Law & Paneir

Holy Cow and election

2011-12-24T06:34:00.000-08:00

Cow............holy???

Condo

Land

Car

Projects

Election..................................and

Voters..........

Country....................Malaysia...

Who cares???

Election, Constitution and Rights

2011-12-02T06:43:00.000-08:00

Law and nature;

Men and Law;

Men and nature.

Interrelated and corelated.

But most of the time people who are walking on the corridor of powers always isolated themselves with the nature.

Nature have taught us great things. Fairness always prevailed. No one can denied anyone's rights. Truth is always supreme.

The recent legislation on public assembly is does not complied with the requirements of nature, constitution and us.

Why this legislation is created? A lot resentment and all is down to upcoming election.

Can we just forgo our rights which enshrined under the constitution to acheive a single motive?

I have no answer for this question.

cheers.

Human Rights & Terrorism: An Overview

2011-12-02T06:38:00.000-08:00

Introduction

Human rights are relevant to terrorism as concerns both its victims and its perpetrators. The concept of human rights was first expressed in the 1948 Universal Declaration of Human Rights, which established "recognition of the inherent dignity and inalienable rights of all members of the human family." The innocent victims of terrorism suffer an attack on their most basic right to live in peace and security.

The suspected perpetrators of attacks also have rights, as members of the human family, in the course of their apprehension and prosecution. They have the right not to be subject to torture or other degrading treatment, the right to be presumed innocent until they are deemed guilty of the crime and the right to public trial.

The "war on terror" focused human rights issues
The Al Qaeda attacks of September 11, the subsequent declaration of a "global war on terror," and the rapid development of more stringent counter-terrorism efforts have pitched the issue of human rights and terrorism into high relief. This is true not only in the United States, but in a number of countries who have signed on as partners in a global coalition to crack down on terrorist activity.

Indeed, following 9/11 a number of countries that routinely violate the human rights of political prisoners or dissidents found tacit American sanction to expand their repressive practices. The list of such countries is long and includes China, Egypt, Pakistan and Uzbekistan.

Western democracies with long records of an essential respect for human rights and institutional checks on excessive state power also took advantage of 9/11 to erode checks on state power and undermine human rights.

The Bush Administration, as the author of the "global war on terror" has taken significant steps in this direction. Australia, the UK and European countries have also found advantage in restricting civil liberties for some citizens, and the European Union has been accused by human rights organizations of facilitating the rendition—the illegal detention and transport of terrorist suspects to prisons in third countries, and where their torture is all but guaranteed.

According to Human Rights Watch, the list of countries who found it to their benefit to use terrorism prevention to "intensify their own crackdown on political opponents, separatists and religious groups," or to "advance unnecessarily restrictive or punitive policies against refugees, asylum-seekers, and other foreigners" immediately following the 9/11 attacks includes: Australia, Belarus, China, Egypt, Eritrea, India, Israel, Jordan, Kyrgyzstan, Liberia, Macedonia, Malaysia, Russia, Syria, the United States, Uzbekistan and Zimbabwe.

Human rights for terrorists are not at the expense of victims' rights

The focus by human rights groups and others on the preservation of terrorist suspects' human rights may seem jarring, or as if that focus comes at the expense of attention to the human rights of terrorism's victims. Human rights, however, cannot be considered a zero-sum game. Law Professor Michael Tigar put the issue eloquently when he reminded that governments, because they are the most powerful actors, have the greatest capacity for injustice. In the long term, an insistence that all states prioritize human rights and prosecute illegitimate violence will be the best defense against terrorism. As Tigar puts it,

When we see that the struggle for human rights in all the world is the surest and best means to prevent and to punish terrorism properly so-called, we then understand what progress we have made, and we will see where we need to go from here.

Comments;

By having laws that restarin the fundmental rights of people, is justice is done

Fueling Terror

2011-11-28T09:38:00.000-08:00

Much has been reported about the complex system of terrorist financing and the money trail facilitating the September 11 terror attacks. Individuals and charities from the Persian Gulf--mainly from Saudi Arabia--appear to be the most important source of funding for terrorist organizations like Al-Qaeda. According to an October 2002 Council on Foreign Relations report of an Independent Task Force on Terrorist Financing, Osama bin Laden and his men have been able to accumulate millions of dollars using legitimate businesses such as charities, nongovernmental organizations, mosques, banks and other financial institutions to help raise and move their funds.

How does it work? Take Saudi Arabia for example. This Gulf monarchy is a rentier state in which no taxes are imposed on the population. Instead, Saudis have a religious tax, the zakat, requiring all Muslims to give at least 2.5 percent of their income to charities. Many of the charities are truly dedicated to good causes, but others merely serve as money laundering and terrorist financing apparatuses. While many Saudis contribute to those charities in good faith believing their money goes toward good causes, others know full well the terrorist purposes to which their money will be funneled.

What makes penetration and control of money transactions in the Arab world especially difficult is the Hawala system--the unofficial method of transferring money and one of the key elements in the financing of global terrorism. The system has been going for generations and is deeply embedded in the Arab culture. Hawala transactions are based on trust; they are carried out verbally leaving no paper trail.

The Saudi regime has been complicit in its people's actions and has turned a blind eye to the phenomenon of wealthy citizens sending money to charities that in turn route it to terror organizations. Furthermore, Saudi government money funneled into madrassas where radical anti-Americanism is propagated has been instrumental in creating an ideological climate which generates terrorism.
Former CIA director James Woolsey described the Saudi-sponsored Wahhabism and Islamist extremism as "the soil in which Al-Qaeda and its sister terrorist organizations are flourishing."

Barrels and bombs
It is no coincidence that so much of the cash filling terrorists' coffers come from the oil monarchies in the Persian Gulf. It is also no coincidence that those countries holding the world's largest oil reserves and those generating most of their income from oil exports, are also those with the strongest support for radical Islam. In fact, oil and terrorism are entangled. If not for the West's oil money, most Gulf states would not have had the wealth that allowed them to invest so much in arms procurement and sponsor terrorists organizations.

Consider Saudi Arabia. Oil revenues make up around 90-95% of total Saudi export earnings, 70%-80% of state revenues, and around 40% of the country's gross domestic product (GDP). In 2002 alone, Saudi Arabia earned nearly $55 billion in crude oil export revenues. Most wealthy Saudis who sponsor charities and educational foundations that preach religious intolerance and hate toward the Western values have made their money from the petroleum industry or its subsidiaries. Osama bin Laden's wealth comes from the family's construction company that made its fortune from government contracts financed by oil money. It is also oil money that enables Saudi Arabia to invest approximately 40% of its income on weapons procurement. In July 2005 undersecretary of the Treasury Stuart Levey testifying in the Senate noted “Wealthy Saudi financiers and charities have funded terrorist organizations and causes that support terrorism and the ideology that fuels the terrorists' agenda. Even today, we believe that Saudi donors may still be a significant source of terrorist financing, including for the insurgency in Iraq."

If Saudi Arabia is the financial engine of radical Sunni Islam, its neighbor Iran is the powerhouse behind the proliferation of radical Shiite Islam. Iran, OPEC’s second largest oil producer, is holder of 10 percent of the world’s proven oil reserves and has the world’s second largest natural gas reserve. With oil and gas revenues constituting over 80 percent of its total export earning and 50 percent of its gross domestic product, Iran is heavily dependent on petrodollars. It is a hotbed of Islamic fundamentalism and supporter of some of the world’s most radical Islamic movements such as the Lebanese Hizballah. Iran’s mullahs are fully aware of the power of their oil. Its supreme leader Ayatollah Ali Khamenei warned in 2002: “If the West did not receive oil, their factories would grind to a halt. This will shake the world!” As the world’s demand for oil increases, Iran grows richer --Iran’s oil revenues have jumped 25 percent in 2005—and more than able to snub the U.S. and its allies in their efforts to prevent Tehran from developing nuclear weapons.

The line between the barrel and the bomb is clear. It is oil wealth that enables dictatorial regimes to sustain themselves, resisting openness, progress and power sharing. Some semi-feudal royal families in the Gulf buy their legitimacy from the Muslim religious establishment. This establishment uses oil money to globally propagate hostility to the West, modernity, non-Muslims, and women.
This trend is likely to continue. Both the International Energy Agency and the Energy Information Agency of the U.S. Department of Energy currently project a steady increase in world demand for oil through at least 2020. This means further enrichment of the oil-producing countries and continued access of terrorist groups to a viable financial network which allow then remain a lethal threat to the U.S. and its allies.

Drying the swamp
There are many strategies proposed by counter-terrorism experts to obstruct terrorist financing. Many of them are effective and, indeed, some of the steps that have been taken since September 11, such as freezing bank accounts and improving the scrutiny over international monetary transfers, contributed to a reduction in Al-Qaeda's financial maneuverability. But the only way to deal with the problem strategically is to reduce the disposable income and wealth generation capacity of terrorist supporters.

Hence, America's best weapon against terrorism is to decrease its dependency on foreign oil by increasing its fuel efficiency and introducing next-generation fuels. If the U.S. bought less oil, the global oil market would shrink and price per-barrel would decline. This would invalidate the social contract between the leaders and their people and stem the flow of resources to the religious establishment. It will likely increase popular pressure for political participation, modernity and reformed political and social institutions.

Reducing demand for Middle East oil would force the petroleum-rich regimes to invest their funds domestically, seek ways to diversify their economies and rethink their support for America's enemies. Only then financial support for terrorism could radically diminish.

Countering Terrorist Financing: We Need a Long-Term Prioritizing Strategy

2011-11-28T09:34:00.000-08:00

Hawalas,2 charities, commodities—each of these has one aspect in common: They are methods by which terrorists launder and remit their money. In the wake of 11 September, much has been discovered about the financial support structure of the terrorist cells that perpetrated the attacks on the United States. Investigation of these cells and others has revealed a wide array of methods used by international terrorists to fund their deadly activities. Among these methods are conventional money laundering, acquisition of illegal funds through drug trafficking, smuggling of bulk cash, trade-based money laundering, use of charities for fundraising, and informal money remittance systems such as hawala.

With this smorgasbord of financial means from which to choose, international terrorists have been forcing law enforcement to use a shotgun approach in hopes of successfully hitting a terrorist financial target. Though the shotgun approach was effective in the immediate aftermath of 11 September—enabling U.S. and international law enforcement to freeze and seize funds—success is now meeting with diminishing returns. This is partly because the current techniques by which terrorist financing methods are investigated internationally have proven insufficient in combating unregulated and unmonitored means of money laundering and money remittance. The techniques were created primarily to counter conventional money laundering, not the more difficult-to-trace methods of hawalas and trade-based money laundering.

U.S. Actions

On 24 September 2001, in the aftermath of 11 September, President Bush issued Executive Order 13224, which expanded U.S. power to target the support structure of terrorist organizations.3 It increased law enforcement’s ability to freeze the U.S. assets and to block the U.S. transactions of terrorists and those that support them. Additionally, it heightened U.S. ability to block U.S. assets of foreign banks. It also enabled the United States to deny the foreign banks access to U.S. markets if they refuse to cooperate with American authorities by identifying and freezing terrorist resources abroad. This laid the groundwork for the international actions that followed to block and freeze terrorist assets globally.

These efforts have met with considerable success. As of November 2002, 251 individual organizations had been designated under Executive Order 13224 as financial supporters of terrorism.4 Working bilaterally and multilaterally, the United States has succeeded in freezing terrorist assets in over 165 countries. Since 11 September 2001, more than $112 million in terrorist assets has been frozen worldwide in over 500 accounts. More than $34 million of these assets was frozen in the United States, and over $78 million was frozen overseas.5

In addition to Executive Order 13224, President Bush signed the USA PATRIOT Act into law, granting new tools to law enforcement to aid in combating terrorism. This law imposes new responsibilities on financial institutions for opening and monitoring bank accounts and permits information sharing within the government and among financial institutions. It forbids transactions with shell banks, requires disclosure of information from foreign financial institutions, protects sensitive evidence from disclosure in the investigative process, and expands the types of industries subject to anti–money laundering programs and terrorist financing compliance programs.6

Along with legal and policy actions, the U.S. government has addressed terrorist financing concerns by creating law enforcement task forces. One of these task forces is Operation Green Quest, under the supervision of the Treasury Department. This group, led by the Customs Service, includes the Internal Revenue Service, the Secret Service, the Federal Bureau of Investigation, the Financial Crimes Enforcement Network, and the Bureau of Alcohol, Tobacco and Firearms. The efforts of this task force have led to more than 40 arrests and the seizure of over $6.8 million domestically, more than $16 million in outbound currency, and over $7 million in bulk cash.7

Besides Operation Green Quest, the government established the FBI’s interagency Terrorism Financial Review Group, under the supervision of the Department of Justice. This group was designed to have a capacity for prevention and prediction of terrorist financial activities. The group has since evolved from its original mission, gaining the responsibilities of identifying, investigating, prosecuting, disrupting, and dismantling all terrorist-related financial activities. It works in conjunction with the FBI counter-terrorism unit and operates from FBI headquarters. The group consists of the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the Drug Enforcement Administration, and most of the agencies in Operation Green Quest. The Terrorism Financial Review Group spearheads most actions taken in the United States against terrorist financing and has made large improvements in the effectiveness with which terrorist financial crimes are investigated. Occasionally, it works in conjunction with the Joint Terrorist Task Force, which includes the National Security Council and representatives from the Departments of the Treasury, Justice, and State.8

All of these actions taken since 11 September have given the U.S. government more tools to fight terrorist financing. The United States could not have achieved the success it has thus far, however, without the assistance of other states and the international law enforcement and financial communities.

