Barack Obama ends clenched fist period

This post fuses critical legal theory with my analysis of Barack Obama's presidency.


Critical legal theorists argued that the "myth of rights" from classical rights theory is essentially providing protective cover for entrenched forces of racism, sexism and class domination. These critics highlight the indeterminacy of rights and their paradoxical tendency to legitimate oppression by creating a false sense of formal neutrality and equality. This is why the election of Barack Obama, the protective cover, should concern you.

For example, the phrase "all men are born equal" was embedded into the the founding documents of the United States. But today, as it was before the 1860s, this promising phrase holds little in terms of actual practice. Barack Obama is black, but so are over 1 million out of 2 million in the American prison system. The prison system is expanding to hold 5 million by 2010. The promise of equality pacified populations hurt by discrimination, and helped the oppressing population turn a blind eye to the harm done. "All men are born equal" gave the promise of change without following through. African Americans fought wars under regimes that mistreated them horribly. Though the promise of freedom and equality was present, it still is not practiced.

The critical legal theorists do not attack the 'constitutive' effects of having rights in a liberal democracy per se. What they do is examine the actual effects of the law on consciousness and action. Whereas classical rights theorists - Locke, J.S. Mill, Hart, etc. - provide the cornerstone for liberal legal theory, they cannot abolish social forces that inhibit equality. Liberal legalism much of the time creates a sense of 'the self' that is illusory and ultimately destructive, because ordinary citizens can find themselves locked out of the formal capacity of the law to safeguard their rights.

The Supreme Court's anti-discrimination law "normalizes the existing patterns of inequality and hierarchy," argued critical legal theorist A.D. Freeman. Mark Tushnet wrote that "It is not just that rights-talk does not do much good. In the contemporary United States, it is positively harmful." Feminist and critical race scholars also address the more explicit effects of rights, rather than the constitutive (promised) effects of rights on individuals.

On the other hand, the effect of the civil rights movement's confrontations with American society on the identity of African Americans was positive. To the extent that rights were associated with a "powerful combination of direct action, mass protest, and individual acts of resistance, along with appeals to public opinion and the courts", they were successful. Without a decisive attack on public consciousness through action, the classical rights theories actually reinforced myths and stereotypes about social differences.

With the election of Barack Obama, there is a connection between critical legal studies and the 'constitutive' effect of embracing the first African American as President of the U.S. The implication that Barack Obama is part of - or somehow is a leader in - the civil rights movement, could not be more damaging. A figure within the political system cannot take the place of or be a leader in any popular movement. That is co-option. The election of Barack Obama will most likely bring an end to confrontational approaches to social difference before it ameliorates real social differences. And if confrontational approaches have historically won decisive political victories in areas where liberal legalism has failed, the election of Barack Obama would soften the confrontations, and hence have little or no effect on society.

picture/text from photoblog on fffff.at

Spring Break 2007 on Trial

A friend of mine is on trial today, tomorrow and Wednesday for protesting the war in Iraq last year. A lot of people who were arrested during the non-violent resistances to seaport militarization in Tacoma, WA are going on trial. On one particular weekend in Tacoma, police had ordered crowds of people to disperse from an area that was not actually being used to ship military Stryker vehicles (vehicles the U.S. Army is using more commonly in Iraq now). So it took everyone off-guard when police responded as if these symbolic resistances were somehow blocking the shipments. For three nights in a row the police peppered the crowd with rubber bullets and unleashed tear gas. The protests went on for twelve nights. My friend can be seen in this video sitting down in front of the police line before he was arrested. He spent the first days of his Spring Break in the city jail.

"Eminent Domain" or "Police Power"?

I've dug up an old case on the issue of property law and decided to digest it.

In 1922 a landmark case helped form the justice department's opinions about eminent domain. Oliver Wendell Holmes, who delivered the opinion of the court, said that in certain situations, according the contracts of law, one must yield to the police power of the state. "Police power" in the sense that Holmes is using it refers to the "regulatory taking" of property through contracts that are facilitated by the government. This is different from eminent domain since that kind of regulatory taking requires compensation by the government. Police power does not. Government can proclaim contracts between private parties invalid if they are damaging to the public interest.

