis on an audience of attorneys that is
largely white, male and allegedly "neutral." n12 By raising social justice issues, professors let
students know that their prelaw school experiences and concerns have value in the legal profession. n13 4. Teaching social
justices supports the creation of more sensitive and understanding attorneys. All aspects of the law school curriculum,
including legal
writing, should be reviewed to ensure that course content
prepares students to serve a diverse client base. n14 To that end, students must [*67] become
more sensitive to, and understanding of, various cultures and social groups. n15 This sensitivity can arise from making the
study of the needs and problems of clients from underserved communities an essential component of legal education. n16
5. Teaching social justice broadens students' exposure. In raising social justice issues, a professor helps students develop a
broader sense of the themselves and of the world. Law students are adult learners, and adult learners are in the best
position psychologically to develop a broader sense of self. n17 One of the intellectual challenges of law school should be
students' reassessing their vision of what social justice means to them now and what social responsibility will mean to
them later as attorneys. Raising social justice issues in the classroom is problem-posing education, which is an adult
education theory of challenging learners to critically perceive the world in which they live and their values. n18 Problemposing education offers possibilities for critical self reflection. n19 Finally,
students should be
exposed to multiethnic and diverse experiences to appreciate fully the
pluralism of contemporary society. n20 [*68] 6. Teaching social justices develops and provides an
outlet for students' voices. Some of the alternative pedagogies that can be used in teaching social justice, such as journals,
diaries, or personal narratives, can provide an outlet for students who feel silenced by traditional legal education. n21
Addressing social justice issues can also minimize the potential for, and damage, of muting. n22 Using
alternative approaches in legal writing teaches the value of both the legal
voice and the personal voice, especially the voice of "outsiders." n23 Perhaps raising
multicultural issues will help those students who, because of their status as outsiders, lose their identity, self-esteem and
will to succeed in law school. n24 Multicultural law students often feel that they are socially isolated in law schools, that
they are invisible, and that they have concerns which are considered unimportant. n25 This has a negative impact on
students' acclimation to law school, their self-confidence, and their academic performance. n26 A number of articles have
discussed the alienation that white women, people of color, gays and lesbians, and other outsiders face in law schools. n27
One of the manifestations of this alienation is the silencing of alternative voices. n28 Incorporating issues of [*69]
importance to these outsider groups in the curriculum will not only encourage ingroup students to examine the law from
another perspective but will also encourage students who are members of outsider groups to express their ideas and share
their experiences in writing, even if they hesitate to speak up in class. n29 Students who are members of outsider groups
often are made to feel unwelcome in law school. By
incorporating social justice issues into
legal writing classes, legal writing professors will afford students from outsider
groups the opportunity to feel included in law school without a transparent overt effort to do
so. The theme of the 2000 Legal Writing Institute Conference was preparing students for life after the first year of law
school. Many schools offer upper level courses on women and the law, on race relations law, or on legal perspectives, such
as critical race theory and feminist jurisprudence. Incorporating social justice issues into the firstyear legal writing course
can help broaden students' perspectives for these courses by providing a broader foundation for these jurisprudence
courses. Moreover, an introduction to alternative schools of thought on jurisprudence may encourage students to take one
of these elective courses. Even students who do not take one of these elective courses will benefit from an introduction to
alternative legal perspectives in the curriculum. Writers
enthusiastic about their topics are
more likely to produce a better product. Incorporating issues of social
justice into legal writing assignments is more likely to increase student
interest in the writing assignment, especially when problems are based on current events. Examples
include the issues of racial profiling by law enforcement officials, or gays in the military and the "don't ask, don't tell"
policy. Those professors who use the "process" approach n30 to teaching
legal writing try to
encourage students to focus on the audience who will read the documents.
This approach focuses on predicting how judges and other attorneys expect to receive information; however, this focus
frequently results in what has been called "regnant" lawyering. n31 Regnant lawyering, the opposite of client-centered
lawyering, puts the attorney's professional expertise ahead of the client's interests. In teaching law students to think "like
lawyers," [*70] professors frequently overlook the client's role in the process. Some professors try to compensate for this
omission by having students draft client letters; however, even in a client letter, the attorney's expertise is still the focus.
Although a client-centered approach may still require attorneys to translate their clients' stories for other attorneys or
judges, this approach encourages attorneys to focus more on the client as a person rather than solely as a legal issue.
However, focusing on the client may result in a conflict between the client's desires and the attorney's social justice
mission. For example, a client's desire to have his day in court and tell his story may conflict with his attorney believes is
the best legal strategy to prevail. n32 It is never too early to assist students in developing strategies to deal with this type of
conflict, including deciding whether to represent a client and whether to join a particular law firm, law office or other legal
organization. Social
justice should be taught in legal writing, before students have
become thoroughly indoctrinated into traditional legal thinking. By the end of the
first year, many students will have assimilated the language of the law and will be unable or unwilling to see the biases in
the law. n33 Teaching
social justice in legal writing will train students to see the
social, political, and economic implications of the law and the various legal
arguments they make. 7. Teaching social justice introduces students to attorneys' role in developing law. As
practitioners, legislators, or judges, attorneys play an important role in developing law, primarily through their writing.