Multilateral Actions

International organizations and multilateral governing bodies weighed in on countering terrorist financing following the 11 September attacks. United Nations Security Council Resolution 1373—adopted four days after Executive Order 13224 was issued—directed member states to criminalize terrorist financing and to adopt regulatory regimes intended to detect, deter, and freeze funds of terrorists designated by the United Nations.9 The United States was particularly interested in the measure because it provided a foundation for bilateral agreements with nations to increase regulation and law enforcement cooperation. The resolution also has an accountability component to ensure that it is effective: it mandates that member nations certify what actions they are taking to implement the requirements of the measure.

The Financial Action Task Force on Money Laundering also acted to assist in the financial war on terrorism. In October 2001, this prominent international financial regulatory agency added to its existing 40 principles by issuing eight “special recommendations” of conduct directed at countering terrorist financing. All member nations of the task force have endorsed and moved to implement these recommendations. States refusing to adhere to these principles would be blacklisted by the organization. The recommendations direct each member country to

Take immediate steps to ratify and implement the relevant UN resolutions
Criminalize the financing of terrorism, terrorist acts, and terrorist organizations
Freeze and confiscate terrorist assets
Report suspicious transactions linked to terrorism
Provide the widest range of assistance to other countries’ law enforcement and regulatory authorities for terrorist financing investigations
Impose the task force’s requirements on alternative remittance systems (including informal money or value transfer systems or networks)
Strengthen customer identification measures in wire transfers
Ensure that nonprofit organizations (charities) cannot be misused to finance terrorism10
The United States government would like every nation with terrorist financing concerns to adhere to these special recommendations, but the Financial Action Task Force on Money Laundering is limited to 31 entities. However, many regional bodies with observer status that are not task force members but perform similar functions have committed to comply with the recommendations, and more than 80 entities that are not task force members have submitted reports assessing their compliance with the recommendations.11

Some members of the task force that present a real concern for terrorist financing, such as Saudi Arabia, the United Arab Emirates, and other Gulf Cooperation Council states, are now subject to these regulations.12 However, some states—including Indonesia, Nigeria, and Afghanistan—on the Treasury Department’s “Tier 1” list of countries that present a high concern for terrorist financing are not members of the task force. The task force specifically lists Indonesia and Nigeria as non-compliant countries.13 The limited membership of the organization indicates that, though these recommendations create a high standard to which member nations must adhere, the recommendations’ effectiveness in countering terrorist financing is limited for non-member states. This suggests that special actions should be taken to solicit the cooperation of these non-compliant governments in combating terrorist financing.

Finally, the recommendations very noticeably omit regulations against terrorist use of trade-based money laundering, which is vaguely addressed in the task force’s initial 40 principles.

Intelligence Actions

In addition to the policy, legal, and law enforcement actions taken by the United States and multilateral organizations, the financial intelligence community has weighed in on terrorist financing. The Financial Crimes Enforcement Network intelligence unit is tasked with being the primary intelligence source for financial information within the United States. It is responsible for maintaining and analyzing Suspicious Action Reports and Currency Transaction Reports filed by financial institutions in accordance with the Bank Secrecy Act; it also works with law enforcement, the CIA, and regulatory agencies to assist with intelligence of financial crimes committed within the United States.14 As a result of the USA PATRIOT Act, the Financial Crimes Enforcement Network has an expanded responsibility in terrorist financing and is now an independent bureau within the Treasury Department. It can share information from multiple agencies and flag separate inquiries by different agencies on a particular individual or account.15 This is vital, because it opens the doors for financial information sharing between law enforcement agencies and intelligence agencies, responding to the criticism of a lack of across-the-board intelligence sharing before 11 September 2001.

Along with its impact domestically, the Financial Crimes Enforcement Network is a member of the Egmont Group—an international organization of 69 Financial Intelligence Units formed six years before 11 September 2001 to share intelligence of suspicious financial activities. The units in each nation receive information from financial institutions in accordance with anti–money laundering laws, analyze disclosures, and disseminate the information domestically to authorities and internationally to other units to assist law enforcement.16 Since 11 September 2001, the Egmont Group has taken steps to use its financial intelligence-sharing capabilities to support the war on terrorism: working to eliminate obstacles to information exchange, making terrorist financing a required type of Suspicious Action Report from financial institutions to Financial Intelligence Units, and studying methods such as hawala for improvements that can be made in intelligence gathering to counter terrorist financing. The Egmont Group expanded by 11 members in June 2002, and 10 more Financial Intelligence Units are under consideration.17

Challenges to Countering Terrorist Financing

With all these actions taken in the United States and internationally, the world has made important strides in countering terrorist financing. Not the least are the mere recognition of terrorism as something that needs to be countered aggressively and the acceptance of financial investigation as a legitimate way to accomplish this goal. There is a significant obstacle, however, in that many nations have varying definitions of terrorism and of what acts constitute a terrorist attack versus a legitimate action in fighting for freedom. In this situation, organizations and individuals that the United States would consider as having terrorist ties would be considered justified entities by other nations. An obvious example of this is Palestinian suicide bombers. Though nations like Saudi Arabia have pledged their support in fighting the financial war on terrorism with the United States, they would not consider blocking the assets of a militant Palestinian organization, such as Hamas, to be warranted. In contrast, a nation like Israel would adamantly support the blocking and seizure of assets believed to be connected to a Palestinian organization like Hamas. This problem of defining terrorism remains an obstacle for all U.S.-led efforts—financial and otherwise—against terrorism.

With this understood, the tendency has been for each state to define terrorism in its own way and to prosecute terrorist activity within its jurisdiction accordingly. The United States is satisfied that these efforts are being made and has not pushed the issue too hard when nations occasionally decide not to block an organization that the United States has included in Executive Order 13224. In essence, the United States has decided to sacrifice these smaller fish for a united front against the bigger fish of al-Qaeda. There is no question that disrupting al-Qaeda is number one on the U.S. priority list, as recent attacks linked to al-Qaeda have indicated that it should be. From this common ground, the United States has decided to move forward in its strategy to counter terrorist financing in the United States and abroad.

The “National Money Laundering Strategy”

The current U.S. strategy on terrorist financing is laid out in Goal 2 of the National Money Laundering Strategy, published jointly by the Departments of Justice and the Treasury in July 2002. The second goal of this strategy is “Focus law enforcement and regulatory resources on identifying, disrupting, and dismantling terrorist financing networks.”18 To accomplish this, the strategy proposes multiple objectives to identify and target systems and methods of terrorist financiers and improve international efforts to dismantle terrorist financing.19

Each objective is essential in the counter-terrorist financing effort and, if implemented properly, would likely have a significant impact on terrorist financing. Unfortunately, U.S. efforts to date have not been as effective as they should be if dismantling and disrupting terrorist organizations is to be the homeland security priority. There are many areas where improvement can be made to meet these objectives, including legal harmonization, technical assistance, and method-based approaches. Work is being done in each area under the new strategy against money laundering, but reprioritizing these actions would assist in a counter-terrorist financing strategy that more effectively meets President Bush’s goal of starving the terrorists of funding.

The “multi-pronged operational strategy to combat terrorist financing” (Goal 2, Objective 1, in the National Money Laundering Strategy) lays out the priorities of concentrating intelligence resources on gathering financial information related to terrorism, identifying and blocking assets of terrorists as well as those who support terrorist organizations, and deploying diplomatic resources to ensure international cooperation against terrorist financiers and networks abroad.20 Also, Objective 3 lays out the importance of these priorities’ being manifested in an international effort. These sections emphasize legal harmonization and technical assistance. Both are very important to combating terrorist financing internationally, but they should be a secondary priority to improving the methods-based approach (Objective 2), which is seriously faltering.

Legal Harmonization

Legal harmonization requires the United States to lobby for the passage of anti–money laundering laws and the creation of Financial Intelligence Units in nations that do not have them. This would require that financial institutions and money remitters report suspicious financial activity. It requires amending or creating mutual legal assistance treaties by which perpetrators can be extradited and prosecuted more effectively while accommodating differences in justice systems for evidence and intelligence disclosure. It creates a legal basis to freeze assets and to prosecute terrorist financial crimes in nations that refuse to extradite their citizens. Legal harmonization attempts to enhance international cooperation and lessen bureaucracy associated with letters of rogatory—still used by some nations as an ineffective alternative to mutual legal assistance treaties. Legal harmonization is a lengthy process, requiring cooperation at all levels of government in other nations to formulate, pass, and implement the laws.

International organizations and the United States are working to achieve this end. The lead U.S. organization in these legal and diplomatic efforts is the Department of State, assisted by the Department of Justice. Though this endeavor is an important and necessary one, it does not make sense to make it a first priority in countering terrorist financing, because it deals with law enforcement while placing a lesser emphasis on effective prevention, which has to be the priority for homeland security. Additionally, U.S. laws and procedures are inadequate for preventing terrorist financing using hawala and trade-based money laundering, so the United States cannot export its own assistance to this end until it has a workable system in place on the home front. While this endeavor is an essential one for America to continue, other efforts should be made a priority to increase the effectiveness of legal harmonization when it is pursued.

Technical Assistance

The second aspect of the multi-pronged approach deals with technical assistance: helping less-developed nations implement the infrastructure and technology to counter terrorist financing. Technical assistance includes training on how to collect and store the Suspicious Action Reports submitted by financial institutions, preferably in electronic format. It requires training sessions on how to acquire intelligence from banking sources and how to properly use the technology to analyze the data and detect terrorist funding. It provides assistance in a train-the-trainer format so that instruction can continue by the host country. It streamlines information processing and allows better international coordination in freezing assets to follow the terrorist money trail.

Technical assistance is getting a lot of attention by the U.S. and international organizations as well. The Departments of Justice and State have many law enforcement training programs, and the Treasury Department has an Office of Technical Assistance, an Office of International Enforcement Affairs, and technical assistance and training components of the Financial Crimes Enforcement Network.21 Internationally, there is much being done multilaterally. Though the Financial Action Task Force on Money Laundering does not have any technical assistance programs, other multilateral groups, such as the World Bank and the International Monetary Fund, have stepped in, offering training and technical assistance to get the eight special recommendations implemented.22 The good news here is that many interested parties are working hard to assist in training for countering terrorist financing.

With so many nations and organizations interested in assisting, however, coordination is often a problem. Some nations may be getting an abundance of training while others are not. Indonesia, for instance, in the wake of the attack at the Bali nightclub, has been flooded with offers of financial training and assistance. Costa Rica and the border of Brazil, Argentina, and Paraguay—less prominent in the news but with serious concerns about terrorist activity—have received far less attention. Another complication with technical assistance is that depends on the amount of money other nations are willing to spend on improving technology, especially in impoverished nations, which can be a hotbed for terrorist activity. Most of the training being provided is designed to improve abilities to detect and counter terrorist financing accomplished by conventional money laundering. This technique is important for nations with few regulations in their formal financial structure, but it is not very effective in nations that do not have formal financial institutions and rely on methods such as hawala. Training and technical assistance are the right idea but, like legal harmonization, are limited in their success so long as significant methods of terrorist financing are left without the attention they should be getting.

A Methods-Based Approach

The methods-based approach in the National Money Laundering Strategy (Goal 2, Objective 2) lays out priorities of identifying and targeting the methods used by terrorists through formal financial systems, concentrating on informal value transfer systems such as hawala, focusing enforcement and regulatory efforts on alternative means of moving and hiding money (such as bulk-cash smuggling and trade in precious stones or commodities), and investigating the use of nongovernmental organizations to raise, collect, and distribute funds to terrorist organizations.23 This section of the strategy is to be commended for recognizing the varying methods of terrorist financing, but its handling of some of the methods is not adequate for the magnitude of the concern. First, almost the entire strategy focuses on the issue of conventional money laundering through formal financial systems. This commendable vigilance, apparent in the strategy and on the part of mainstream financial institutions and law enforcement, has forced terrorist organizations such as al-Qaeda to look for alternatives.

Al-Qaeda has found these alternatives in three methods that the National Money Laundering Strategy identifies but addresses in a fairly cursory fashion. Combating these methods is where the money and focus should be now so that combating terrorist financing will rise from the plateau it has reached. Even the United Nations has expressed concern that some efforts to counter terrorist financing were faltering.24

There is a fundamental difference between terrorist financing and conventional money laundering: Though terrorists may engage in illegal activity to obtain funds and then launder the currency as conventional money launderers do, terrorist organizations—particularly those in the Middle East—are much more likely to raise their funds legitimately and then use those funds to kill and attack. In testimony before the House Financial Services Committee, Subcommittee on Oversight and Investigations, on 12 February 2002, Juan Zarate, the Treasury Department’s Deputy Assistant Secretary for Terrorism and Violent Crime Enforcement, clarified the sources of terrorist funding:

Some terrorist groups, such as those in Europe, East Asia, and Latin America, rely on common criminal activities including extortion, kidnapping, narcotics trafficking, counterfeiting, and fraud to support their heinous acts. Other groups, such as those in the Middle East, rely on commercial enterprises, donations, and funds skimmed from charitable organizations to not only fund their activities but also to move materiel and personnel. Still other groups rely on state sponsors for funding.25
Terrorist groups such as al-Qaeda have found ways around the regulations that are in place, so the United States must now focus even more attention on al-Qaeda’s alternative methods. If alternative remittance systems and trade-based money laundering receive the same diligence that conventional money laundering and, more recently, charities are receiving, the financial war on terrorism will meet with greater success.