The case in point, Mahon v. Pennsylvania Coal Company, appears to be justified in its reasoning. Mahon had purchased surface rights to a parcel of land, which he inhabited. The Coal Company later wished to mine for coal under Mahon's property, and later, under Pennsylvania law (i.e. the Kohler Act) mining that could potentially cause damage to human habitation was forbidden. Mahon plead to the court to disallow the coal company from mining under his property, and the Supreme Court reversed earlier decisions and upheld the principle of regulatory taking.

Facilitating property rights and disputes is perhaps one of the few good uses of government. In Mahon v. Pennsylvania Coal Company, the court merely facilitated a misunderstanding between contracting parties as to what limitations a "surface right" had implied within it. Significant diminution of property value or damage to human habitation, Holmes said, is a right that surface owners have regardless of the explicit terms of contracts. With the development of new technologies and new sources of property use, which require constant revision of contract law, agreements which did not contemplate future uses need to be arbitrated by a court system in the event of a dispute.

The court refers to this sort of "regulatory taking" as police power, and yet it is later used to justify eminent domain, which is the government's active taking of property in order to fund public developments. This I don't understand. Since states have the power to arbitrate property disputes, it does not follow that they have the power to arbitrate property usage altogether. It puts states on a slippery slope towards complete control of land properties. In forming the opinion of the court, it is difficult to see how the justices could have reasoned that, since there is one legitimate use of government power, that there are further uses of that power which extend beyond mere arbitration and into the realm of annexation.

Order Without Law

Last week my university passed a new ordinance on hate speech. As opposed to the university's approach, the approach I would take to hate speech is not top-down. The best way I think to combat the foundations of hatred is to confront it when you see it. Creating far-reaching rules about speech conduct merely creates a legalistic environment and does not attack the social foundations of hate. By actually confronting hate speech one creates a social environment where everyone is more aware of the impact they have on other people. I have done this on several occasions. Hatred can become a very thorny problem, indeed, and some broad rules do need to be in place so that campus communities are safe environments. In general, however, I am optimistic that there can be order without law.

Tyrannical Hedonism

The argument that one is obliged to obey the law because it is backed by the threat of force does not allow for civil disobedience even in the most egregious cases where civil unrest brews. That view is legal positivism. Contemporary writers have attacked that view considerably. Not too many legal scholars would consider themselves legal positivists. But many consider themselves utilitarians. Some, who think they are attacking utilitarianism, actually come out in favor for a utilitarian view. Utilitarianism is embedded in our society so much that even when we think we are not advocating it, we are in some sense.

In the essay The Justification of Civil Disobedience, John Rawls assumes in his argument that the system in which citizens are civilly disobeying is a "nearly just" system. This already begs the question, but let's consider the rest. He then asks us to imagine a place in which the same degree of injustice is experienced by everyone in society, and whether disobedience would entirely undermine the government. Rawls says obedience should (and would) not happen, for the sake of governmental integrity.

What is this business about governmental integrity? This is a utilitarian point of view, though Rawls is not known as a utilitarian at all, and the basically stated that the needs of the government outweigh the rights of the citizens.

But how did it come to that? Rawls' argument does not meet the "fairness condition", one of Rawls' own creations. Or rather, it does not exhaust the fairness condition. It compromises the "justice for all" principle as well since justice cannot be fairly distributed to all. This is indeed a utilitarian element in Rawls, I have come to see. The principle that there should be equality under the law is mistaken here for justice for all, and ends up permitting conditions of injustice for all.

The careful mixture of equality and rights in Rawls’ work produces a cacophonous blend of inequality and injustice through systemic rights violations and at great costs to autonomy. All for the sake of governmental integrity. In a nearly just system, whatever that means to our present sensibilities, we cannot rebel or revolt or make spectacular demands because government is already nearly just. This is much more like a utilitarianism of rights view, where rights are intended to be maximized, but not accepted as all-encompassing trump cards. One cannot say "Look, this is my right!" because there is a nearly just governmental office in the way.