Many people believe that attorneys have a moral obligation to advance the law's justice mission to alleviate the effects of
oppressive legal and socio-political power structures in society. n34
Attorneys who practice public
interest law (and students who aspire to do so) must consider how the law might be
reinterpreted and reformed to achieve social justice. n35 Legal writing courses
are the perfect place in which to introduce law students to this form of legal
analysis. [*71]
AT: Legal enchantment
The law is not mystified or controlled by academics- it’s something
that impacts our everyday and ought to be confronted
Silbey and Ewick 2003 (Susan [Prof @ MIT] and Patricia [Associate Prof @ Clark U];
SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF
NORMATIVITY, AND THE ENCHANTMENT OF REASON: The Double Life of Reason
and Law; 57 U. Miami L. Rev. 497; kdf)
American society is filled with signs of legal culture. Every package of food, piece of
clothing, and electrical appliance contains a label warning us about its dangers, instructing us about its uses, and telling us
to whom we can complain if something goes wrong. Every time we park a car, dry-clean clothing, or leave an umbrella in a
cloakroom, we are informed about limited liabilities for loss. Newspapers, television, novels, plays, magazines, and movies
are saturated with legal images, while these very same cultural objects individually display their claims to copyright. This
pervasiveness of law--its semiotic, visual, discursive profusion--is not a new phenomenon. This is, after all, a nation
governed by the longest lived democratic constitution in history, a nation of more lawyers and more litigation than
perhaps any other. But if the law seems to dominate public and private life in America, the public reception of law is
nonetheless ambivalent. Americans
may have a romance with law, as some might say, but
they are not mystified nor enchanted by it. Like many romances, there are intense but
contradictory feelings about the object of one's affection. We can begin to map the place of law in American society by first
looking at what some of us--social scientists that is--call the mobilization of law. This is often depicted as a funnel if one is
describing the [*502] criminal justice system as a sorting and processing of cases from complaint to incarceration, or a
pyramid if one is describing the civil justice system as a sequence of decisions from event to injury, complaint, and
litigation. These images describe the legal system--as a whole--by looking at what happens at each stage or subsystem
from the precipitating events through formal legal action and ultimate appeal and review. Systematic observation has
discovered that most legal activity takes place outside the purview of official legal agents and without the invocation of
formal legal doctrine. Very few legal matters become cases, trials, or appeals. This is true for criminal law, regulatory
administration, and civil litigation. To move from the world of all social transactions to the business of the United States
Supreme Court, from the universe of possible legal matters to the stuff that dominates legal scholarship, we need to pass
through at least five or six steps in the pyramid. n11 Leaving aside the vast amount of unperceived injuries that occur,
many people suffer and perceive injuries and losses which they nonetheless decide to overlook. Even when they name the
event as an injury, blaming others and holding them responsible for their loss, they often do nothing more. And in those
relatively few instances in which claims for remedy or redress are made, a very small percentage of exchanges leads to
litigation. n12 And yet, it is with litigation, two-thirds of the way up the pyramid, that the legal profession begins to take
notice, and in which the central command model of law and legal reason begins to operate. Although almost any social
interaction could, hypothetically, become a matter of contest and dispute, and although popular legal culture propagates a
message that Americans are extraordinarily litigious, routinely turning disagreements into lawsuits, it turns out that few
Americans pursue legal action in those circumstances in which they might have a litigable claim. In our study of 430
randomly selected residents of New Jersey, n13 respondents reported talking to a legal agent (police, government agency,
or lawyer) in fourteen percent of the [*503] instances they described to us as situations that they wished had been
otherwise and in which they felt aggrieved. In only three percent of the problem situations reported to us did the person
consult a lawyer. Even when people hire an attorney and then file suit, less than three percent of all civil filings in federal
or state courts go to trial; of all the criminal and civil cases decided, less than five percent of those go to appeal. The cases
at trial and appeal, and certainly the fewer than one to two hundred cases decided annually by the United States Supreme
Court, represent the minuscule top of a giant pyramid of legal engagements. Even those few social transactions that
become formal cases--cases that are sifted and winnowed, shaped and pushed, into the form of trials and appeals and thus
to the top of the pyramid--are a product of informal considerations as well as anything our central command or big tent
conceptions would recognize as legal rationality. In other words, the world of legal reasoning and possibly enchanted
rationality is a very small part of the legal world. Most of the transactions that have the color of law are taking place
outside the realm of reason's prison, as Schlag describes law. Suggesting
that the world of
professional legal discourse is limited to the upper tiers of a very shallow
pyramid does not, however, suggest that the law is irrelevant or absent. Indeed, we
want to argue quite the opposite. We are claiming that law colonizes much of American
life but that the ways in which law suffuses contemporary life are not
subsumed within the conception of enchanted rationality. If we reverse the trajectory of
this pyramid of legal action, we can visually conceive of the stuff of professional legal
discourse in court opinions, legislation, briefs, contracts, and regulations as
the very narrow tip of a more generally wide pyramid of informal legal
action. The narrow top contains the products of professional legal work; these forms of law enact and celebrate by
their very existence, the positive and common law, the big tent and the central command. But this is not the whole, nor
most of the law that governs our lives, the law that organizes those taken for granted transactions that constitute the
everyday life of Americans. Law is pervasive and powerful, not because we can easily find copies of the U.S. Reports, or the
Massachusetts General Laws, or handbooks for writing one's own will or contracts. Law is pervasive and powerful because
it is everywhere, even where the work of professional lawyers is relatively distant and often unseen. Finally, we offer an
image that is in some parts of the United States almost as familiar and commonplace as deeds, contracts, bills of sale,
parking garage receipts, clothing labels, and copyright imprints--the stuff of law in everyday life--but yet different.
Consider a phenomenon [*504] often observed in northern climates, on snow covered city streets: an old chair or milk
crate is placed in a recently shoveled parking spot, reserving the space. Unlike contracts, copyrights, traffic signs, or bills
of sale, which are standard markers of legality, this chair in the snow is not the direct and intentional product of
professional legal work. Instead, we might view this chair as a residue of that formal legal practice. Rather than a piece of
professionalized law, this is a sign of the law at work outside the formal institutional boundaries of law. The chair holding
a shoveled out parking spot is not solely a chair in the snow; it is a sign of law as it is experienced from the bottom up and
from outside of the formal spaces of legal institutions. Moreover, we
suggest that this may be the law
in its most pervasive, powerful, and durable form. This chair holding a
parking spot in the snow illustrates how people invoke pieces of legality to
fashion solutions to ordinary everyday matters, to constitute and sometimes
to refashion everyday life. Sometimes these legal invocations involve passive
violation of law; sometimes it involves direct confrontation with law, and
sometimes it involves action unrecognized by law. In this example, the chair in the shoveled out parking spot enacts
legality by appropriating the formal legal idea of private property. Signaling to the neighborhood a type of ownership, the
chair in the snow often elicits the same sorts of deference or respect accorded more conventional types of property. That
is, the neighbors park elsewhere. Similarly, the violation or transgression of this property may lead to conflicts and
disputes more commonly associated with property as it is formally defined by the legal system. It may lead to claims of
trespass, informal as they may be. Without naming the concepts of constructive use or adverse possession, the chair
implicitly invokes conventional justifications for property on the basis of investment and labor. The chair's presence
insists on certain prerogatives against the actions of uncertain others, prerogatives and actions that city ordinances may or
may not recognize or prohibit. n14 Thus, the
law is absent in its formal professional sense
and yet law is conceptually and morally present in organizing social
relations on this city street around this particular construction of the
concept of private property. n15
AT: Law creates no change
Law changes culture – example of Civil Right Act of 1964
Stoddard, 1977
Thomas B., NYU Professor of Law,
http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-72-5Stoddard.pdf
The (Civil Rights) Act, put into its full historical context, constituted
"cultureshifting" as well as "rule-shifting," attaining simultaneously all five
aims of legal reform. It gave victims of discrimination new fights and
remedies. It instructed the government to promulgate and enforce new
rules of conduct for itself. It altered the conduct of private entities and
citizens-dramatically, in the South. It expressed a new moral standard. AndI believe, although I cannot easily document my belief-it changed cultural attitudes.