Charities

Of the alternative terrorist financing methods, the one that has received greatest governmental and media attention is the use of charities. Charitable organizations and nongovernmental organizations are popular ways for terrorists to raise and transmit funds. Terrorists have abused some legitimate charities with schemes to siphon money from humanitarian purposes and funnel it to terrorism. For example, the Palestinian militant organization Hamas used a U.S. charity, the Holy Land Foundation for Relief and Development, as a fundraising source for its activities. The U.S. assets of this group were frozen in December 2001 as a result.26 The United States has made pursuing terrorist connections to charities a high priority in efforts to counter terrorist financing and has done so somewhat effectively. Between U.S. and international regulations, steps are being made in the right direction to continue to regulate and monitor the charities. This requires more invasive questions by the IRS Criminal Investigative Unit and its international counterparts, but the logic is that if a charity has nothing to hide, it should be forthcoming with information. This endeavor is meeting with increasing cooperation and progress, particularly by the Saudis after the negative press the royal family received.

Alternative Remittance Systems

Alternative remittance systems are more problematic. Hawala and hundi are trust-based systems of informal money transfers outside the formal financial sector. They provide a cost-effective method for those who may not have access to the formal financial system or who may distrust it. Due to the lack of transparency and lack of a paper trail in hawala, hundi, and other informal value transfer systems, there is high potential for abuse.

There are many indications that al-Qaeda and other terrorist organizations are exploiting this otherwise legitimate system. Al-Barakaat was a Somali-based hawala with connections in over 40 countries. It was a money-remitting company used by Usama bin Laden to finance and support terrorists around the world.27 Its operations in the United States relied on traditional banking, but internationally it operated as a hawala network. The Treasury Department, the FBI, the Treasury Department’s Office of Foreign Asset Control, and Operation Green Quest worked jointly to assist in dismantling the organization in the United States in November 2001. Additionally, as a result of U.S. government and multilateral efforts in October 2001, after a G-7 meeting the United Arab Emirates criminalized hawalas. Under the new law, the United Arab Emirates worked with the Department of the Treasury to block al-Barakaat’s hawala assets at its financial operations center in Dubai.28

Certainly this was an extraordinary hawala case in terms of law enforcement’s success, given its size and scope. But the success of this endeavor shows that focusing on hawala as a remittance system can be an effective means to disrupt terrorist financing. The key to accomplishing this is to regulate the informal system internationally. One important provision of the USA PATRIOT Act is the requirement for alternative money remittance systems to register with the government as money service businesses and to file Suspicious Action Reports. This obligation subjects them to federal regulation. Though there are some hawaladars in the United States, hawala exists internationally on a much greater scale. The United States wants to use the al-Barakaat case as a model of how to work bilaterally and multilaterally to regulate hawalas, but this effort can be engaged in more effectively internationally. Although there has been international engagement to regulate hawala, such as in the United Arab Emirates, it has not taken on the priority it should in order to be effective.

Regulation will meet with varying degrees of cooperation and enforcement—it is not a cure-all for informal value transfer systems. Still, it could prove very effective. If a hawala network fails to register with the government as required, law enforcement will have a basis for prosecution. This follows the same logic, essentially, as Al Capone’s conviction on tax evasion. If the government cannot pin a criminal organization down for the more serious crime it is committing, the government can prosecute it for another, lesser offense to get to the same ends of disrupting the organization and putting the criminals away. Additionally, if hawala were regulated in the same manner as the formal financial structure, it would require originator information on transfers that now tend to be anonymous. The goal is to have a hawala financial system reasonably transparent to the government so that enforcement of money-laundering statutes through all forms of informal value transfer systems would take on much the same format as anti–money laundering measures.

Trade-Based Money Laundering

The third terrorist alternative financing method is the one that is getting the least money and attention. Commodities- or trade-based money laundering includes the smuggling of bulk cash and the evasion of federal reporting requirements used to track money laundering with commodities such as diamonds, precious metals, gold, and tobacco. The USA PATRIOT Act has enhanced the Customs Service’s ability to investigate terrorist-related financial crimes by making inbound and outbound smuggling of bulk cash a criminal offense.29 Though the Treasury Department has been more successful in countering bulk cash smuggling—as Green Quest’s Operation Oasis displayed—it has been less so with commodity concerns. Most especially, international trade can be used by terrorist organizations to disguise funding sources being imported and exported. Front companies might overvalue or undervalue merchandise or might fabricate shipments altogether. Such fraud was uncovered in October 2001 when the Treasury Department named two honey companies that exported their products to Middle Eastern countries as fronts for terrorist funding to al-Qaeda.30 Customs was able to identify anomalies in the packing weight, shipping weight, and reported value of the shipped honey, leading to identification of the criminal commodity activity. Still, this honey case and the success in pursuing conflict diamond connections to al-Qaeda are instances of very limited success in identifying trade-based activity.

A Customs supercomputer database called the Numerically Integrated Profiling System (NIPS) could improve the Treasury Department’s efforts against trade-based money laundering. This intelligence software was modified to track terrorist financing activities. It can help agents to access import and export data as well as trade data provided by foreign governments. The system allows investigators to search for discrepancies in export and import reports, to track goods being shipped in unusual quantities, or to detect goods that are overvalued or undervalued. NIPS enables the manipulation and analysis of trade data, Bank Secrecy Act data, commerce data, and passenger data to identify inconsistencies and possible areas of concern in terrorist financing.

There are challenges to using this database to track trade-based money laundering, but the challenges are surmountable. Customs agents in the field using NIPS cannot access data in real time; they depend on Customs headquarters to mail it to them. Data may be five or six days old once the agent actually receives it. All agents are trained to use NIPS, but not all of them actually do.31 In addition to the domestic obstacles, there are challenges in expanding NIPS’ capability internationally because of the varying sophistication of other nations’ customs officers and the lack of reliable data tracking commodities entering and leaving some countries. Also, some nations are hesitant to share trade information with other nations.

A logical solution to some of these challenges would be to renovate the way Customs uses NIPS in tracking commodities by assigning a core group of agents with the sole responsibility of continually analyzing data. Training nations to track commodities coming across their borders would have to be a priority. The ideal would be actions to encourage other nations to share information with the United States so that it can be evaluated using NIPS, with the eventual goal of trade transparency. This is an efficient means of expediting a counter-terrorist action to understand the scope of the problem faced by the United States and the world. It uses existing software, pouring more manpower into the efficient processing of information. There would be an international benefit here in curtailing trade-based money laundering through the sharing of information by other nations.

This solution is not without its obstacles. It relies heavily on information provided by other nations, assuming their willingness to share customs data with the United States, which is not at all a given. It would require extensive training efforts in reporting on the part of customs officials from other nations. But it does not require every nation to get the technology. The United States can provide technology and training to nations that can afford to own and operate the NIPS database if they have a concern over sharing trade information with the United States. For those that cannot afford the technology, U.S. law enforcement can work with them using joint inquiries to the central database to identify instances of price overvaluing, undervaluing, and other possible terrorist financing methods. This seems to be the most expedient and effective means to comprehend the extent to which trade-based money laundering is occurring while countering illicit trade in commodities by terrorists.

By improving endeavors to counter this and the other methods of terrorist financing, the United States would be investing more intelligently in the security of its homeland. Most important, it is essential that the United States have a focused and prioritized strategy for combating terrorist financing. The National Money Laundering Strategy is a good springboard for addressing terrorist financing issues, but it does not go into sufficient detail with regard to the challenges of countering international terrorist financing or offer substantial solutions to the alternative methods of terrorist financing.

Conclusion and Recommendations

An international focus has to remain the priority in any action taken, since the majority of terrorist assets, cash flows, and evidence lie outside U.S. borders. Some nations’ laws have not been harmonized with those of the United States, creating barriers to cooperation. Some nations also do not have the technical ability and training to maximize their efforts to counter terrorist financing. Consequently, legal harmonization endeavors should continue to maximize preventive efforts against terrorist financing. Also, technical assistance should continue to be provided bilaterally and multilaterally to key nations that do not have their intelligence or customs records available electronically.

Finally, the greatest weakness in the efforts to counter terrorist financing lies in the inability to develop effective tracking measures for trade-based money laundering and hawalas. Technical assistance and legal harmonization are necessary, but without an effective means of tracking all the money, they will be limited in their effectiveness in the financial war on terrorism. As a result, focusing on the methods of terrorist financing should be the new priority. This can and should be done without sacrificing the important progress made in the other areas of combating terrorist financing. By maximizing international cooperation, continuing technical and legal harmonization efforts, and increasing national and international regulation, the United States can implement a long-term strategy to combat terrorist financing. Such a strategy will aid the larger war on terrorism by starving the terrorists of their funding to commit deadly, heinous acts against the United States and the international community.

Sina Lehmkuhler

Beyond the Voting Rights Act:Why We Need a Constitutional Right to Vote

2011-11-28T09:22:00.000-08:00

As thousands of civil rights advocates celebrated the 40th anniversary of the Voting Rights Act (VRA) in Atlanta last weekend, most media coverage conveyed the Act's importance in protecting minorities' political rights. Yet many of those same stories helped perpetuate a dangerous illusion by asserting that a right to vote is guaranteed by the 15th Amendment.

The trouble is the Supreme Court doesn't see it that way.

In its 2000 ruling, Alexander v Mineta, the Court decided the 600,000 or so (mostly black) residents of Washington D.C. have no legal recourse for their complete lack of voting representation in Congress (they have one “representative” in the House who can speak, but cannot vote). The Court affirmed the district court's interpretation that our Constitution "does not protect the right of all citizens to vote, but rather the right of all qualified citizens to vote.” And it's state legislatures that wield the power to decide who is “qualified.”

As a result, voting is not a right, but a privilege granted or withheld at the discretion of local and state governments.

True, our Constitution explicitly prohibits discrimination in granting the franchise based on a person's race, sex, or (adult) age via the 15th, 19th, and 26th Amendments. The 24th Amendment also bars disenfranchisement via poll taxes. But those protections are like a house with no foundation. States and other governments can and do disenfranchise individuals and groups of citizens, and so long as they do it without provable bias, it's entirely legal.

Washington, D.C. residents are not the only victims. Without an affirmative right to vote, Americans repeatedly are disenfranchised or otherwise deprived of their political voice and denied a legal basis for retrieving it.

Just months after the Alexander decision, a 5-4 Court majority in Bush v. Gore denied Florida citizens a right to ensure their votes were counted, saying "the individual citizen has no federal constitutional right to vote [for presidential electors]." Tens of thousands of Floridians who were purged wrongly from the voting rolls were denied recourse against Republican state officials who, in the name of preventing felons from voting, disenfranchised them.

The Bush v. Gore ruling also meant Florida 's legislators could have followed through on their threats to simply disregarded citizens' votes and choose electors themselves.

Our lack of a right to vote also weakens legal arguments for challenging anti-democratic structures that routinely prevent citizens in several states from enjoying a choice other than Democrats or Republicans at the polls. Georgia, for example, has institutionalized a two-party duopoly, devoid of outside competition, by requiring independent or "third party" candidates for U.S. Representative to gather signatures from 5% of registered voters, a feat not accomplished since before the VRA.

Worse, Georgia and Indiana recently passed laws requiring government photo identification to vote, despite an absence of evidence that people are impersonating others at the voting booth. Georgia 's law must first be approved by the Department of Justice under a provision of the VRA (expiring in 2007 unless renewed by Congress) requiring jurisdictions "with a history of discrimination” to gain approval from the DOJ before changing voting laws.

If these laws take effect, a disproportionate number of minority, poor and elderly people who lack ID will be dissuaded from voting. This is exactly the kind of discriminatory scheme the VRA was created to stop, but so long as voting is a state-granted privilege rather than a right, courts are likely to let the law stand.

While we speak of “spreading democracy” globally, the U.S. is one of just 11 nations among 120 or so constitutional democracies that fail to guarantee a right to vote in their constitutions.

Although many constitutional scholars reject the Supreme Court's reasoning in denying such a right, blaming the justices will not solve our problem. It's time we caught up with our own rhetoric by amending our Constitution to transform a right to vote from myth to reality.

Bush's Constitutional Coup: Kangaroo Courts and Disappearances

2011-09-07T22:39:00.000-07:00

An interview with Professor Francis A. Boyle, 14 November 2001 by Dennis Bernstein, host of Flashpoints on KPFA Radio 94.1 FM – Berkeley, California

A Coup against the American Constitution

Dennis Bernstein: You’re listening to Flashpoints, on KPFA.

This is Dennis Bernstein. George W. Bush declared an extraordinary emergency yesterday that empowers him to order military trials for suspected international terrorists and their collaborators, bypassing the American criminal justice system, its rules of evidence and its constitutional guarantees. The presidential directive, signed by Bush as commander-in-chief, applies to non-U.S. citizens arrested in the United States or abroad.

Joining us to talk about this extraordinary measure is Professor Francis Boyle. He is a professor of international law at the University of Illinois College of Law, in Champaign.