Utilitarianism sneaks into our conceptions of the law all the time. Some are overtly utilitarian like I've said, but others think their views are more individualized--while in secret they are calculating and maximizing inside their heads from a social welfare point of view. The legal philosophers I agree with argue that rights are trump cards, and there is nothing that any government can do to take away one’s trump card. This provides the only legitimate basis for disobeying one's government, while utilitarianism easily lends itself to government control and subordination. It understands civil disobedience in a way that would not give rise to various forms of tyranny. The tyranny of utilitarianism or the utilitarianism of tyranny.

That I found this element in John Rawls, one of the most revered American legal scholars, is evidence that if there were ever an acceptable model for tyranny in our present age, utilitarianism is certainly it.

The Concept of "Innocent" in Utilitarian Jurisprudence

Does rule utilitarianism give an adequate explanation of why we should not punish innocent people?

One can think of rule utilitarianism as a system of unmitigated statism and legal jurisdiction with certain rules and limitations attached to it. If punishment can be shown to promote effectively the interest of society it is justifiable on the utilitarian point of view, otherwise it is not justified.

On the utilitarian point of view, however, the extent to which the state and the courts are willing to prosecute determines the degree of guilt involved. If the punishment of an innocent person can be proved -- utilitarianism proved? -- to promote greater happiness or less pain in society overall, then it should be permitted. So the concept of what it means to be innocent in this system of instrumental jurisprudence is wholly dependent on the outcomes it would produce.

But the utilitarians are far more clever than that. Only Bentham was so naive as to suggest this kind of unmitigated hedonism. Utilitarians now have incorporated checks and balances into their theories of punishment. As John Rawls points out in his essay Two Concepts of Rules, "utilitarians agree that punishment is to be inflicted only for the violation of law." The utilitarian, accordingly, seeks to limit the extent of punishment by a system of rules.

Yet aren't utilitarians themselves creating the rules? The rules themselves ought to also be created on a utilitarian calculus, and this would put us in the same position as before. Seeing as it might be the case that punishment of an innocent person could lead to greater happiness, why create a rule that would inhibit this? Rawls says that utilitarians hold that "no official should have discretionary power to inflict penalties whenever he thinks it for the benefit of society."

On this account, Rawls believes he has reconciled the retributive view with the utilitarian view. Judges decide cases base on retributive forms of justice. Legislators create rules based on a utilitarian form of justice. And the utilitarian justice has primacy.

The problem Rawls is concerned about is whether utilitarianism in general, as the legislator's prerogative, justifies too much. It would, for example, justify institutions that by their very nature condone the condemnation of the innocent. It is, as Rawls says, an "engine of justification". He wants to make sure, however, that there are clear rules set in place, and clear rules of recognition specifically, so that legislators know who has the power to decide such matters and by what authority, for all of this "must be written into the rules of the institution".

What Rawls calls "telishment" is the unjustified punishment of innocent people for the greater happiness of the rest of the society. Rawls says we should come to doubt our justice system if it had ever been recognized as one that telishes it citizens rather than punishes them for offenses they are guilty of. He says that it is highly unlikely, given that we would feel sorry for innocent people, that we would allow a system of telishment to go on.

Rawls ends on the idea that the system of utilitarian punishment is justified, and that it would be unlikely to end in a form of "telishment", based on his own ideas of what a proper sensibility in society would be like. He says there would be "less danger" of any of that happening because we would give requirements to the arbitrary forces in government not to act in an unmitigated utilitarian way.

It appears, however, that the ultimate justification for a system like this depends on the credibility and the 'ascertainability' of the requirements themselves. The requirements cannot be chosen on a utilitarian calculus, because then we would have justified the telish operations we are trying to avoid. The project here rests on something signified that is outside the justifications that utilitarianism provides, and for this reason it cannot be said to be a utilitarian justification. It relies on something else, something like a set of rules based on a principle that would simply not allow some acts to be permitted by government.

This would not appear to be a consequentalist view at all. And a retributivist view, as Rawls has pointed out himself, is a view that the judges hold, not a view that the policymakers or legislators hold. The view of the legislators and policymakers, then, cannot be utilitarian. It must be some form of Kantian or rights-based point of view, that cannot be persuaded by the utilitarian calculus.

How Do Judges Decide Hard Cases?