There is no sure way to measure changes in cultural attitudes. Legal and economic
statistics about jobs and income may help somewhat, but they reflect external rather
than internal realities-formalities rather than conceptions. Even opinion polls are not
especially instructive, because respondents to such polls often are not truthful, especially
when the subject is race. I offer merely my own sense of things. But I see signs of the
change all around me. Perhaps the most credible monitor is television-the cultural
medium that binds together more Americans than any other.
Legislative creation of Civil Rights Act of 1964 resulted in changes –
model for social change in other settings
Stoddard, 1977
Thomas B., NYU Professor of Law,
http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-72-5Stoddard.pdf
The new rules of law were widely disliked, especially by whites in the South, but
the opponents of the Civil Rights Act of 1964 never rose in rebellion, either formal or
informal, against enforcement of the statute. If the new rules had come down from on
high from the Supreme Court, many Americans would have probably considered the
change of law illegitimate, high-handed, and undemocratic-another act of arrogance by
the nine philosopher-kings sitting on the Court. Because the change emanated
from Congress, however, such sentiments of distrust (whether grounded in
principle or in simple racism) never came to affect the legitimacy of this
stunning change in American law and mores. The Civil Rights Act of 1964 came
into being because a majority of the members of the national legislature believed it
represented sound policy and would improve the life of the country's citizens as a whole;
the ideas motivating the Act must therefore have validity behind them. In general, then,
not only did the historical fact of the continuing national debate on race
facilitate the public's acceptance of the Civil Rights Act of 1964, even in the
South, but so did the additional (I believe crucial) fact that the change came
through legislative consideration rather than judicial or administrative fiatlending it "culture-shifting" as well as "rule-shifting" power.2l The
astonishing effectiveness of the Civil Rights Act of 1964-the breathtaking
sweep of its cultural tailcoats-suggests that it should be a model for social
change in other settings. It also indicates that how change is made matters almost as
much as what is, in the end, done.
Laws change attitudes – results in real impacts (example, DUI laws)
Grant 2010,
Darren, The Dynamics of Drinking and Driving in the U.S.: The Role of Social Forces and
the Role of Law
SHSU Economics & Intl. Business Working Paper No. 10-03
October 2010 http://www.shsu.edu/centers/cbed/documents/working-papers/wp1003_paper.pdf
If the effects of drunk driving legislation have historically been overstated, and the
importance of social forces understated, our efforts to combat drunk driving are, to some
degree, misdirected. This possibility could be more easily disregarded if HBD had not
remained flat since 1997, despite increasing numbers of legal disincentives. One
corollary issue that defies quantification, and hence a simple resolution, is the
relationship–or, better put, relationships–between laws and social forces.
The two variables are associated, mutually causal, and complementary (see
Grant, 2010c, which elaborates on the following points at length). They are associated
because both social forces and laws can be fostered by changes in the political
environment and in scientific knowledge, as in the early 1980s. They are mutually causal
because changes in social attitudes can presage changes in the law, as many economists
recognize, and because new laws can change social attitudes, as many
politicians recognize. Finally, as emphasized among some criminologists and
sociologists, the social acceptance of drunk driving laws can be vital to their success,
making the two variables complementary.
Court rulings can shape movements and have a key role in the process of
social change
NeJaime 2013
Douglas Constitutional Change, Courts, and Social Movements, 111 Mich. L. Rev. 877
(2013).
http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1065&context=mlr
In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack
Balkin' furnishes a positive account of constitutional change, advances a
normative vision of the relationship between popular mobilizations and
evolving constitutional principles, and develops an interpretive theory aimed at
fulfilling the Constitution's promise. Rather than take an internal perspective that asks
how courts alter constitutional doctrine, Balkin decenters adjudication and instead views
the role of courts in constitutional change through the lens of social movements. In doing
so, he convincingly exposes the feedback loop between social movements
and courts: courts respond to claims and visions crafted by movements, and
court decisions in turn shape the claims and visions of those movements
and alter the political terrain on which those movements operate. By placing
social movements, rather than courts, at the center of his analysis, Balkin ultimately
redeems courts, demonstrating their lively, legitimate, and contingent role
in the process of constitutional and social change. In doing so, he challenges
influential constitutional scholarship that takes a generally pessimistic view of courts.
Alt Fails
The alternative jettisons questions of policy because of a risk of a link,
this causes poor decision making and ruins the process of debate
Pozen 2015 (David E [Associate prof @ Columbia Law]; Privacy-Privacy tradeoffs;
Early draft – June 28, 2015 83 U. CHI. L. REV. (2015);
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2624281; kdf)
Although it only scratches the surface of debates over surveillance reform, the discussion in Part III demonstrates that
privacy-privacy tradeoffs are deeply (if sometimes inconspicuously) woven into the
fabric of these debates. We would find the same thing, Parts I and II indicate, in virtually any area of
information policy. How might we build on these observations? If privacy-privacy tradeoffs cannot
be avoided, how might they be managed? Some basic suggestions emerge from the analysis
above. First, scholars, advocates, and government officials could do a much better job of
identifying and confronting privacy-privacy tradeoffs as tradeoffs. “Unless
decisionmakers consider the full set of outcomes associated with each effort
to reduce risk,” policy theorists have warned, “they will systematically invite [risk-]risk
tradeoffs.”76 This warning applies equally in the privacy context. Managing privacy- privacy
tradeoffs requires attention to, and information about, the full range of privacy interests
that may be affected by a decision, the potential conflicts and congruities among those interests, and
the expected distribution and degree of privacy gains and losses. It cannot
just be assumed that because a certain measure causes privacy harm, even
serious harm, privacy would be enhanced overall by jettisoning the measure .