I want to thank you for joining us, again, on Flashpoints.

Francis Boyle: Thank you, Dennis. I’m always happy to be on your show and your station, and I hope things go well in your meetings with Pacifica. It’ s a great station and it really needs to be kept on the air and going the way it’s going.

Bernstein: Thank you very much. Now, secret courts, military tribunals — give us, first of all, your sense of what the implication is of this, maybe describe what you understand can happen.

Boyle: First, this executive order must be considered within the context of the massive assault that we have seen inflicted on the United States Constitution by the Bush administration and its Federalist Society lawyers, such as Ashcroft, Gonzales and their staff. We’ve discussed the Federalist Society on your station before, I think.

Since September 11th, we have seen one blow against the Constitution after another, after another. Recently, we’ve had Ashcroft saying that he had, unilaterally, instituted monitoring of attorney-client communications without even informing anyone — he just went ahead and did it, despite the Fourth Amendment ban on unreasonable searches and seizures without warrant and the Sixth Amendment right to representation by counsel.

I won’t go through all the [recently promulgated] measures here, but this is one of the more outrageous and dangerous. As you correctly point out, it applies both to alleged terrorist suspects here in the United States, who are not U.S. citizens and, also, abroad. We have to consider that separately. As for those here in the United States, clearly aliens here are entitled to the protections of the Due Process clause of the Fifth Amendment to the United States Constitution, as well as to the Article III (Section 2, Clause 3) basic constitutional rights in criminal cases, including indictment, trial before a Federal District judge or jury, [rights relating to] venue and things of that nature. It would take me an entire law review article to go through all the problems with this executive order.

Moreover, there is the International Covenant on Civil and Political Rights, to which the United States Government is a party. It’s a treaty and it, again, affords basic due process protections to everyone here in the United States, irrespective of their citizenship. As for the applicability to alleged al Qaeda members, or even former al Qaeda members, over in Afghanistan, [there is] an even more serious problem there.

The third and fourth Geneva Conventions, of 1949, clearly apply to our conflict now with Afghanistan. These alleged al Qaeda members would be protected either by the third Geneva Convention (if they are fighters incorporated into the army there in Afghanistan), or by the fourth Geneva Convention (if they are deemed to be civilians). Both conventions have very extensive procedural protections on trials that must be adhered to. This is not to say that a trial cannot happen. It can happen, but there are very extensive rules and protections. Basic requirements of due process of law, set forth in both of these treaties, must be applied, under these circumstances. [Failures] to apply these treaties would constitute war crimes. Second is the question of reprisals.

This executive order is extremely dangerous, because what it is basically saying to the Taliban government and to al Qaeda is, “We are not going to give you the protections of either the third or fourth Geneva Conventions’ guarantees on trials.” What that means is that they could engage in reprisals against captured members of the United States Armed Forces. As you know, we have soldiers on the ground, now — Special Forces — in Afghanistan and we also have pilots flying over Afghanistan. Any of them could be captured by the Taliban government, by al Qaeda.

If a U.S. military [person] were to be captured, clearly, he or she would be entitled to all the benefits and protections of the third Geneva Convention, on prisoners of war. But the problem now is that President Bush has basically said, openly, publicly and officially, that we are not going to give prisoner-of-war benefits, or fourth Geneva Convention civilian benefits, to al Qaeda members, to former al Qaeda members, or to those who have sheltered, harbored or assisted them. That opens us up for reprisals. It opens up our own armed forces to be denied prisoner-of-war treatment. So, what we’re doing here is exposing them to a similar type of treatment, which would be a summary trial, in secret, subject to the death penalty.

Bernstein: Let me jump in here, Professor Boyle. According to the presidential directive, the president himself will decide which defendants will be tried by military tribunals and Defense Secretary Donald Rumsfeld will appoint each panel and set its rules and procedures, including the level of proof needed for conviction. This sounds almost like sort of a quiet coup.

Boyle: Clearly. What we’ve seen, since September 11th, if you add up everything that Ashcroft, Bush, Gonzales and their coterie of Federalist Society lawyers have done here, is a coup d’etat against the United States Constitution. There’s no question about it. When you add in the Ashcroft police state bill that was passed by Congress (and several members of Congress admitted, “We never even read this thing when we voted for it.”) — that’s really what we’re seeing now, Dennis, a constitutional coup d’etat. There’s no other word for it.

Bernstein: What are the implications when the president and the secretary of defense decide who will be the defendants and what the necessary level of truth will be? I mean, it’s hard to imagine how that would work.

Boyle: This is really like the old Star Chamber proceedings, in the British Empire, where someone accused of treason would be called before a chamber in quiet, in secrecy. (It was called the Star Chamber because there were stars on the [ceiling]). There would be a summary hearing and the person would be sentenced to death. That was that.

The important point to keep in mind is that the president and secretary of defense are bound by the third and fourth Geneva Conventions for anyone over in Afghanistan or Pakistan. They have no discretion there. As for here, in the United States, they are bound by the Constitution and the Bill of Rights, and they are bound by the International Covenant on Civil and Political Rights. There is no exception that the president can unilaterally announce ipse dixit. That’s exactly what this executive order — you can read about it in today’s New York Times — is attempting to do.

Bernstein: It is, obviously, very concerning to Arab-Americans, to people on visas, with green cards. We now have a thousand people in custody. Ashcroft is talking about five thousand more that they want to take into custody. These are all people that could be tried secretly and convicted without [any] evidence that we would know anything about.

Boyle: That is correct. It’s like we’re becoming a banana republic here in the United States, with “disappeared” people, which was the phenomenon that we all saw down in Latin American dictatorships in the 1970s and 1980s, with the support, by the way, of the United States Government.

The latest figure I’ve read is upwards of eleven hundred aliens, Arabs, Muslims, who have just disappeared somewhere. We don’t know where they are or the conditions under which they are being held. We have no idea whether they have access to attorneys. We do know one of them died, under highly suspicious circumstances, while in custody.

There have been reports that he was tortured to death. I should point out that the phenomenon of disappearance is considered a crime against humanity [by] the International Criminal Court. This is very dangerous. The critical question is: When will the FBI, the CIA and the National Security Agency start to turn these powers, that they have under the Ashcroft police state bill, against American citizens? Clearly, that will be the next step.

Bernstein: Well. We have been speaking with Professor Francis Boyle. He is a professor of international law at the University of Illinois College of Law, in Champaign, Illinois. We thank you.

A Vital Piece of the Puzzle- Dollars for Terror- The United States and Islam

2011-09-07T22:30:00.000-07:00

by Carol Brouillet

In 1994 Labeviere's friend, Ali, a Muslim, was assassinated by an Islamist organization. Ali was savagely opposed to the Islamists who are "mutilating their religion and betraying their country,"(1) he would tell anyone who would listen. Labeviere began his investigation to try to understand his friend's death.

The path inevitably led to the financial circuits of terrorism- the banks, the businesses, both legitimate and illegitimate, to the official and secret structures of Saudi finance, the Muslim brothers, to the oil monarchies allied with the United States, to the intelligence agencies, the CIA, and its Saudi and Pakistani counterparts.

Based on a hundred interviews, numerous journalistic investigations, years of archival research and travels, Labeviere painstakingly deconstructs the notion that the U.S. is a beacon of democracy. America's imperial intention is fed by an alliance with the Islamists, new worldwide circuits of organized crime, a transnational hybrid of business and politics. Islamist ideology blends perfectly and complements neoliberalism where the true god is "money." The subordination of everything, national borders, institutions, cultures, states, and nations, in pursuit of profits is the keystone of a totalitarian New World Order. This supranational order comprised of the richest and most powerful transnational corporations bullying governments through the World Trade Organization, International Monetary Fund, World Bank… military coersion complements Islamism which mainly seeks to accumulate money and power, destroy the secularized state, turn citizens into subjects, and annihilate the rights of women.

In his chapter- "The Mercenaries of Globalization" Labeviere writes-

"This vast construction project requires local project superintendents, financiers, Mafias, private security companies and mercenaries engaged in Algeria, in Bosnia, in Chechnya, Afghanistan and the Phillipines, experimental laboratories that thrive, as Oliver Roy says, in 'the de-territorialized space at the margins of Islam.' At the dawn of the 21st century, new hotbeds of Islamist agitation are developing in Niger, Madagascar and Zanzibar and, through the proliferation of armed gangs, in South Africa as well as in Brazil…

"Engaged in the infernal spiral of violence that wipes whole villages off the map, minor local delinquents --self proclaimed 'emirs' -- make no distinction between religious fanaticism and banditry. This alliance is aimed less at the contested state apparatuses than at the civil society -- artists, journalists, intellectuals, trade unionists, unveiled women -- chasing them out and then backing up their conquests with theft, racketeering and a wild takeover of territory. Focusing inward on the defense of their systems of emoluments from the oil and gas and the import-export sectors, the leaders of the security forces have given over the campaigns to private militia, so many vigilante groups that, likewise, end up pursuing their own particular interests…"(2)

Weapons, and drug trafficking go hand in hand, and crop up wherever the CIA spends any time to finance covert wars. Violence encourages more violence and improves weapons sales, the heart of the global economy. "Far from raising obstacles to the new configurations of global capitalism, Islamist ideology is becoming part of its new superstructures. It provides…military-racketeering networks that merge very easily into the filaments of the networks of organized crime, the supreme stage of capitalism."(3) The stability of the international system might depend upon the "hot money" to replace the missing funds "between 1989 and 1997, some $800 billion dollars seems to have disappeared from the planet's accounts."(4) Money laundering is big business. New York, London, Switzerland handle petro-dollars as well as the volumes of dirty money, approximately $500 billion in n 1997 alone (according to the IMF).

"Osama bin Laden is the perfect embodiment of the 'privatization' of Islamist terrorism. He enjoys a solid credit rating in the highest realms of international finance, where he controls a patrimony of more than $3 billion…"(5)

In the chapter- "The CIA's 'Afghans' and Their Networks" he continues-

"Successively a financier, a war lord, a political leader and a preacher, bin Laden is a pure product of the American intelligence services. Where does he get his immense resources? For whom is he working today? Has he really broken off with his former bosses?"(6)

Labeviere paints a detailed panorama of the evolution of the special Saudi, US, Islamist movement relationship from the time when Roosevelt made his first deal with King Ibn Sa'ud in February 1945 on board the Quincy. The kingdom holds 26% of the world's proven oil reserves and agreed to provide the bulk of America's fuel needs at moderate prices for sixty years. The companies now are tenants and in the year 2005, the wells, installations and material will return to the monarch's possession. The premium paid to the king is 18 to 21 cents a gallon for each barrel of oil. In return the US agreed to unconditionally support the stability of the kingdom internally and externally. (A monarchy which beheads 200 people a year…) Not in the contract, but in return, the Saudi's have invested some $350 billion in the US and have developed an almost exclusive economic, commercial and financial partnership. Together they funded, trained, armed bin Laden, and helped to create the famed Al Qaeda network in Afghanistan through the Pakistan ISI, but they also met directly with bin Laden.

Like Christian and Catholic movements, the Islamist movement is complex and multi-layered with competing Sunni and Shiite backers. Saudi Arabia (Sunni) has done everything in its power to counter the Iranian Shiite influence that has grown since 1979. Each supports movements likely to help "the cause" and the winner will embody the political future of "true Islam." The oil monarchies give without counting and without requiring accounting, but Iran has confined itself to giving assistance to where it can influence some degree of control.

There are the Muslim Brothers, created in Egypt in 1929 by Hassan al Banna whose message condemned the principle of separation of the State and religion, and set the establishment of a theocratic state as his movement's goal. He wrote "Islam is doctrine, divine worship, the fatherland, the nation, religion, spirituality, the Koran and the sword."(7) Inspired by Mussolini, the proposed economic program revealed a most direct relationship to that which existed later in nazi Germany and fascist Italy; a social policy foresaw a new law on labor, founded on corporations. A Swiss member of the board of directors for one of the major banks used by the Muslim brothers explained what he calls the "great unification," that of Islam and the Christian West, back to the wake of Ahnenerbe, the Nazi society for esoteric studies, bonds were woven between Islam and the neo-Nazi far Right.

There are many Muslim Brothers with huge financial networks. Al Sharif in Cairo has a turnover of over $1 Billion and in 1994 alone distributed some $760 million to art centers, charitable organizations, and research institutes. The charities, schools, receive funds, and sometimes mask funds intended for weapons and more militant purposes. Mercy International specializes in "humanitarian actions, especially in the cases of natural catastrophe and war." In addition it provided weapons for the Bosnian army and recruited mercenaries and "international volunteers" for that country. It declares a gross budget of $2 million and also channeled weapons to the Kosovo Liberation Army.

The Muslim brothers have a long history of violence and political assassination. In 1964 Nasser attempted to "rehabilitate" them in order to counter the "growing influence of the communists," and they began to get aid from the CIA. They were a perfect "tool" for the low intensity combat that the CIA prefers. Labeviere covers a wide range of countries from the Phillipines, Indonesia, Madagascar, to South American, African, European, Asian and Middle-Eastern countries, each has its history. Together they have evolved islamist terrorist networks, transport routes for their lucrative drug trafficking, varied business networks, aided by the liberalization of finance, and "free trade."