Ronald Dworkin, opposing the legal positivism of H.L.A. Hart and John Austin, would have approached the Sims’ case much differently. Instead of looking to law as law, Dworkin would have invoked what he calls the integrity of law by having us ask what the principles of law behind the decision is based on. These principles are said to trump the laws assumed by their position as being sources of the laws themselves. The rule that free states must return fugitive slaves to slave states is based on the policy of states’ rights, as we have said. However, in Dworkin’s hierarchy of legal standards, there may be overriding principles, such as the principle that all human beings shall be treated equal, which trump the policy of states’ rights.

It is an integral part of the concept of principle that it has this dimension of overriding weight, which judges are presumed to take into account when using their discretion. Justice Shaw cites principles and policies as justification for the application of rules, to be sure. But if states’ rights is argued to be a principle unto itself, though it may be disputed whether some principles have more weight than others, Dworkin would argue that a Herculean judge, a judge who is omniscient with respect to law and legal decision-making, would use his discretion and conclude that principles of equality would override states’ rights in a hard case like Sims’.

To Austin, who would have decided that that principle of States’ Rights holds for the Fugitive Slave Laws, critics of positivism like Dworkin would have been content to point out that he had not taken account of consideration the measure of these principles and that the plaintiff was entitled to have Shaw do so. Dworkin means more, then, by holding judges and promulgators of the law to the standards of law instead of treating lawmaking as something we are unable to criticize. For Austin, criticism merely amounts to equivocating upon “hate” language and confounding us with divine theories of justice, which we can never measure. For Dworkin, Shaw is “institutionally obligated” to consider principles that other judges, especially exemplar judges like Hercules, would have considered.

Austin, it may be said, holds his judges to the same standards as they themselves promulgate. When he says that the law is “circuitous” upon judges, however, he merely means that it is applicable to the judges as well. Yet this is only to say that their decisions may have consequences for themselves, and that judges as well as the parties in the trial are therefore bound by them. Dworkin means to say that not only are judges bound to their own law, but that if no clear principle or policy is applicable, instead of using tautological discretion out of context with the legal standards, judges must use appropriate discretion when deciding cases.

The unsatisfying aspect of Austin is that nowhere does he discuss legitimacy, while all the time he discusses legal validity. Validity for Austin is legitimacy, but everywhere it lacks the sort of integrity that Dworkin discusses. The only appeal to morality that one can make on Austin’s account is to utilitarianism. Yet later we told that utility is no measure for divine will, and therefore no measure for deciding hard cases. The relevant aspects of Austin’s work would lead us to conclude that judges make their decisions based on positive morality which is only an aggregate of the mere opinions he is trying to dissuade us from. The relevant aspects of Dworkin’s work would allow us to make appeals to principles as codified in a legitimate source of politics, like a system of democracy. This is, in the end, much more attractive, since it gives judges the ability to make decisions rooted in proper interpretations of history, and that if we understand our principles properly, we can be sure that there be a right answer to our hard cases.

Judges who decide "hard" cases

Consider the Fugitive Slave Laws during the antebellum period of American history. How would we expect judges of the past to decide these cases, where free states are obliged legally to send fugitive slaves back to their owners in slave states? What sort of theory of jurisprudence might we expect them to follow?

Thomas Sims was an African American who escaped from slavery and fled to Boston. He was arrested under the Fugitive Slave Law and appealed his case to the Supreme Court under a writ of habeas corpus to challenge his case before the court. The opinion of Justice Shaw in the Sims’ trial makes reference to the notion of states’ rights as a rule of law in the United States. Shaw writes that states have made implicit treaties amongst themselves, as implied by the constitution and its sources of law, that they will respect each other decisions and rights-claims to fugitive slaves. It is an implicit “act of state” doctrine that only when rights-claims are invalid by the light of the Constitution, the secondary rules of obligation, should judges uphold fugitive slaves’ claim to resist expedition to their previous owners in free states.

Chief Justice Shaw makes an appeal to the existing positive law, and to the principle of states’ rights in the case. Legal Positivists like John Austin would certainly have condemned Thomas Sims disobedience to the system of positive law and respected the court’s decision to uphold the acts of state in slave states like Georgia. Under Austin’s account, Thomas Sims’ is obliged to obey every command he is given, and correlatively, he has a duty to obey these commands. Legalistically, the Supremacy Clause of the Constitution guarantees that treaties ratified become the “supreme law of the land”, and Shaw implies that this treaty is applicable between states. By entering into this treaty, Shaw argues, Massachusetts must respect the decisions of Georgia. What guides Shaw’s decision is not mere opinion, such as expressed by a vague customary law based in broad sources and interpretations, but based in positive morality as it is, which is to say that in Sims’ case it is based in the sanction of the court.