Privacy policies and problems cannot be assessed in isolation. Second, the pluralistic turn in privacy theory may need to be
qualified or supplemented in certain respects to accommodate the reality of privacy-privacy tradeoffs.
Pluralistic
theories of privacy, recall, maintain that there are many different valid
understandings of privacy and that none has priority over the others.77 The
ability to control one’s intimate relationships is no more or less central to the right of privacy than is the ability to keep
secrets or to keep photographers at bay. The
danger of this approach is that it increases the
likelihood of intra-privacy conflicts (by recognizing more claims as privacy claims) while
simultaneously depriving us of resources to resolve them (by refusing to
supply a hierarchy of privacy principles). Privacy theory could make itself
more relevant to privacy policy by offering guidance on how to weight —or, in
cases of incommensurability, how to order— various privacy interests when hard choices
must be made among them. These choices are going to get made, wittingly
or unwittingly. The question is not whether privacy-privacy tradeoffs will be
resolved, but whether they can be resolved in a manner that better serves
the ends of privacy, however that ideal is understood and operationalized. 78 The development of
normative frameworks for evaluating privacy-privacy tradeoffs is an
increasingly urgent task for the privacy field. Third, empirical research could
assist in this task. Apart perhaps from situations where decisionmakers
have a strong threshold commitment to one privacy value over another, they
may find it useful to learn how affected parties would assess a tradeoff. And at least in some cases, this information may be
attainable. Researchers and regulators can ask people whether and to what extent they believe an anticipated privacyprivacy tradeoff would be desirable, or design mechanisms that induce people to reveal their “true” privacy preferences,
and then feed the results into a marginal cost analysis. 79 A pair of computer scientists recently tried this and found,
through a simple survey, that many social network users seem eager to trade certain forms of personal information for
greater control over photographs in which they appear. 80 The
very asking of such questions,
moreover,
may have the salutary effect of raising anticipated tradeoffs’ salience
and fostering debate.
Adherence to the rule of law is key to ensure stability and maintain
any form of human rights.
O’Donnell ’04 -- Founding Academic Director and Senior Fellow of the Kellogg
Institute for International Studies (October, Guillermo, Journal of Democracy, “Why the
Rule of Law Matters,” 15.4, 32-46)//DWB
The rule of law is among the essential pillars upon which any highquality¶
democracy rests. But this kind of democracy requires not simply¶ a rule of law in the minimal, historical sense
that I will shortly explain.¶ What is needed, rather, is a truly democratic rule of law that
ensures¶ political rights, civil liberties, and mechanisms of accountability
which¶ in turn affirm the political equality of all citizens and constrain potential ¶
abuses of state power. Seen thus, the rule of law works intimately¶ with other
dimensions of the quality of democracy. Without a vigorous¶ rule of law, defended by an
independent judiciary, rights are not safe¶ and the equality and dignity of all citizens
are at risk. Only under a¶ democratic rule of law will the various agencies of electoral, societal,¶ and horizontal
accountability function effectively, without obstruction¶ and intimidation from powerful state actors. And only when
the¶ rule of law bolsters these democratic dimensions of rights, equality,
and¶ accountability will the responsiveness of government to the interests¶
and needs of the greatest number of citizens be achieved.¶ Although in some of my
previous writings readers may find partial¶ attempts at the theoretical and normative justification of a democratic¶ rule of
law, here I make only passing reference to these matters. My¶ intention is to contribute to a discussion concerning if and
how something¶ called the rule of law, or the democratic rule of law, may be¶ conceptualized and, insofar as possible,
empirically gauged. To this end, the
concluding section of this essay proposes a set of
variables for¶ the exploration of this dimension. Please note that what follows has¶ been
formulated with contemporary Latin America centrally in mind; it¶ is of course an open question how well it might apply
outside this¶ region.¶ The “rule of law” (like partially concurrent expressions such as¶ Rechsstaat, état de droit, or estado
de derecho) is a disputed term. For¶ the time being, let me assert that its minimal (and historically original)¶ meaning is
that whatever
law exists is written down and publicly promulgated¶ by an
appropriate authority before the events meant to be¶ regulated by it, and is fairly
applied by relevant state institutions including¶ the judiciary (though other state institutions can be involved¶ as well). By
“fairly applied” I mean that the administrative application¶ or judicial adjudication of legal rules is consistent across
equivalent¶ cases; is made without taking into consideration the class, status, or¶ relative amounts of power held by the
parties in such cases; and applies¶ procedures that are preestablished, knowable, and allow a fair chance¶ for the views and
interests at stake in each case to be properly voiced.¶ The following is a minimal but significant criterion: If A is attributed¶
the same generic rights (and, at least implicitly, the same legal¶ personhood and agency) as the more powerful B with
whom A enters¶ into a crop-sharing arrangement, employment contract, or marriage, then¶ it stands to reason that A has
the right to expect equal treatment from¶ the state institutions that have, or
may acquire, jurisdiction over such¶ acts.¶ This implies formal equality, in two senses. First, it is established in¶ and
by legal rules that are valid (at least1¶ ) in that they have been sanctioned¶ following previously and carefully dictated
procedures, often¶
ultimately regulated by constitutional rules. Second, the rights
and¶ obligations specified are universal, in that they attach to each individual¶
considered as a legal person, irrespective of social position, with¶ the sole requirement
that the individual in question has reached competent¶ legal adulthood and has not been proven to suffer from some¶
(narrowly defined and legally prescribed) disqualification. These rights¶ support the claim of equal treatment in the legally
defined situations¶ that underlie and may ensue from the kind of acts above exemplified.¶ “Equality
[of all]
before the law” is the expectation tendentially inscribed¶ in this kind of equality.¶ There is another important
point: The rights and obligations attached¶ to political citizenship by a
democratic regime are a subset of the more¶ general civil rights and
obligations attached to a legal person as a member¶ of a given society. In addition
to the well-known participatory rights¶ to vote and run for office in fair elections, I am thinking of the freedoms¶ (of
expression, association, movement, and the like) that are usually¶ considered necessary to the existence of a democratic
regime. In
many highly developed countries, these and similar freedoms
became legally¶ sanctioned civil rights well before becoming political
freedoms.¶ On the other hand, strictly speaking there is no “rule of law,” or “rule¶ by laws, not men.” All there
is, sometimes, is individuals in various¶ capacities interpreting rules which, according
to some preestablished¶ criteria, meet the condition of being generally considered law.