Labeviere's book includes a prologue, preface, and twenty-eight chapters, including- Osama bin Laden, Our Man in Kandahar, Is there a Pilot Onboard the U.S. Aircraft?, Making Good Use of "Low-Intensity Conflicts," The Privatization of US Foreign Policy, Islamism and Zionism: Complementary Enemies, The Taleban, Mercenaries of the American Oil Companies, Behind the Luxor Massacre, bin Laden's "Afghans," Afghanistan and Sudan are the wrong targets, Conclusion- The CIA at the Negotiating Table. Wishing to understand the "who" and "why" behind the attacks on the World Trade Center and the Pentagon, I found a wealth of background information on the publicly accused "culprits" and their intimate ties with the CIA, Saudi Arabia, and Pakistan.

Had the CIA or the Saudis wished to apprehend bin Laden, they certainly have had the capacity to do so since the embassy bombings in Africa in 1998, but there is a great disparity between the drama enacted upon the world stage and the politics behind terrorist attacks. Not unlike Saddam Hussein, another CIA asset gone astray, Osama bin Laden has been a very useful target for the U.S.. Labeviere's suggests a different interpretation of the 1998 "terrorist attacks upon the embassies" and the motivations behind them.

To greatly simplify Labeviere's meticulous unraveling of the political situation of Sudan-

A leader of the extremists, "Salah Ed-Din," (who was also a part of bin Laden's team) financed the attacks, in an attempt to strengthen the hand of the failing party which was facing the possible loss of its business networks due to a civil war. To isolate the political leader, Tourabi, and block peace talks, the embassies were bombed.

Despite the media hoopla, the allegation of Iraqi involvement in chemical weapons of mass destruction, and the elevation of Osama bin Laden to World Enemy Number One, in retaliation the US chose to bomb the Al-Shifa pharmaceutical plant, not owned by bin Laden. According to Labeviere's source, the intent was to send a clear signal to those responsible-

"the Americans said very distinctly: we do not want to destroy the economic base that is vital to the country, but only the interests of those who are obstructing the peace process with the rebellion in the south. We know who the "hawks" are, who are opposing this process. We also know perfectly well where their economic interests lie."(8)

"Admittedly, the principal silent partner of the Nairobi and Dar es Salaam attacks, the Sudanese Salah Ed-Din, is Osama bin Laden's man, and indeed the Saudi billionaire financed these operations; but one cannot seriously, suggest that he was 'the brain' behind the attacks.

"…bin Laden then returned to Afghanistan; this transfer which was carried out, according to several qualified sources, under the protection of the Saudi services, with a green light from the CIA."(9)

His return to Afghanistan has served the long-term plan of US geostrategists perfectly. Zbigniew Brzezinski,(10) president of the National Security Council in 1978 was "responsible for setting up (in collaboration with the CIA, and the Saudi and Turkish intelligence services) Islamist propaganda networks intended to infiltrate the Muslim nationalist organizations of the Soviet republics of Central Asia. Weapons and Korans printed in the gulf monarchies were introduced into Uzbekistan, Tajikstan and Turkmenistan in great quantities. In addition Brzezinski is proud of his role in introducing CIA involvement to Afghanistan 6 months prior to the Soviet invasion which helped fuel the Soviet collapse and led to a gaping black hole of power within Central Asia.

Zbigniew Brzezinski details his hope to achieve American "Global Supremacy" in his 1997 book, The Grand Chessboard- American Primacy and Its Geostrategic Imperatives and writes "Eurasia has been the center of world power…

"The last decade of the twentieth century has witnessed a tectonic shift in world affairs. For the first time ever, a non-Eurasian power has emerged not only as the key arbiter of Eurasian power relations but also as the world's paramount power. The defeat and collapse of the Soviet Union was the final step in the rapid ascendance of a Western Hemisphere power, the United States, as the sole and, indeed, the first truly global power… Eurasian power--remains central to America's capacity to exercise global primacy.

"It follows that--in addition to cultivating the various novel dimensions of power (technology, communications, information, as well as trade and finance)--American foreign policy must remain concerned with the geopolitical dimension and must employ its influence in Eurasia in a manner that creates a stable continental equilibrium, with the United States as the political arbiter.

Eurasia is thus the chessboard on which the struggle for global primacy continues to be played, and the struggle involves geostrategy--the strategic management of geopolitical interests."

Of great importance are the Caspian Sea oil, and natural gas reserves, which have yet to be fully exploited and could rival those of the Middle East. The Islamist involvement has prepared the field for the current major involvement by the US in Central Asia.

Labeviere wrote in a recent article that the CIA met with bin Laden last July. (11) His chronicles of the close ties between the ISI, Saudi Arabia, bin Laden, the al Qaeda network show that it would have been almost impossible for the US to not have had foreknowledge of the September 11th attacks. The attack enabled the US government to garner public support for its alleged "War on Terrorism" and helped it justify its military presence in the most strategic, resource rich area in the world. The war has also permitted the US to use Nazi tactics to obliterate civil liberties and militarize security forces within the US.

The veil of secrecy which has fallen over the United States harkens to another Era. Documents declassified under the Nazi War Crimes Disclosure Act of 1998 "are shedding new light on what the American and British intelligence communities knew of Hitler's plans for the Jews early in World War II. By March 20, 1942, a surreptitiously obtained document appears in the files of the United States Coordinator of Information (COI), a predecessor to the Office of Strategic Services (OSS) and the Central Intelligence Agency. The document is a translated copy of a dispatch filed by a Chilean diplomat on November 24, 1941, which the COI received some time later from British intelligence. It clearly discusses the Nazi intent to eradicate European Jewry.

"The report, by the diplomat stationed in Prague, tells of the Nazi plan for the destruction of "Semitism," the "eradication" of the Jews of Europe. It was delivered to David Bruce, head of the Secret Intelligence Branch of the COI, who forwarded it to an administrative assistant to William J. Donovan, who served as Coordinator of Information before heading the OSS. There is no indication on the document whether other Americans may have seen it. The records add new details to the longstanding debate about how much the West learned of the Holocaust at the time. Thomas H. Baer said, "Warnings from the allies to the Jews of Europe of a planned genocide never came. The Nazi murders depended on secrecy and subterfuge. Warnings would not have stopped the Holocaust, but they could have saved lives." Former US Representative Elizabeth Holtzman said, "This recently declassified document helps pinpoint how much officials within our government knew about the Holocaust and when they knew it. The next question is why our government--not to mention the British--did nothing in response. It is unbearable to think that plans to 'eradicate' a Jewish population were a matter of such indifference." (12)

Millions of lives are currently at stake in Afghanistan, and warnings of genocide from hunger and privation still haven't penetrated the shroud of secrecy of what is truly happening in that country or why US forces dropped so many bombs.

At the time Labeviere's book was written, "Prince Turki, head of the Saudi Secret Service for more than 20 years, a constrained friend of the CIA, made abundant use of bin Laden's networks."(13)He resigned his position less than two weeks before the World Trade Center/Pentagon attack.(14)

As I write this, the Northern Alliance has defeated the Taliban and at a conference in Bonn, "men" are deciding the fate of Afghanistan. Much like chess, attacks, counterattacks, costing thousands and millions of lives, are being made. There are few words for the human or environmental costs of the war, but the "agreement" will be on the "prize," the fabulous oil, gas, and mineral reserves of Central Asia, control over key territory. Who is at the table? Representatives of the United Nations, serving powerful forces, offering lucrative "reconstruction deals" to the competing warlords to assure the "security" of the territory (and the oil and opium pipelines). As long as war and drugs remain profitable, terror and fear will be the instruments of choice by the rich and powerful. Greatly aided by the media, "terrorism" helps politicians to- justify their wars, use extreme security measures to control civilians, maintain their power and privileges.

The pieces of the puzzle are being put together by those who seek to make sense of the "violence" which has claimed so many lives. Certainly Afghanistan was not bombed to kill bin Laden or his network. Pakistan and Saudi Arabia who helped create the "Afghan network" have not been implicated in any way.

Despite Prince Turki's sudden retirement last August, and the head of Pakistan's ISI, Lt. General Mahmoud Ahmad, abrupt resignation in light of the revelation that he had given $100,000 to the lead bomber in the World Trade Center Attack (15), there is no mention in the mainstream press of their important roles in creating the network being blamed for the attack, nor the CIA's continuing support role, either.

Leading industrialists of another era once approached Smedley Butler to be the "front man" for a coup to topple FDR and set up a fascist government, he turned them down. In 1933 he said:

"War is just a racket. A racket is best described, I believe, as something that is not what it seems to the majority of people. Only a small inside group knows what it is about. It is conducted for the benefit of the very few at the expense of the masses.

"I believe in adequate defense at the coastline and nothing else. If a nation comes over here to fight, then we'll fight. The trouble with America is that when the dollar only earns 6 percent over here, then it gets restless and goes overseas to get 100 percent. Then the flag follows the dollar and the soldiers follow the flag.

"I wouldn't go to war again as I have done to protect some lousy investment of the bankers. There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights. War for any other reason is simply a racket.

"There isn't a trick in the racketeering bag that the military gang is blind to. It has its "finger men" to point out enemies, its "muscle men" to destroy enemies, its "brain men" to plan war preparations, and a "Big Boss" Super-Nationalistic-Capitalism.

"It may seem odd for me, a military man to adopt such a comparison. Truthfulness compels me to. I spent thirty- three years and four months in active military service as a member of this country's most agile military force, the Marine Corps. I served in all commissioned ranks from Second Lieutenant to Major-General. And during that period, I spent most of my time being a high class muscle- man for Big Business, for Wall Street and for the Bankers. In short, I was a racketeer, a gangster for capitalism.

"I suspected I was just part of a racket at the time. Now I am sure of it. Like all the members of the military profession, I never had a thought of my own until I left the service. My mental faculties remained in suspended animation while I obeyed the orders of higher-ups. This is typical with everyone in the military service.

"I helped make Mexico, especially Tampico, safe for American oil interests in 1914. I helped make Haiti and Cuba a decent place for the National City Bank boys to collect revenues in. I helped in the raping of half a dozen Central American republics for the benefits of Wall Street. The record of racketeering is long. I helped purify Nicaragua for the international banking house of Brown Brothers in 1909-1912 (where have I heard that name before?). I brought light to the Dominican Republic for American sugar interests in 1916. In China I helped to see to it that Standard Oil went its way unmolested."

For the sake of the world, all civilians, what democracy remains, we must lift the veils of secrecy, expose the hypocrisy of war and the ruling elite whose pursuit of money and power rain death and suffering upon the living.

9/11 ANALYSIS: From Ronald Reagan and the Soviet-Afghan War to George W Bush and September 11, 2001

2011-09-02T10:28:00.000-07:00

by Michel Chossudovsky

This article summarizes earlier writings by the author on 9/11 and the role of Al Qaeda in US foreign policy. For further details see Michel Chossudovsky, America's "War on Terrorism", Global Research, 2005

"The United States spent millions of dollars to supply Afghan schoolchildren with textbooks filled with violent images and militant Islamic teachings....The primers, which were filled with talk of jihad and featured drawings of guns, bullets, soldiers and mines, have served since then as the Afghan school system's core curriculum. Even the Taliban used the American-produced books,..", (Washington Post, 23 March 2002)

"Advertisements, paid for from CIA funds, were placed in newspapers and newsletters around the world offering inducements and motivations to join the [Islamic] Jihad." (Pervez Hoodbhoy, Peace Research, 1 May 2005)

"Bin Laden recruited 4,000 volunteers from his own country and developed close relations with the most radical mujahideen leaders. He also worked closely with the CIA, ... Since September 11, [2001] CIA officials have been claiming they had no direct link to bin Laden." (Phil Gasper, International Socialist Review, November-December 2001)

Highlights

-Osama bin Laden, America's bogyman, was recruited by the CIA in 1979 at the very outset of the US sponsored jihad. He was 22 years old and was trained in a CIA sponsored guerilla training camp.

-The architects of the covert operation in support of "Islamic fundamentalism" launched during the Reagan presidency played a key role in launching the "Global War on Terrorism" in the wake of 9/11.

- President Ronald Reagan met the leaders of the Islamic Jihad at the White House in 1985

-Under the Reagan adminstration, US foreign policy evolved towards the unconditional support and endorsement of the Islamic "freedom fighters". In today's World, the "freedom fighters" are labelled "Islamic terrorists".

-In the Pashtun language, the word "Taliban" means "Students", or graduates of the madrasahs (places of learning or coranic schools) set up by the Wahhabi missions from Saudi Arabia, with the support of the CIA.

-Education in Afghanistan in the years preceding the Soviet-Afghan war was largely secular. The US covert education destroyed secular education. The number of CIA sponsored religious schools (madrasahs) increased from 2,500 in 1980 to over 39,000.

The Soviet-Afghan war was part of a CIA covert agenda initiated during the Carter administration, which consisted in actively supporting and financing the Islamic brigades, later known as Al Qaeda.

The Pakistani military regime played from the outset in the late 1970s, a key role in the US sponsored military and intelligence operations in Afghanistan. In the post-Cold war era, this central role of Pakistan in US intelligence operations was extended to the broader Central Asia- Middle East region. From the outset of the Soviet Afghan war in 1979, Pakistan under military rule actively supported the Islamic brigades. In close liaison with the CIA, Pakistan's military intelligence, the Inter-Services Intelligence (ISI), became a powerful organization, a parallel government, wielding tremendous power and influence.