As much as this is a decision based on Shaw’s own discretion, and level of understanding about the principles that ought to guide him in this process, Austin would reply that ‘law is law’ and as subjects in the relation between sovereign and subject, we are obliged to obey the law. The court’s decision is supported by promise or threat of injury if not obeyed. The idea that laws as such give us a reason to feel obliged (or to accept an internal point of view) is a truth so “simple and glaring” that “it seems idle to insist upon it.” For Thomas Sims to challenge the Fugitive Slave Laws is one thing, but if we insist they are, as the natural lawyer argues, not in fact laws (implying they are non-binding upon us) then we are talking “stark nonsense” and only being mischievous. If we say we “hate” the Fugitive Slave Laws, at least we are being honest, but we often say that they are not divinely-revealed laws as a way of abusing legal language.

Austin's view is very unattractive, and Ronald Dworkin's critique of legal positivism and his account of how judges decide hard cases is convincing.

Human rights are not imperialistic

While the notion of human rights as "universal" is a legal fiction, as I have said in a previous post, I would like to argue against the claim that imposing the basic conventions on human rights, like the Universal Declaration of Human Rights, is an act of cultural imperialism.

Yes, the notion of human rights is a politically "liberal" one -- that is, within the liberal tradition, which includes John Stuart Mill and John Locke -- and this is largely a Western liberal project. This is supposed to signal to us that it should only be accepted and practiced in Western liberal democracies. We therefore cannot make the claim that human rights conventions should be legitimate in other cultures. I want to argue against this.

However, instead of arguing from evidence within other cultures, like scholarship in Islam or Southeast Asia, about which I risk misinterpreting common practice, I would like to articulate this point using Western liberal ideas. Although this is a relatively unsympathetic and somewhat "hard-line" approach to other cultures, it is not self-defeating, and we should feel compelled to take this hard-line approach if our understanding of human rights is such that we think they should be upheld everywhere in the world. I describe this as hard-line because it looks within the very tradition which is being criticized for justification of its practice rather than looking to the plaintiff's culture for reasons and ambiguities leading to compatibility with Western liberal ideas. So my aim is to establish the Western idea of human rights everywhere, although I disagree that human rights are universal. So I will call this a kind of soft universalism.

Based on the work of the liberal tradition, we can defend the notion of human rights against the claims of imperialism using liberal justifications such as those put forth by Alasdair MacIntyre. The basic justification for Western practices goes something like this. We can explain what our culture is doing, and what other cultures are doing, better than other cultures can describe it themselves. After all, this is the basic justification for Western disciplines like cultural anthropology and sociology. A tribesman in New Guinea cannot explain what the Western anthropologist is doing, or why, and what the motives are.

Yet the Western anthropologist can explain what the tribesman is doing, and why, and what his motives are. The tribesman can only explain what he is doing, and he explain how to live the life of tribesman. The explanatory tools of the Western anthropologist are far more powerful than the tribesman's since the anthropologist relates this information to a wide panoply of scholarship which can explain why, in fact, the tribesmen live there in the first place, their migratory patterns, their marriage behaviors and so on. In MacIntyre's view, the culture with the greatest worldliness appears to have the greatest explanatory power, whereas those who are mostly provincial can explain very little about the world they live in.

We have all sorts of disciplines in the Western liberal tradition which purport to explain social phenomena in every culture. And these come with the basic assumption that our tools are in fact so powerful and compelling that we can use them to describe, predict, and control (our scientific method) all social phenomena. If other cultures would wish to have the same explanatory powers, they would presumably embark on the same kind of project that Western liberalism has, beginning with the development of the kind of encyclopedic thought in the Enlightenment Era.