Such a¶ situation is clearly superior to a Hobbesian state of nature or the creation¶ and application of rules at the whim of
a despot. Yet it is not enough that¶ certain
actions, whether of public or private actors, are secundum legem,¶ that
with what a given law prescribes. For¶ as I illustrate below, an
act that is formally according to law may nonetheless¶ entail the application of a
rule that is invidiously discriminatory¶ or violates basic rights. Or such an act
may involve the selective use of a¶ law against some, even as privileged sectors are enjoying
is, in (interpreted) conformity
arbitrary exemptions.¶ The first possibility entails the violation of moral standards¶ that most countries write into their
constitutions and that nowadays,¶ usually under the rubric of human rights, countries have the internationally¶ acquired
obligation to respect. The second possibility entails the¶ violation of a crucial principle of fairness—that like cases be
treated¶ alike. Still another possibility is that in a given case the law is applied¶ properly, but by an authority that does not
feel obligated to proceed in¶ the same manner on future equivalent occasions.¶ These cases may be construed as being
“ruled by law,” but they do¶ not meet the criteria we normally have in mind when using the term¶ “rule of law.” Rather,
these possibilities
indicate the absence, or at least¶ serious breaches, of a
reasonable application of what the rule of law is¶ supposed to be.
Maintaining the rule of law is key to governmental stability and
legitimacy. Not adhering to the law results in chaos
Licht et al, ’03 - Former dean of the Radzyner School of Law, Lawyer (August, Amir
N. Licht, Chanan Goldschmidt, and Shalom H. Schwartz, William Davidson Institute at
the University of Michigan, “Culture Rules: The Foundations of the¶ Rule of Law and
Other Norms of Governance,” Working Paper Number 605, 1-49) //DWB
Culturally diverse views on the rule of law as a desirable mode of governance¶ date from antiquity. Socrates and Confucius
expounded the classic and diametrical¶ positions. The
scholastic debate over the optimal
mechanisms of social order has not¶ subsided since. Collectively referred to as “social
institutions” (or simply¶ “institutions”), the rule of law, together with accountability and
curbing corruption,¶ are considered primary mediators for development.1¶
These principles are the central¶ tenets in international institutions’ policies on “good governance” and¶ “empowerment”
(IMF 1997, World Bank 2000, 2001). International bodies are¶ careful to acknowledge that reform programs need to be
attentive to national cultures¶ yet fail to specify ways to achieve this goal.¶ This study seeks to identify the foundations of
these social institutions, in¶ particular, their roots in national culture.
We view the rule of law, curbing
corruption,¶ and accountability as part of a general category of social norms referred to as “norms¶
of governance.” Social norms of governance prescribe desirable modes of
wielding¶ political, economic, or other forms of power. We postulate that the potency of
such¶ norms depends upon the prevailing, shared cultural value orientations in a society. We¶ hypothesize that in
societies whose prevailing culture emphasizes the moral equality ¶ of
individuals and legitimizes individuals’ pursuit of their own preferences, we
will¶ find greater compliance with formal legal rules, exercise of
discretionary power¶ undistorted by bribes, and feedback mechanisms of
accountability. Societies¶ characterized by such a culture provide a more transparent normative environment and
enable individuals better to plan their moves. But can we measure culture¶ reliably?¶ To test this broad hypothesis, this
study advances a new framework for the¶ discourse of culture and social institutions. We adopt established theories and¶
empirical data from cross-cultural psychology to operationalize the cultural profiles of¶ nations. We examine whether
profiles of nations on cultural dimensions can predict¶ perceived national differences in adherence to governance norms.
Consistent with our¶ theorizing, we find that they do. Emphases
on individual autonomy and
egalitarianism¶ in national cultures correlate positively with better
governance. Combining these¶ cultural variables with variables for economic inequality and a history of British
rule¶ yields a parsimonious model remarkably predictive of governance and robust to¶ various controls.¶ Results of
this study enrich our understanding of links between social¶ institutions and
culture. They show how particular types of governance institutions are¶ intimately related to general cultural
characteristics of nations. Crucially, the evidence¶ for such links is based on rigorous
empirical analysis across many nations rather than¶ on anecdotal
speculations about culture and governance in specific nations. We will¶ address the
issue of causal relations among the various factors considered, though we¶ cannot fully resolve it because these factors
interact with one another to engender¶ large-scale social equilibria. We argue, however, that for better understanding the¶
dynamics of social institutions and for informing policy-making it is crucial to¶ identify factors that may be more or less
susceptible to change. Cultural orientations¶ are relatively stable. They can therefore impede reform and induce pathdependence¶ in social change. This has implications for development and reform programs, some¶ of which we discuss.
Disregarding the law invites anarchy.
Brennan ’99 - Recipient of the Association Henri Capitant, Louisiana Chapter award
for the best paper on a civil or comparative law topic at Lousiana State University
(Summer, Maureen F., Louisiana Law Review, “Avoiding Anarchy: Bin Laden Terrorism,
the U.S. Response, and the Role of Customary International Law,” Vol. 59 Num. 4, 11951223)//DWB
International law protects the fundamental interests of states and their¶
citizens from abuse by actors in the international system. If the Bradley Goldsmith¶ argument is recognized, the
United States will make a declaration to the world that it has only limited respect for international law. When we¶
disregard customary international law in our own courts, and allow the Executive¶ to
constitutionally violate, unchecked, international customs with actions like the¶ U.S. missile strikes, we will suffer
the consequences of the precedents we create.¶ As Oscar Schachter has commented, once
we make decisions about the use of¶ force, those decisions "become part of the lawshaping process, influencing¶ expectations as to the acceptability of future
actions influencing use of¶ force." 169¶ The dissent in Alvarez-Machain recognized the risk of treating international¶
law so lightly. The dissent emphasized the Court's duty to decide according to¶ the rule of law, and cautioned that courts in
other nations would follow the¶ majority's example. 7' It then quoted Justice Brandeis, author of the Erie¶ opinion which
Bradley and Goldsmith rely on so heavily, who foresaw the¶ consequences of a position such as theirs: "In
a
government of laws, existence¶ of the government will be imperilled if it fails
to observe the law scrupulously...¶ . If the Government becomes a lawbreaker,
it breeds contempt for law; it¶ invites every man to become a law unto
himself; it invites anarchy."'