America's covert war in Afghanistan, using Pakistan as a launch pad, was initiated during the Carter administration prior to the Soviet "invasion":

"According to the official version of history, CIA aid to the Mujahideen began during 1980, that is to say, after the Soviet army invaded Afghanistan, 24 Dec 1979. But the reality, secretly guarded until now, is completely otherwise Indeed, it was July 3, 1979 that President Carter signed the first directive for secret aid to the opponents of the pro-Soviet regime in Kabul. And that very day, I wrote a note to the president in which I explained to him that in my opinion this aid was going to induce a Soviet military intervention." (Former National Security adviser Zbigniew Brzezinski, Interview with Le Nouvel Observateur, 15-21 January 1998)

In the published memoirs of Defense Secretary Robert Gates, who held the position of deputy CIA Director at the height of the Soviet Afghan war, US intelligence was directly involved from the outset, prior to the Soviet invasion, in channeling aid to the Islamic brigades.

With CIA backing and the funneling of massive amounts of U.S. military aid, the Pakistani ISI had developed into a "parallel structure wielding enormous power over all aspects of government". (Dipankar Banerjee, "Possible Connection of ISI With Drug Industry", India Abroad, 2 December 1994). The ISI had a staff composed of military and intelligence officers, bureaucrats, undercover agents and informers, estimated at 150,000. (Ibid)

Meanwhile, CIA operations had also reinforced the Pakistani military regime led by General Zia Ul Haq:

"Relations between the CIA and the ISI had grown increasingly warm following [General] Zia’s ouster of Bhutto and the advent of the military regime. … During most of the Afghan war, Pakistan was more aggressively anti-Soviet than even the United States. Soon after the Soviet military invaded Afghanistan in 1980, Zia [ul Haq] sent his ISI chief to destabilize the Soviet Central Asian states. The CIA only agreed to this plan in October 1984." (Ibid)

The ISI operating virtually as an affiliate of the CIA, played a central role in channeling support to Islamic paramilitary groups in Afghanistan and subsequently in the Muslim republics of the former Soviet Union.

Acting on behalf of the CIA, the ISI was also involved in the recruitment and training of the Mujahideen. In the ten year period from 1982 to 1992, some 35,000 Muslims from 43 Islamic countries were recruited to fight in the Afghan jihad. The madrassas in Pakistan, financed by Saudi charities, were also set up with US support with a view to "inculcating Islamic values". "The camps became virtual universities for future Islamic radicalism," (Ahmed Rashid, The Taliban). Guerilla training under CIA-ISI auspices included targeted assassinations and car bomb attacks.

"Weapons' shipments "were sent by the Pakistani army and the ISI to rebel camps in the North West Frontier Province near the Afghanistan border. The governor of the province is Lieutenant General Fazle Haq, who [according to Alfred McCoy] . allowed "hundreds of heroin refineries to set up in his province." Beginning around 1982, Pakistani army trucks carrying CIA weapons from Karachi often pick up heroin in Haq’s province and return loaded with heroin. They are protected from police search by ISI papers."

Osama Bin Laden

Osama bin Laden, America's bogyman, was recruited by the CIA in 1979 at the very outset of the US sponsored jihad. He was 22 years old and was trained in a CIA sponsored guerilla training camp.

During the Reagan administration, Osama, who belonged to the wealthy Saudi Bin Laden family was put in charge of raising money for the Islamic brigades. Numerous charities and foundations were created. The operation was coordinated by Saudi intelligence, headed by Prince Turki al-Faisal, in close liaison with the CIA. The money derived from the various charities were used to finance the recruitment of Mujahieen volunteers. Al Qaeda, the base in Arabic was a data bank of volunteers who had enlisted to fight in the Afghan jihad. That data base was initially held by Osama bin Laden.

The Reagan Administration supports "Islamic Fundamentalism"

Pakistan's ISI was used as a "go-between". CIA covert support to the Mujahideen in Afghanistan operated indirectly through the Pakistani ISI, --i.e. the CIA did not channel its support directly to the Mujahideen. In other words, for these covert operations to be "successful", Washington was careful not to reveal the ultimate objective of the "jihad", which consisted in destroying the Soviet Union.

In December 1984, the Sharia Law (Islamic jurisprudence) was established in Pakistan following a rigged referendum launched by President Muhammad Zia-ul-Haq. Barely a few months later, in March 1985, President Ronald Reagan issued National Security Decision Directive 166 (NSDD 166), which authorized "stepped-up covert military aid to the Mujahideen" as well a support to religious indoctrination.

The imposition of The Sharia in Pakistan and the promotion of "radical Islam" was a deliberate US policy serving American geopolitical interests in South Asia, Central Asia and the Middle East. Many present-day "Islamic fundamentalist organizations" in the Middle East and Central Asia, were directly or indirectly the product of US covert support and financing, often channeled through foundations from Saudi Arabia and the Gulf States. Missions from the Wahhabi sect of conservative Islam in Saudi Arabia were put in charge of running the CIA sponsored madrassas in Northern Pakistan.

Under NSDD 166, a series of covert CIA-ISI operations was launched.

The US supplied weapons to the Islamic brigades through the ISI. CIA and ISI officials would meet at ISI headquarters in Rawalpindi to coordinate US support to the Mujahideen. Under NSDD 166, the procurement of US weapons to the Islamic insurgents increased from 10,000 tons of arms and ammunition in 1983 to 65,000 tons annually by 1987. "In addition to arms, training, extensive military equipment including military satellite maps and state-of-the-art communications equipment" (University Wire, 7 May 2002).

The implications of 9/11 - The Islam, Muslims and West.

2011-09-02T09:45:00.000-07:00

Terrorism after 9/11 had changed the surface of reality. The theory on clash of civilisations had imbedded with the foriegn policy of western powers with intent to carry on the mind game of west against the east.

In reality there are no such things. Its all about power and who want to control whom. The west is actually wants to hold the power against east. The emerging of India and China as the superpowers had terroried the western dominance on world issues.

So, the west has no choice but to create a proxy war by creating conflicts around the globe to retain the power.

If you had noticed after the fall of the Berlin Wall, the involvement of west on conflicts around the world is very clear on creating an enemy to re-establish its dominance on world affairs.

Unfortunately Islam and Muslims become the victims on this mind game. The clear indications on this matter are the conflicts involving Muslim countries after the 9/11. From Balkan conflict to current Middle East uprisings had proved that the West has a bigger agenda than what world had perceived on these conflicts.:

Civil Society

2011-08-14T19:19:00.000-07:00

An Introduction

It is impossible to have a conversation about politics or public policy these days without someone mentioning the magic words “civil society”, so one might think that people are clear what they mean when they use this term and why it is so important. Unfortunately, clarity and rigor are conspicuous by their absence in the civil society debate, a lack of precision that threatens to submerge this concept completely under a rising tide of criticism and confusion.

The civil society puzzle

According to whose version one prefers, “civil society” means “fundamentally reducing the role of politics in society by expanding free markets and individual liberty” (Cato), or it means the opposite - “the single most viable alternative to the authoritarian state and the tyrannical market” (WSF), or for those more comfortable in the middle ground of politics, it constitutes the missing link in the success of social democracy (central to Third Way thinking and supposedly-compassionate conservatism), the “chicken soup of the social sciences” – you know those books that provide much-needed comfort without that much substance, so if you can’t explain something, put it down to civil society! Adam Seligman, tongue firmly in cheek, calls civil society the “new analytic key that will unlock the mysteries of the social order”, Jeremy Rifkin calls it “our last, best hope”, the UN and the World Bank see it as the key to ‘good governance’ and poverty-reducing growth, and even the real reason for war against Iraq – to kick-start civil society in the Middle East, according to Administration officials in Washington DC. As a new report from the Washington-based Institute for Foreign Policy Analysis puts it, “the US should emphasize civil society development in order to ensure regional stability in central Asia” - forgetting, of course, that citizens groups have been a prime cause of destabilization in every society since the Pharaohs.

Some claim that civil society is a specific product of the nation state and capitalism; others see it as a universal expression of the collective life of individuals, at work in all countries and stages of development but expressed in different ways according to history and context. Some see it as one of three separate sectors, others as intimately interconnected or even inter-penetrated by states and markets. Is civil society the preserve of groups predefined as democratic, modern, and ‘civil’, or is it home to all sorts of associations, including ‘uncivil’ society – like militant Islam and American militias - and traditional associations based on inherited characteristics like religion and ethnicity that are so common in Africa and Asia?

Are families in or out, and what about the business sector? Is civil society a bulwark against the state, an indispensable support, or dependent on government intervention for its very existence? Is it the key to individual freedom through the guaranteed experience of pluralism or a threat to democracy through special interest politics? Is it a noun – a part of society, an adjective - a kind of society, an arena for societal deliberation, or a mixture of all three? Can you build a civil society through foreign aid and intervention, or is this just another imperial fantasy? What is to be done with a concept that seems so unsure of itself that definitions are akin to nailing jelly to the wall? And in any case, do these questions really matter, except to a small band of academics who study this stuff for a living?

Civil society – gaining some clarity

When an idea can mean so many things it probably means nothing, so I think the time has come to be rid of the term completely or, now that it has acquired a life of its own, to at least be clearer with each other about the different interpretations in play. Consensus is impossible given the range of views on offer, but clarity is not, and greater clarity can be the springboard for a better conversation about the promise and potential of civil society as a basis of hope and action for the future, and about the pitfalls of using this term as a political slogan or a shelter for dogma and ideology. Recognizing that civil society does indeed mean different things to different people is one of the keys to moving forward, because it moves us beyond false universals ands entrenched thinking. And for those who want to discard the term completely my plea would be, not yet - “don’t throw the baby out with the bathwater.” As I show in Civil Society (Edwards 2004), ideas about civil society can survive and prosper in a rigorous critique.

In part, the fog that has enveloped this term is the result of an obsession with one particular interpretation of civil society as a part of society - the world of voluntary associations - forgetting that there are earlier and later traditions that have just as much to offer. It was Alexis de Tocqueville [the man you probably all remember from your schooldays] that started this craze on his visits across the Atlantic in the 1830s, who saw America’s rich tapestry of associational life as the key to its emerging democracy. “Americans of all dispositions have an incurable tendency to form voluntary associations.” Originally however, civil society, from Aristotle to Thomas Hobbes, represented a kind of society that was identified with certain ideals. And in modern societies, realizing these ideals – like political equality or peaceful coexistence - requires action across many different institutions, not just voluntary associations. Most recently, philosophers have developed a new set of theories about civil society as the ‘public sphere’ – the places where citizens argue with one-another about the great questions of the day and negotiate a constantly-evolving sense of the ‘common’ or ‘public’ interest.

Civil society as associational life

My starting point in Civil Society (Edwards 2004) is to deconstruct the existing, confused conversation about civil society and then reconstruct the relationships between these different schools of thought in a new, and I hope more convincing synthesis. The first school believes that voluntary associations act as gene carriers of the good society – microclimates, if you will, for developing values like tolerance and cooperation, and the skills required for living a democratic life. The trouble is that real associational life is home to all sorts of different and competing values and beliefs (think pro and anti-choice groups, for example, or peaceniks and the NRA). There’s another problem with this thesis too, because the values and beliefs we want to see developed are fostered in all the places where we learn and grow, and where are dispositions are shaped, which means families, schools, workplaces, colleges and universities, and political institutions large and small. We actually spend a lot more time in these places than we do in voluntary associations, so these experiences are especially important. For the same reason, by themselves, NGOs and other voluntary associations can rarely secure the level of political consensus that is required to secure and enforce broad-based social reforms – there’s too much difference and diversity of opinion. That’s why civil society, to quote the British writer John Keane “is riddled with danger, since it gives freedom to despots and democrats alike.”

Civil society as the good society

So my second school of thought – civil society as the good society – is very important, because it sets the contributions of voluntary associations in the proper context and guards against the tendency to privilege one part of society over the others on ideological grounds – voluntary associations over states for example, or business over both. Good neighbors can’t replace good government, and nonprofits shouldn’t be asked to substitute for well-functioning markets. Historically (think of the US in the 20^th century and East Asia after World War II), success in achieving good society goals has always been based on social contracts negotiated between government, business and citizens.

However, if the good society requires coordinated action between different institutions all pulling in the same direction, how do societies decide which direction in which to go, and whether it is the right one as conditions and circumstances continue to change over time? How are collective choices made, trade offs negotiated, and ends reconciled with means in ways that are just and effective? For answers to these questions, we have to turn to my third school of thought and consider civil society in its role as the public sphere.

Civil society as the public sphere

The concept of a ‘public’ – a whole polity that cares about the common good and has the capacity to deliberate about it democratically – is central to civil society thinking. The development of shared interests, a willingness to cede some territory to others, the ability to see something of oneself in those who are different and work together more effectively as a result – all these are crucial attributes for effective governance, practical problem-solving, and the peaceful resolution of our differences. In its role as the ‘public sphere’, civil society becomes the arena for argument and deliberation as well as for association and institutional collaboration, and the extent to which such spaces thrive is crucial to democracy, since if only certain truths are represented, if alternative viewpoints are silenced by exclusion or suppression, or if one set of voices are heard more loudly than those of others, the ‘public’ interest inevitably suffers. When all politics are polarized, public policy problems become embedded, even frozen, in polities that cannot solve them – think health care and welfare reform in the US, for example. Breaking the resulting gridlock requires the creation of new publics in support of broad-based reform – exactly what is missing in the US right now.