The critique that the concept of human rights developed from Western liberal practices, and that somehow this renders them invalid in other parts of the world, is therefore grossly inane. Our Western thinkers, to whom appeals about human rights are always made, are attacked with ad hominems and genetic fallacies about their own historical contexts. British thinkers like Mill are said to be implicated in the running of empire, the British Empire. This does not invalidate his work, nor would it invalidate any work. Only once it has been invalidated can we use Foucaldian explanations to describe its failure. Some critics, in fact, go so far as to argue on the basis of religion that, since Western thinkers have historically been socialized into Christian societies, their ideas are unacceptable. Iranian and Egyptian legal scholars have made this claim.

Yet Nietzsche, the son of a Lutheran priest, has made this claim as well. So we already have exceptions to the imperialist critique. In 1981 the Iranian representative to the UN, Said Rajaie-Khorassani, argued that the Universal Declaration of Human Rights was a "secular understanding of the Judeo-Christian tradition" which could not be implemented by Muslims without trespassing Shari'a Law.

If we look at the fundamental rights listed in the Universal Declaration, we see nothing by way of cultural imperialism. Unless of course, inhumane practices in other cultures must be preserved at a cost. The declaration cannot be seen as an attack upon other cultures, since of course, it is also an attack upon Western liberal democracy as well. Very few Western liberal democracies uphold human rights.

If human rights conventions are something to which a culture cannot commit, one only needs to look at the countries which have committed and thus far have not complied wholly. One purpose of such a convention is to use it as a tool to badger human rights violators into compliance. If a country cannot hold fair trials in their territories or cannot imagine a world in which they cannot torture their prisoners, this is not a failure of the human rights declaration, it is a failure of that country.

This is how it should be viewed. The human rights declaration holds every member to a higher standard, and this standard is not something that should be negotiated in ways that compromise its integrity.

An 'Inner' Morality of the Law?

Most political demonstrations that actually try to do something are illegal. And the usual reply to direct action is strict legalism, which doesn't address the arguments that protesters make. It's tiring when legalism itself is so often cited as if 'morality' were bound to it. Morality and law are two separate things. But to push the thesis even further, there is no morality. This is something I'm comfortable with saying. There is no morality. There is only moral sentiment. And these sentiments are not universal. You cannot speak of duties to any of these things--'morality' or 'law'--insofar as they do not exist or there is nothing binding about them. So my Kantianism doesn't go very far. Still, if you had a duty it would be to preserve the nebulousness of 'morality' foremost and 'law' second.

Some have suggested, however, that there is an inner morality to the law itself. I tend to agree with this argument that Lon Fuller puts forth, but only to a certain extent. On this account, a legal system itself has to meet certain conditions which then make it even functional, and only when it's a functioning legal system can we talk about whether there is morality to its external practices and whether we are bound to it. Fuller argues for a natural law theory about this legal system. But I disagree: there isn't any kind of morality built into the system. There is nothing inside it or coincidental with it. There are only relativistic moral sentiments of those legislating, and the historicism about the history of lawmaking attests to this. But there is an interesting point to make here which doesn't leave us completely in the dark. Meeting these conditions certainly makes a legal system useful and functional for legislating. And that is the first objective--isn't it--to make legal systems functional? At this point, nobody is worried about whether we're doing what is "morally right": because it is preferable to have no legal system at all, then to have one in which, for example, cases are decided by the King ex post facto at the end of each year. We would not know which rules to follow before breaking them! So our first question is simply a question of functionality and structure. We can then ask, for what purpose should the legal system have a purpose? And that, I would say, is to facilitate a society where no one person's rights are violated for the sake of anyone or anything else.

Law basically has three functions then. Maintaining property rights, human rights, and enforcing contracts. I don't think we are truly bound to any system which demands more of us than this. Such a society ensures that no individual rights are violated. But in fact, we can pressure this further and ask whether we are even by nature bound to a system which demands these basic rules? It is possible to live outside the system entirely. Individualist Anarchists like Murray Rothbard would certainly argue for it. Yet I suppose it depends on what your sentiments are. But here is something firm: having a structure to assert the trustworthiness of a contract is certainly useful, and so is having the right to property and protection from invading marauders. So in this way, the minimal state has an attraction to it, and those on the outside would want membership. It isn't coercive in any way.