Schlag Indicts
Schlag doesn’t even take his own work seriously. Don’t buy their
“scholarship.”
Posner ’08 - Judge on the United States Court of Appeals for the Seventh Circuit in
Chicago and a Senior Lecturer at the University of Chicago Law School (Richard,
Georgetown Law Journal, “The State of Legal Scholarship Today: A Comment¶ on
Schlag,” 97 Geo., 845-855)//DWB
*We don’t endorse any of the ableist discourse of this card
When I first read Professor Schlag's essay,1 sent to me by the editors with a¶ request that I write a
brief Comment on it, I thought it was crazy; but since it¶ made some important points that were either valid
or challenging, I agreed to¶ write the Comment. When I re-read the essay more carefully while preparing¶ my Comment, I
decided that the essay wasn't crazy, but rather, as Claudius said¶ of Hamlet's ravings, "what he spake, though it lacked
form a little, / Was not¶ like madness." 2 It now seems to me a good essay (though there is much in it to¶ disagree with),
full of ingenious points often in the form of amusing riffs,¶ though one must have patience in reading it. To illustrate: in
his first footnote,¶ Schlag introduces the reader to "air guitar":¶ During the rock n' roll era (circa
1955-1980), young males developed a habit¶ of imitating their favorite rock stars by pretending to play a non-existent¶
guitar.... On the one hand, air guitar produced no real sound. On the other¶ hand, no one playing air guitar ever struck a
false note.3¶ Only much later in the essay is the reader told the point of the earlier reference¶ to air guitar:¶ The
law
review article is an imitation of the legal brief and the judicial¶ opinion. There
are, of course, some important differences. The law review¶ article is typically more intricate, more thoroughly researched,
more detached,¶ and more abstract. It is also, interestingly, written on behalf of no client, in no¶ pending case, without a
court date and addressed to no one in particular.¶ We're
talking air law here.4¶ Right on.¶ The
essay makes four important points, although it exaggerates the fourth and¶ as a result paints
too dark a picture of the current state of academic law. The¶ first point concerns the
relationship between judicial work and academic work.¶ Schlag is right that judges are not academics manqué, trying to
write law review¶ articles in the form of judicial opinions and respectfully seeking the guidance of the real academics. And
he is also right that the very different orientations of the¶ two branches of
the legal profession limit academic influence on judges. As¶ Schlag says, the first duty of a
judge is to decide the case. "Judges can remand,¶ they can decline jurisdiction, they can retain jurisdiction-they can do all
sorts¶ of things. But the one thing they cannot do is fail to decide. The judge cannot¶ effectively write: 'We don't know
whether we have jurisdiction or not. So¶ ordered.' '¶ ,¶ 5 And it follows, as he also says, that "[t]ruth and edification are¶
valued by judges ... only to the extent that these serve the end of reaching a¶ decision."6 The
judge tries to be
accurate, but that is not the same thing as¶ making a serious attempt to
attain truth or moral goodness. If, as is often the¶ case, especially at the appellate level and above all at
the level of the U.S.¶ Supreme Court, the case is indeterminate-the orthodox materials (mainly¶ precedents and statutory
or constitutional text) do not resolve it and the policy¶ considerations do not lean very far on one side or other-the judge
still has to¶ decide the case. Temperament,
ideology, life experiences, personal
identity,¶ relations with colleagues, and background knowledge are among
the factors¶ likely to prove decisive in such a case.7 Ideas will play a role, but
a supporting¶ one. The judge will not know (though he may not know he does not know), and¶ no one else will
know either, whether his decision is "right," "true," or (in a¶ moral sense) "good"; at most it will be acknowledged to be
reasonable, sensible,¶ or at least defensible.¶ So insofar
as the academic seeks truth above all
else, a law review article¶ modeled on a legal brief or a judicial opinion will
have the wrong model. "To¶ the extent that legal thinkers pattern their thinking and writing on judicial¶
discourse, the intellectual limitations will be severe.",8 Schlag rightly derides¶ academics who try
to pretend that judges are like them-try to bring the two¶ professions,
judging and academic law, together-by treating adjudication as a¶
conversation. (There is bad faith in this pretense; most academic lawyers,¶ especially at the elite law schools, have
been judicial law clerks, and therefore¶ know better.) As he pointedly remarks, "If adjudication is a kind of conversation,¶
then one should remember that it is a fairly unusual kind of conversation one¶ that is initiated by a summons, where
attendance is mandatory and which isplayed out under the threat of contempt." 9
Schlag is inconsistent – all his arguments can be applied to
themselves
Carlson 99 – Professor of law @ Yeshiva University (November 1999, David G, Columbia law
review, “Duellism in Modern American Jurisprudence”, vol. 99, no. 7) “LJH”
I began by suggesting that Pierre Schlag assumes the position of a duelist. He thinks legal
academics are either fools or knaves. But he mistakes his opponent. The villain is
language itself. Language is what causes the split in the subject, and Professor
Schlag has made the classic error of assuming that legal academics are
deliberately withholding objet petit a. They hold surplus enjoyment and are to blame
for the pain and the lack that always accompanies the presence of the subject in the symbolic
order. If this psychoanalytic suggestion explains the angry tone of Schlag's work, it also explains
the basic errors into which he falls. When one considers this work as a whole, most of these errors
are obvious and patent. Indeed, most of these errors have been laid by Schlag himself at the
doorstep of others. But, in surrendering to feeling or, as perhaps Schlag would put it, to context
(i.e., the pre-theoretical state), Schlag cannot help but make these very same errors. Some
examples: (1) Schlag's program, induced from his critiques, is that we should rely on
feeling to tell us what to do. Yet Schlag denounces in others any reliance on a
pre-theoretical self.328 (2) Schlag warns that, by definition, theory abstracts
from context.329 He warns that assuming the right answer will arise from context
unmediated by theory is "feeble."330 Yet, he rigorously and repetitively denounces
any departure from context, as if any such attempt is a castration, a wrenching of the
subject from the natural realm. He usually implies that context alone can provide the right answer
that moral geniuses like Sophocles or Earl Warren can find the answer by consulting context. 326.