Finding a way through the ‘civil society puzzle’

All three of these schools of thought have something to offer, but by themselves are incomplete and unconvincing. So the logical thing to do is to connect them so that the weaknesses of one set of theories are balanced by the strengths and contributions of the others. What does that mean in practice?

Civil society as the good society keeps our ‘eyes on the prize’ – the prize being the goals of poverty-reduction and deep democracy that require coordinated action across different sets of institutions. However, the vision of the good society says little about how such goals are going to be achieved, and associational life does seem to be an important – if incomplete - explanatory factor in most contemporary settings. Structural definitions of civil society – the first approach I described - are useful in emphasizing the gaps and weaknesses of associational life that need to be fixed if they are to be effective vehicles for change. However, the differences and particularities of associational life generate competing views about the ends and means of the good society, anchored in religion, politics, ideology, race, gender and culture. Without our third set of theories – civil society as the public sphere – there would be no just and democratic way to reconcile these views and secure a political consensus about the best way forward. In turn, a healthy associational ecosystem is vital to the public sphere, since it is usually through voluntary organizations and the media that citizens carry on their conversations. Finally, the achievements of the good society are what make possible the independence and level playing field that underpin a democratic associational life - by reducing inequality, for example, and guaranteeing freedom of association, anchored in the law.

So it’s not difficult to see how each approach builds on the others in order to offer a more compelling explanation of civil society’s significance. One can construct a similar tripartite relationship at the global level too – “global civil society” as an additional layer of transnational associational activity, a new kind of global society or form of International Relations marked out respect for human rights and the peaceful resolution of differences, and as an emerging global public sphere exemplified by events like the World Social Forum, Internet sites like openDemocracy and open source technology.

Civil society – the way forward

Thinking about the issues in this way helps us to pose an actionable set of questions instead of arguing in the abstract over which theory is correct. Most importantly, how do shifting patterns of associational life help or hinder the realization of good society goals, and what can we do to revive the public sphere if we believe it is an important transmission mechanism between the two?

This question generates a rich agenda for public policy discussions, though a complicated one since there is no obvious consensus on the answers and the evidence is very muddy – three schools of thought. The social capital school – like Robert Putnam [whose work I’m sure you all know well] - sees associational life in general as the driving force behind the positive social norms on which the good society is founded – things like cooperation, trust and reciprocity. So the logical policy is to encourage as much volunteering and voluntary action as possible even if some of it is used for nefarious purposes. Somewhat magically in my view, these differences will, Putnam argues, work themselves out in the general scheme of things.

The comparative associational school – like Theda Skcocpol – see particular configurations of associational life as the key to securing the public policy reforms the good society requires - the nationally-federated mass-membership, cross-class groups like PTAs, labor unions, elks and other forest creatures, that have declined so much over the last 50 years and which used to provide strong bridges between citizens and government that led to reforms like the GI Bill of 1944; and the school of skeptics - like Nancy Rosenblum - don’t see any reliable link between the structure of civil society and its achievements. All these positions are analyzed in my book, but none is completely convincing, especially in contexts other than the US. And obviously the appropriate policy depends on which position one subscribes to.

There are some interventions, though, that would be useful across the board. The first thing we need to do is to strengthen the pre-conditions for a healthy civil society in all three senses by attacking all forms of inequality and discrimination, giving people the means to be active citizens, reforming politics to encourage more participation, guaranteeing the independence of associations and the structures of public communication, and building a strong foundation for institutional partnerships, alliances and coalitions. Inequality is the poison of civil society because it endows citizens with different levels of resources and opportunities to participate, so things like support for childcare and a living wage – which are not usually seen as civil-society building interventions, may be the most important areas of all.

Second, we need to support innovations in associational life that encourage citizen action to operate in service to the good society, rather than as a substitute for politics, market reform and the demands of democratic state building. That doesn’t mean turning the clock back to the 1950s and forcing teenagers to join the Moose or the Elks (the Norman Rockwell school of civil society thinking), but reinventing associational life to suit the realities of a very different era in which time and energy are more limited, worn down by the demands of work and unsupported family obligations.

For example, we need to build stronger links between policy groups, organizing groups, service deliverers and the media; we need to link associations across different interests and agendas and get progressive organizing out of its silos (issues and identities); we need to encourage a more democratic relationship between grassroots constituencies and those in the nonprofit sector who claim to speak on their behalf. We need to reduce the costs and risks of citizen participation(for example, making it easier to organize at the workplace), and we need to honor and connect different forms of participation so that service doesn’t become a substitute for political engagement, as is happening among many younger people in America today.

It’s also important to make room for surprises – like the potential political effects of self help groups like Alcoholics Anonymous and Weightwatchers (the largest category of voluntary associations in America with over 25million members), or the boy scouts and mosque associations in Lebanon (which turn out to be among the most progressive), or burial societies in South Africa (which played a major role in the fight against apartheid), or labor unions in France and Brazil which have given an important stimulus to new and less hierarchical forms of transnational organizing.

To conclude

To conclude, civil society is simultaneously a goal to aim for, a means to achieve it, and a framework for engaging with each-other about ends and means. When these three ‘faces’ turn towards each-other and integrate their different perspectives into a mutually-supportive framework, the idea of civil society can explain a great deal about the course of politics and social change, and serve as a practical framework for organizing both resistance and alternative solutions to social , economic and political problems. Many of the difficulties of the civil society debate disappear when we lower our expectations of what each school of thought has to offer in isolation from the others, and abandon all attempts to enforce a single model, consensus or explanation. This may not deter the ideologues from using civil society as a cover for their own agendas, but it should make it easier to expose their claims and challenge the assumptions they often make.

This is one reason why, to answer the question I raised at the outset, getting clearer about civil society does matter in more than the academic sense. When, as recently reported in the press for example, the National Endowment for Democracy claims to be building civil society in Venezuela but is only supporting groups mobilized against President Hugo Chavez, or politicians on both sides of the Atlantic continue to be engaged in a forced march to civil society in the Middle East, it is clear that the ways in which these ideas are interpreted does have a real impact on the lives of real people in the here and the now. As Keynes’s famous dictum reminds us, “practical men in authority who think themselves immune from theoretical influences are usually the slaves of some defunct economist”, just as present-day civil society builders are motivated by ideas deeply rooted in different schools of thought, but often unacknowledged, untested and insufficiently interrogated.

The second reason why this debate matters is that lasting solutions to problems of poverty, discrimination and exclusion are impossible to conceive of, at least for me, without a full appreciation of the roles of civil society in this new, threefold sense, especially when we compare these ideas to the failings of their competitors such as neo-liberalism, nationalism resurgent, legalism, centralized planning or continued authoritarian rule.

In all three schools of thought, civil society is essentially collective action – in associations, across society and through the public sphere – and as such it provides an essential counterweight to individualism; as creative action, civil society provides a much-needed antidote to the cynicism that infects so much of contemporary politics; and as values-based action, civil society provides a balance to the otherwise-overbearing influence of state authority and the temptations and incentives of the market, even if those values are contested, as they often are. Warts and all, the idea of civil society remains compelling, I think, but not because it provides the tidiest of explanations or the most coherent of political theories – it doesn’t and probably never will. It remains compelling because it speaks to the best in us – the collective, creative and values-driven core of the active citizen - calling on the best in us to respond in kind to create societies that are just, true and free.

World of counterterror

2011-08-03T18:16:00.000-07:00

War on terror

After the terrorist attacks in the US on 11 September 2001, the Bush Administration declared a ‘war on terror’ unlike any previous war. The suspected terrorists under attack were termed ‘illegal or unlawful enemy combatants’, a formulation designed by the US authorities to mean they were not covered by the 1949 Geneva Conventions applicable to prisoners of war. The war could be conducted anywhere, with the US claiming all the rights of a belligerent party under the laws of war, while denying those same rights to their adversaries.

By placing captives of this ‘war on terror’ in locations outside the US, such as Guantánamo Bay in Cuba, the aim was to create legal black holes beyond the reach of US and international human rights law. This is not permissible under international law.¹

The US has since detained thousands as ‘enemy combatants’ without proper legal recourse and subject to abuse.

Guantánamo Bay detention camp has housed 775 in inhumane conditions, of whom around 420 were released without charge – many to receiving countries where they faced further torture; 240 prisoners remain, awaiting the closure of the camp.

Extraordinary rendition

This is the term used to describe the abduction and illegal transfer of terrorist suspects by the US from one country to another, often to face torture. The alleged number of people so kidnapped by the CIA for ‘torture by proxy’ around the world is 3,000 and the number of secret flights is 1,245.3

Some of the states that have facilitated extraordinary rendition are:

Australia, Belgium, Bosnia, Britain, Canada, Cyprus, Denmark, Germany, Greece, Indonesia, Ireland, Italy, Macedonia, Pakistan, Poland, Portugal, Romania, Spain & Sweden.

Recipient countries where suspects have often been tortured include: Afghanistan, Algeria, Egypt, Jordan, Morocco, Syria, Thailand and Uzbekistan.^3,

Many European states have resisted disclosure of evidence which would reveal their complicity.

Recently, Kenya has carried out rendition of its own by transferring 40 people to Somalia and Ethiopia.

The law’s an ass

Inspired by the US example (and the notorious Patriot Act), states worldwide have brought in wide-ranging (and often vaguely defined) anti-terrorist legislation since 2001.

A few recent examples:

Swaziland – Suppression of Terrorism Act (2008) which has led to a crackdown on government critics
Bangladesh – Anti-Terrorism Ordinance (2008) gives even more clout to security forces who are notorious for extrajudicial executions.
India – security legislation amended following Mumbai attacks; legal detention periods extended.
Sri Lanka – August 2008 legislation allows for detention up to 18 months without being brought before a court.
France – those convicted of certain terrorist crimes can be detained after completing their sentences for indefinitely renewable periods of a year.
Britain – six different Acts concerning terrorism since 2001; strong campaigning defeats a measure to increase the time terrorism suspects can be held without charge.
Bahrain – ‘Protecting Society from Terrorist Acts’ law (2006) allows for the death penalty for acts which ‘prevent state enterprises or public authorities from exercising their duties’.
Egypt – a 2008 law gives authorities permanent emergency-style powers; the country has been in a state of emergency since 1981.
Australia – 30 items of anti-terrorist legislation passed since 2001, despite extant wide-ranging security laws.

Globally legislation increasing state surveillance and data gathering has proliferated.

Newly minted terrorists

Many countries have rebranded long-running conflicts as ‘terrorist’ to deflect criticism of ruthless measures – examples include Russia’s Chechen conflict, insurgency in the Philippines, Sri Lanka and parts of India, the bloody Maoist rebellion in Nepal. Nepal’s authorities passed legislation in November 2001 formally designating the Maoists as terrorists. In elections in 2008, the Maoists won the largest share of the vote.
Other recently defined ‘terrorists’ are:

Indigenous Mapuche people protesting for land rights in Chile;
Uighur and Tibetan demonstrators by China;
Protesters demanding clean water in El Salvador;
Human rights defenders and NGO workers in Peru and the Philippines;
Asylum seekers and members of banned Islamic groups in Kazakhstan;
Political opponents in Malaysia (who can face indefinite detention);
People exercising peaceful free speech in numerous countries, particularly in the Middle East.

Arbitrary detention, torture and worse

While many state agencies torture and kill people standing in their way, counterterrorism is increasingly being used as a justification. With the US, the world’s remaining superpower, rebranding torture (which is absolutely prohibited under international law) as a form of interrogation, and holding suspects without trial for years or hauling them before unfair military commissions, human rights have taken a beating.

Hotspots include:

Afghanistan – arbitrary arrests, detentions and torture by intelligence agents; NATO and US forces have handed over detainees to them. Confessions made under torture are permissible in court. Prisoners held in US-run Bagram facility have no legal representation whatsoever.
Pakistan – Inter-Services Intelligence agency responsible for numerous ‘disappearances’ with the Government admitting to 1,102 people disappeared in Baluchistan province alone. The problem was exacerbated by bounty offered by the CIA for terror suspects. CIA-sanctioned drones targeted to blow up terrorists have caused many civilian casualties both in Pakistan and Afghanistan.
Algeria – torture, prolonged secret detention without trial, prison beatings and unfair trials with courts accepting ‘confessions’ as evidence are the norm for terrorist suspects. Hundreds on death row on terror charges. Security forces given legal immunity against charges of human rights abuses.
Egypt – widespread torture by State Security Investigation officials and police, and trials by military courts. 1,500 people detained without charge according to official figures; 10,000 according to other sources. Egypt is the second largest recipient of US aid.
Iraq – in 2008, US forces held 15,500 people (despite the release of 13,000 earlier that year) without charge or trial for security purposes, and the Iraqi authorities held at least 26,000.
Israel – hundreds of Palestinians (including children) detained in the Occupied Palestinian Territories, many held incommunicado for long periods. Most released without charge but trials are held before military courts. Also uses aerial drones which have killed civilians.
Jordan – thousands held under suspicion of being ‘a danger to society’.
Morocco/Western Sahara – over 1,000 Islamist suspects held since 2006; torture is routine. Legacy of enforced disappearances.
Saudi Arabia – barbaric punishments for vague ‘offences’; 2,000 detained in secrecy on security grounds. The US and Britain praise and promise to learn from a Saudi ‘re-education’ programme that keeps suspects detained without charge or trial.
Syria – arbitrary and incommunicado detention widespread for people suspected of the slightest involvement in terrorist activity. Some 17,000 disappeared people, mainly Islamists, remain untraced.