But back to the political demonstrations, which is really what I want to make a point about. For those of us who believe we live under a tyrannical regime by the very nature and structure of our legal system, have we any recourse but to violently oppose our government? We do not like this policy of war-making in our name. Our elected officials have failed us. There is corporate lobbying in the White House. These are all things for which I oppose my government. The petitions for which we have signed have not been considered thoughtfully, and it isn't simply 'representation' which is lacking. Have I, then, an obligation to follow the rules of my government obediently? To the extent that following these rules are useful, yes. But its external laws (that is, everything legislated) never seemed morally binding to me in the first place. To the extent that change is more important than temporary comfort, the obligation seems null.

JFK said, "Those who make peaceful revolution impossible will make violent revolution inevitable," and I believe this is certainly true. Those who make peaceful revolution impossible will make violent revolution inevitable. Is it true then that peaceful revolution is impossible? Consider what has happened in the last six years since 9/11. No one outside the Congress and the special war cabinets decided whether there was indeed a justified causus belli for the invasion of Iraq. The petitions of citizenry have no effect, and individuals' rights are being violated. Will peacefully signing more of the petitions change anything government is doing to violate these rights? No, this is impossible at this point. General Petraeus has said we ought to spend ten more years in Iraq, and this is unacceptable if you share the sentiment. And so, affirming JFK's point, and realizing that the encouragement for 'peaceful change' is the osing argument, then indeed a violent revolution is inevitable at this point.

Human Politics, Post-UDHR

International support for human rights was enshrined in the Universal Declaration of Human Rights in 1948. But the declaration proved only to be a great statement of principles, and too vague to be useful as a legal instrument. In 2004 the only countries that did not violate human rights significantly were the Netherlands, Denmark, Iceland, and Costa Rica. The 2007 Report on the United States, for example, includes such familiar abuses like the Military Commission Acts (not just 2006), secret and abusive detentions around the world, Guantanamo Prison, unlawful killings by US forces outside of the US, detention of enemy combatants inside the US, torture (various), cruel and inhumane treatment in domestic prisons, prisoners of conscience, and death penalty abuses.

But aside from the UDHR of 1948, we have more documents alleging to say specifically what rights humans have. During the 1960s, two more covenants were developed out in an effort to give the declaration some substance: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

In 1976 the United Nations adopted both of these. But they are largely ignored except by the few countries who have made the list. "Non-binding," we say. The United States uses this phrase, in fact, to describe the entire corpus of UN legislation, not just human rights covenants.

That's how our government justifies avoiding UN Resolutions against our invasion of Iraq which would otherwise render the war of aggression illegal. For example, on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (to which the US is in fact a signatory) doesn't apply to places like Guantanamo because we say the convention "non-binding". And what is the purpose in signing it? Why sign the Munich Agreement in 1938 if you're just going to turn around and invade Poland?

In 2000, President Clinton signed the Rome Statute of the International Criminal Court (ICC), and in 2002 President Bush said the United States does not intend to become a member of the treaty, and that apparently the United States has no legal obligation arising from its signature on December 31st, 2000. So our government can withdraw itself even from treaties that are "legally binding", (although it doesn't use "withdraw" in its official terminology, it says it "nullified" the previous president's signature). The United Nations has not removed the United States from the list of original signatories, however.

Yet if we agree with the treaties and covenants we have signed in the past, and are committed to them, what do we have to fear? Of course, the fear is that human rights abusers like Dick Cheney, Donald Rumsfeld, and war criminals like George W. Bush would most likely be brought to the ICC in the Hague for their conduct in the last seven years. The ICC has said this openly. If the next president were to become a signatory to the Rome Statue, and join the ICC, he or she would now have to repeal acts like American Service-members Protection Act, which besides making our troops "exempt" from ICC negotiations, also prevents Americans from training the militaries of any country that is an ICC signatory, and withdraws US troops from all peacekeeping missions where the ICC has jurisdiction.

This rules out most peacekeeping in Africa, as well as various other missions that are not vital in the "War on Terror". Our nation has been at war for six years in Afghanistan, and four years in Iraq. And we have been a major human rights abuser in Guantanamo since 2002. I hope this sounds like hypocrisy and lack of commitment on the United States' behalf. Please read these links because this information is sadly true, and without organizations like Amnesty International and Human Rights Watch to point out our abuses, this information would be unknown.