So concludes Hegel in the final parts of his chapter on reason, where reason becomes lawgiver,
but grows skeptical and becomes law tester. The final lesson that reason has to give (before
ostensibly announcing itself as spirit) is that "law is law," and it just has to be accepted, because
who are we, after all, to proclaim, through the law of the heart, that we are above the law?
Schlag complains that common law judges are "vacuous fellows" when they
erase themselves so that law can speak.331 Yet, Schlag, a natural lawyer, likewise
erases himself so that context can speak without distortion. (4) Schlag warns that
merely reversing the valences of polarities only reinstates what was criticized.332 Yet he does the
same in his own work. In attacking the sovereignty of the liberal self, he merely asserts the
sovereignty of the romantic self. Neither, psychoanalytically, is a valid vision. One polarity is
substituted for another.333 (5) Schlag scorns the postulation of ontological entities
such as free will, but makes moral arguments to his readers that depend entirely on
such postulation. (6) Schlag denounces normativity in others, but fails to see
that he himself is normative when he advises his readers to stop being
normative. The pretense is that Schlag is an invisible mediator between his reader and context.
As such, Schlag, the anti-Kantian, is more Kantian than Kant himself. Thus, context supposedly
announces, "Stop doing normative work." Yet context says nothing of the sort. It is Schlag's own
normative theory that calls for the work slowdown. (7) Schlag urges an end to legal
scholarship when he himself continues to do legal scholarship. He may wish
to deny that his work is scholarship, but his denial must be overruled. We
have before us a legal scholar, like any other. The legal academy refuses to duel
with Pierre Schlag. But why should it? It lives well enough without defending
itself from angry reproaches generated from abstract romanticism. Shall
legal academics give up their jobs and their vocation at the mere invocation
of deconstruction? Why should they, especially when Professor Schlag has
not given up the Byron White professorship at his own university? The legal
academy declines to duel, but this is not to say that postmodernism is a failure. It is only a failure
if we accept that its task is to destroy in its entirety the existing hierarchy. This is not a valid task.
If we destroyed the existing hierarchy, another would spring up in its place,334 and it too would
have to be destroyed on the logic of romanticism . Destruction is a bad infinity. It never
ends because desire itself does not end. What legal academics interested in
postmodernism ought to do is build a culture of their own where their
insights are honored and welcome. To the extent we succeed, we will attract a small
number of converts who will gratify us with a little recognition and conversation . Perhaps we
will experience, from time to time, the gift of the objet petit a. We then will,
however, never take this object back by winning duels. It comes to us
accidentally and as a gift when we least expect it and, indeed, when we have
renounced all expectation of it.335 Finally, history in the sense of who gets to be an
academic hero may not be on the side of postmodernism, as Schlag has announced.336 Any such
teleology is a retroactive illusion put forth by those whom the contingencies of history have left
standing. If we simply refuse to abide by the alleged verdict of history, we are ironically much
more likely to capture the thing that currently eludes us.
Perm
Permutation do Both
Permutation do the aff and the alt in all non-mutually exclusive
instances
Prefer a legal pragmatic approach. Only reform through policy
decisions can effectively reform the legal system – all other
approaches fail.
Butler ’02 - Thomas Howerton Distinguished Professor of Humanities at University
of North Carolina Asheville (Brian E., Essays in Philosophy, “Legal Pragmatism: Banal or
Beneficial as a Jurisprudential Position?”, Vol. 3 Iss. 2, Article 14)//DWB
The worry that motivated this paper was that legal pragmatism as a doctrine might be so banal as to¶ be uninteresting or
functions as a cover for personal agendas. Hence the question - is
legal¶ pragmatism practical as a
jurisprudential position? The first step in answering this question was the¶ identification of a core set of
claims made by the legal pragmatist that were explicit enough and¶ strong enough to actually eliminate or oppose other
possible jurisprudential stances. A traditional or¶ classical picture of law was developed as a model to contrast with the
pragmatic conception.¶ Through a survey of legal pragmatist literature I came to a working set of claims that characterize¶
the stance. Legal
pragmatists first emphasize the contextual nature of the
process and advocate a¶ "return from abstraction to the concrete." Second, they
dispute the need and/or availability of¶ foundations from which to deduce
legal decisions. Third, the legal pragmatist adopts an¶ instrumental stance
towards reasoning and looks more to the future and therefore, at the same time,¶
devalues the a priori importance of legal concepts and precedent held
central to the legal model.¶ Fourth, an emphasis in placed upon the multiplicity of
perspectives available and necessary to¶ accommodate within the system.¶
Once these definitional claims were set out, the question became which of the two models (classical¶ v. legal pragmatism)
was more descriptively accurate. The conclusion was that legal
pragmatism is¶ a much more
empirically sound doctrine than the rule of law or legal model. First,
politicians just¶ do not act as if it is unimportant who becomes a judge - clearly
they think more is determining¶ decisions than just legal precedent. Second,
conceptual studies of the courts have offered up¶ alternative models that seem equally plausible. These models, though,
don’t rest upon use of the¶ paradigm rule of law picture of legal tools as much as they highlight the less isolated position
the¶ courts have in the greater context of political and social life. If the court functions as a consensus¶ maker or political
legitimator the legal model is not only false, but also a pernicious ideology¶ masking the real function of the court. This
was Sheingold’s argument. Legal pragmatism can adapt¶ to these criticisms and has the
descriptive capacity to acknowledge all these factors and/or roles of Another type of study that vindicates the pragmatist’s
stance over the traditional legal model is¶ historical treatment of the legal enterprise. It appears from the conclusions of
many of the ideals within a law as integrity or legal model are
inseparable and contingent upon¶ context. Whether neutrality becomes an attractive prospect
historical studies that¶
because of the problems with other¶ political stances or it is the case that law can be used to encourage dominant interests
in society,
the¶ legal model once again becomes false and the legal pragmatist is
vindicated as to his or her¶ descriptive accuracy. Finally, empirical studies have
shown that adherence to precedent by judges¶ in making decisions is much
less pervasive than the legal model would require. Factors thought¶ extrinsic under the legal
model are much more controlling than precedent and legal analysis. The¶ legal pragmatist explains that this is because
reasoning, just like the legal enterprise, is a much¶ more varied and heterogeneous process than usually imagined. The
rule of law advocate just has to¶ claim that really, really, precedent matters; though we just cannot show how it works. So,
from a¶ survey of empirical data analyzing courts' functioning and judicial decisionmaking it seems clear¶ that the
legal pragmatist’s stance is empirically superior to the stance advocated by
the law as¶ integrity theorist or any other variation on the classical picture of
legal reasoning.¶ But maybe the legal model functions better as a normative stance. This claim was easily
disproved¶ as well. The
legal model so distorts what is actually happening in the
court system that it results in¶ lack of effectiveness and unforeseen
consequences. The idea that every controversy has a¶ "controlling issue" is a legalistic type of reductionism that
really amounts to concept mongering.¶ The simplification such an ideology allows rules out admission of information that
could help the¶ court better see the situation at hand, and would help the court acknowledge future results of any¶
decision. Furthermore, adherence
to the legal model encourages the judge to adopt a
picture of¶ reasoning that ignores the largely probabilistic nature of life
events, therefore further limiting the¶ type of reasoning and information thought legitimate. The legal
pragmatist, because of a lack of one¶ controlling picture of the legal process,
can allow in such considerations and therefore has tools¶ available to deal
with such issues. If litigation goes on in a context where many people in addition¶ to just the named parties to
the action are effected then the admission of more information, and the¶ conceptual admission of the multiple roles that
the court has to fulfill, points
to the legal¶ pragmatist’s stance as the normatively
more desirable one to adopt. Finally, if a court adheres¶ consistently to the rule of law model, then the
chances that its remedy will be effective are reduced.¶ As Gerald Rosenberg has shown, the court must have allies from
outside its own institutional limits¶ in order to be effective when mandating significant social change. The strict follower of
the rule of¶ law or law as integrity model, though, will not be able to face such issues and therefore might be¶ completely
ineffective. What this means is that even if the court could use rule of law methods to¶ get to a "correct" decision, not
facing institutional limits of the court as a political entity could have¶ fatal effects upon the implementation of the
decision.¶
Empirical studies of judicial decisionmaking and the court system
both show the flawed nature of¶ the "classical model" of law as represented
most centrally today by Dworkin’s "law as integrity." At¶ the same time, all the data are not
only consistent with legal pragmatism’s main tenants but also¶ reflect good reason
for adopting legal pragmatism as a normative stance from which to study
and¶ conceptualize judicial decisionmaking and the legal institution in
general. So, legal pragmatism is,¶ indeed, a useful jurisprudential position.
Beyond this, it is a substantive position that promises to be beneficial if adopted in practice and not only in theory.
Legal pragmatism promises to make legal¶ practice a more empirical and
less dogmatic profession. It furthermore promises to force legal¶ professionals and the legal profession as a
whole to provide data in order to justify their claims to¶ social efficacy. Just as Dewey argued that worship of an idealized
picture of Reason can get in the¶ way of furthering the quest for more reasonable results, worshipping
an
idealized conception of Law¶ and Legal Professionalism can get in the way of
bringing about a more effective legal system,¶ characterized as one of many
humanly created social systems aimed at the resolution of social¶ conflicts
and the pursuit of justice.
Cooperation is key to make any effective change. Creating a further
divide between the issues just makes the situation worse.
Christensen et. al, ’11 - Associate Professor and Ph.D. Director at University of
Georgia (Robert K. Christensen, Holly T. Goerdel, Sean Nicholson-Crotty, Minnowbrook
III: A Special Issue, “Management, Law, and the Pursuit of the¶ Public Good in Public
Administration,” 125-140)//DWB
The tension between a public administration grounded in law and one grounded in management ¶ has been historically
persistent and increasingly evident in contemporary scholarship.¶ The substantive
effects of the
tension between legalism and managerialism range from¶ marginal spill-over
and chilling effects on managerial discretion, to more significant hostilities¶ leading
to crises of accountability, legitimacy, and even harm to those most
vulnerable¶ in society. This is particularly unfortunate at a time when rapid changes in the¶ economic, social,
and political environment are stimulating an equally rapid evolution ¶ of public management strategies and when
adopting market and private sector tools threatens¶ to erode much of the
democratic-constitutional foundation upon which government¶ rests.¶ As with
preceding Minnowbrook gatherings, Minnowbrook III did little to resolve the¶ relationship of
law and management in public administration in the United States. Our¶ general
discussions reflected a view of law ill at ease in a public administration still actively¶ pursuing market-based management
reforms, evidencing
the notion that law and management¶ are somehow
working at cross-purposes in the pursuit of the public good. Although¶ administrative
changes during the current financial crisis may actually somewhat deemphasize13¶ reliance on market-based
mechanisms,
our view is that the tension between¶ law and management has and
will endure until scholars and practitioners pursue a more¶ integrated
approach.¶ Minnowbrook III participants did generally agree on the merit of an
approach to public¶ accountability that includes market-based efficiency,
program performance, and law-based¶ democratic values such as equity and
transparency. Building on these conversations, we¶ formulated the three-part approach, presented here, in which
the legal and managerial¶ approaches to public administration might be brought together. Rather than claim complete¶
novelty, we emphasize that the generally pessimistic tone of scholars regarding the potential¶ and continuing tension
between law and management in very recent scholarship has¶ motivated our renewed challenge to the discipline to
conceive of these approaches as mutually¶ stimulating and reinforcing. In the end, we believe our proposal’s primary
implication¶ is the simultaneous achievement of public service delivery that
is efficient, effective,¶ and defendable in the constitutional democracy of the
United States.