Terrorism: They are terrorists, no two ways about it

2011-07-28T19:43:00.000-07:00

IN any part of the world, if there is a terrorist attack, suspicion always falls on Muslims first.

And if the terrorists are from another country, the media would label the countries from where the terrorists originate as pro-terrorist regimes.

Two atrocities -- one in Oklahoma City, the United States, in 1995 and the other in Oslo, Norway, last week -- should change these perceptions. These incidents show that one should not rush to label all Muslims as terrorists.

The definition of terrorist is different, depending on which point of view one holds. For the Palestinian people, terrorists mean freedom fighters.

But Timothy McVeigh, the man who carried out the Oaklahoma bombing, and Anders Behring Breivik, the man who killed at least 76 people in Norway, are regarded as mass murderers. They should be treated as terrorists.

Some analysts have been quoted by the foreign media as saying that these two could not be categorised as terrorists because they were locals who killed their own people. Isn't that a double standard?

A terrorist is a terrorist. Forget the fact that he is an outsider or that he belongs to some religious group.

The West should look at those who are right-leaning. Young people in Europe and the US are being influenced by those in the far-right.

Behring Breivik's 1,500-page manifesto indicates the seriousness of the matter and the West needs to give it serious consideration. The advancement of far-right thinking will hamper the advocacy of rule of law and human rights.

Rights and the constitution

2011-07-06T19:11:00.000-07:00

Yesterday I took almost three hours to reach my office.

While driving, I am thinking about the demonstration held by public servants throughout UK recently.

Then, my thoughts on our rights and the constitution.

After that, I am confused.

Then I saw the faces of other motorists on the road with me.

Probably they have the same thought as well.

I love my country.

What is the rule of law?

2011-07-06T19:02:00.000-07:00

"Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual."

The notion of the “rule of law” stems from many traditions and continents and is intertwined with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the King of Babylon around 1760 BC, is one of the first examples of the codification of law, presented to the public and applying to the acts of the ruler. In the Arab world, a rich tradition of Islamic law embraced the notion of the supremacy of law. Core principles of holding government authority to account and placing the wishes of the populace before the rulers, can be found amid the main moral and philosophical traditions across the Asian continent, including in Confucianism. In the Anglo-American context, the Magna Carta of 1215 was a seminal document, emphasizing the importance of the independence of the judiciary and the role of judicial process as fundamental characteristics of the rule of law. In continental Europe notions of rule of law focused on the nature of the State, particularly on the role of constitutionalism.

Recent attempts to formalize its meaning have drawn on this rich history of diverse understandings. The modern conception of the rule of law has developed as a concept distinct from the “rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to the principle of justice, involving an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Long before the United Nations, States were working towards a rule of justice in international life with a view to establishing an international community based on law.

Today, the concept of the rule of law is embedded in the Charter of the United Nations. In its Preamble, one of the aims of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”. A primary purpose of the Organization is “to maintain international peace and security… and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” The Universal Declaration of Human Rights of 1948, the historic international recognition that all human beings have fundamental rights and freedoms, recognizes that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”

For the UN, the Secretary-General defines the rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency." (Report of the Secretary-General: The rule of law and transitional justice in conflict and post-conflict societies” (2004))

The principle of the rule of law applies at the national and international levels. At the national level, the UN supports a rule of law framework that includes a Constitution or its equivalent, as the highest law of the land; a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions and processes that form the core of a society in which individuals feel safe and secure, where legal protection is provided for rights and entitlements, and disputes are settled peacefully and effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held to account.

At the international level, the principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State to State relations. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations recognizes the inherent link between the UN and the international rule of law. Its preamble emphasizes “the paramount importance of the Charter of the United Nations in the promotion of the rule of law among nations.” Drawn from existing commitments in international law, the core values and principles of the UN include respect for the Charter and international law; respect for the sovereign equality of States and the principle of non-use or threat of use of force; the fulfillment in good faith of international obligations; the need to resolve disputes by peaceful means; respect for and protection of human rights and fundamental freedoms; recognition that protection from genocide, crimes against humanity, ethnic cleansing and war crimes is not only a responsibility owed by a State to its population, but a responsibility of the international community, the equal rights and self-determination of peoples; and the recognition that peace and security, development, human rights, the rule of law and democracy are interlinked and mutually reinforcing. Appropriate rules of international law apply to the Organization as they do to States.

UNIVERSAL DECLARATION OF HUMAN RIGHTS

2011-07-06T18:49:00.000-07:00

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories."

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1.

All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

Everyone has the right to life, liberty and security of person.

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

The Evolution of International Law and the War on Terrorism

2011-05-26T22:58:00.000-07:00

Alan Baker, Legal Advisor, Israel Foreign Ministry
Col. Daniel Reisner, Head of the International Law Department,
Israel Defense Forces

A country -- whether it be Israel, or the United States in its fight with al-Qaeda -- whose army is involved in fighting a terrorist organization which has no state and no boundaries, has to be able to carry out those acts necessary to deal with terror.

What happens if the police see a suicide bomber who opens his jacket and shows his explosive belt? Can the Israeli police kill him? He hasn't done anything.

There is a rich international legal literature covering war crimes of military forces, but no agreed international legal definition that covers all cases of terrorism. There is a basic asymmetry in international law with respect to terrorists and armies fighting terrorism that needs to be resolved.

If we receive information about a terrorist bomber going to carry out a suicide attack and we can catch him en route, and shoot a missile into his car while he's trying to come into Israel, are we permitted to do so? The answer is definitely yes. The United States has now targeted combatants in the same way in its drone attack in Yemen.

International law must recognize terrorists as combatants and not as civilians.

No Accepted Definition of Terrorism

Alan Baker: There are several international conventions that define war crimes, but there is no internationally accepted definition of terrorism. There is not one international convention that actually condemns terrorism.

One definition of terrorism was given by the Convention of the Organization of the Islamic Conference on Combating International Terrorism in 1999:

Terrorism means any act of violence or threat thereof, notwithstanding its motives or intentions, perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people, or threatening to harm them or imperiling their lives, honor, freedoms, security or rights, or exposing the environment or any facility or public or private property to hazards or occupying or seizing them or endangering a natural resource or international facilities or threatening their stability, territorial integrity, political unity, and sovereignty of independent states.

A terrorist crime "is any crime executed, started or participated in to realize a terrorist objective in any of the contracting states or against its nationals." This is a very thorough definition; however, in Article 2 of this regional convention by the Conference of Islamic States, it says, "peoples' struggle including armed struggle against foreign occupation, aggression, colonialism, hegemony, aimed at liberation in accordance with the principles of international law, shall not be considered a terrorist crime."

In other words, attempts to define the attack on the World Trade Center or attacks in Israel as terrorism would be scuttled by the Conference of Islamic States. The Islamic states insist that fighting an occupation cannot be considered terrorism. Similarly, Hizballah in Lebanon claims that what they are doing today, or before Israel withdrew from Lebanon, is not terrorism. It is resistance, they claim, something that is permitted according to international law.

In fact, there is no such right of resistance to occupation in international law. When placing the question of terrorism opposite the question of international war crimes, we meet the difficulty that terrorism has not yet been defined as a war crime. The components of terrorism are war crimes, and the international community is working to develop a definition of the crime of terrorism.

Israel faces the dilemma of having bilateral commitments with the Palestinians, including commitments by the Palestinians not to engage in terrorism. In a letter signed on the eve of the first Oslo agreement in 1993 on the White House lawn, part of an exchange of letters between Yasser Arafat and Yitzhak Rabin, Arafat undertook not to carry out acts of terror, to bring to trial those who had been involved in terror, and to solve all future problems with respect to settling the questions between the two parties in a peaceful manner. There are very detailed provisions in the various agreements with the Palestinians requiring them to fight terror, collect illegal arms, fight incitement, and do all sorts of things.

How are we going to deal with the fact that there is terror being carried out on a daily basis in Israel? To explode a bus is very similar to exploding planes on the World Trade Center. How is the international community going to deal with this? Are we going to continue to see this double standard? While everybody acknowledges that there is terror and that Israel has the right to fight terror, when Israel does fight terror it is accused of carrying out war crimes.

A Country Must be Able to Defend Against Terror

The war crimes definitions fit the Geneva Conventions and international law up to World War II and immediately afterwards, when armies were fighting armies. Yet with the development of terrorism by groups that are not state entities, the whole concept of what a war crime is has changed. But the international community has not yet developed the legal texts in international law that fit these developments. A country -- whether it be Israel, or the United States in its fight with al-Qaeda -- whose army is involved in fighting a terrorist organization which has no state and no boundaries, has to be able to carry out those acts necessary to deal with terror. If this means using a helicopter or sending a drone to target terrorists, then this is perhaps what is necessary, and such actions should not be considered a violation of international conventions or a war crime.

Drafting an International Convention Against Suicide Terrorism

Given this clear legal necessity, Israel has decided on its own initiative to draft a new international convention against suicide terrorism to offer the international community. The convention would be directed against those elements who assist in financing, incitement, family support, or state support of such terrorists.

In Western European countries such as the Scandinavian countries, people are permitted to demonstrate wearing mock suicide belts. Such scenes are interpreted by Palestinians as approval and support for such actions. This is why there is a need for an international convention. Several countries, including Russia, India, and Germany, have expressed interest in the draft being prepared by Israel.

Who is a Combatant?

Col. Daniel Reisner: There are no books on international law and fighting terrorism, and no conventions on how to fight terrorism.

Classic international law deals with two generic situations: war and peace. There is a big rule book dealing with the laws of warfare, the laws of how to open war, how to end war, what weapons may be used, how to treat captives. Different rules apply to countries when there is peace.

Where does a terrorist fit in to this structure? In peacetime, people are divided into two different categories. They are either law-abiding citizens or criminals, to be dealt with by the police and the courts.

In wartime, people are divided into two different categories. They are either civilians or combatants. Who is a combatant? is a big question in international law, but there is general consensus that anyone taking part in hostilities is a combatant, regardless of where he lives or whether or not he wears a uniform.

Where does a terrorist fit in, such as a suicide bomber? Is he a criminal offender? Are we supposed to send the police to catch him en route? What happens if the police see a suicide bomber who opens his jacket and shows his explosive belt? Can the Israeli police kill him? He hasn't done anything. If he is a criminal offender, he cannot be shot because he hasn't blown himself up yet. He's a potential terrorist but he hasn't done it yet. No country in the world has come up with a good response as to what should be done to a suicide bomber. This police matter actually occurs to policemen in Israel and some of them have died.

What is the main significance of the difference between combatants and civilians in warfare? The difference is that an army has the right to initiate fire and kill combatants. Must a combatant be given a chance to surrender? Absolutely not. An army can launch a missile from 25km away at a target which has no idea it is being targeted, and kill everyone inside a military base, because all soldiers are fair game in warfare, irrespective of their position. Those are the clear rules of warfare.

The law breaks down when civilians start taking up weapons because the law's main objective is to protect civilians in warfare. The idea is that armies can take care of themselves, but the civilians need help. The law says civilians may not be targeted and they and their property are not to be harmed. But what happens when a civilian picks up a rifle and shoots at an army vehicle and then drops the gun on the ground. What can be done to him? If he were a soldier I could kill him. If he surrenders, I have to accept his surrender. But with a civilian combatant, do I continue shooting, or because the danger has now passed I treat him as a criminal offender once again? Does he go back to being a civilian just because he put down his rifle? Let's say he didn't put down his rifle, he just ran out of ammunition; is he still a combatant?

Defending Against "Ticking Bombs"

For the past year and a half, Israel has had a policy relating to what we call "ticking bombs," terrorists who we know are going to carry out very severe attacks in the near future and whom we are unable to arrest. Our policy is to "take them out." However, they have a tendency to hide in populated civilian areas, which raises the problem of collateral damage. We want to minimize the effect on civilians.

When we started this policy, we took a lot of criticism from the international community, which said, "How dare you kill civilians?" We replied that they are not civilians. They cannot be civilians if they are fighting. If we receive information about a terrorist bomber going to carry out a suicide attack and we can catch him en route, and shoot a missile into his car while he's trying to come into Israel, are we permitted to do so? The answer is definitely yes. Why? Because he is a combatant, so we may shoot him. We have actually convinced most of the international community that we can do this because it makes sense and complies with the old laws of war. These terrorists are genuine combatants, they are fighters, they are on their way to carry out attacks. The United States has now targeted combatants in the same way in its drone attack in Yemen.

Why are Palestinians Never Considered Combatants?

There is a basic asymmetry between an army and a terrorist organization that works in favor of the terrorist organization. The army has to wear uniforms and carry arms openly. The terrorists know where we are and where we can go, while they can hide. They can take out their weapons and shoot and then hide the weapons again. When the army shoots back, it is accused of shooting "civilians." When anyone on the Palestinian side is killed, he is never considered a combatant.

The IDF has finished compiling its response to the Amnesty International report on Jenin. Amnesty reported that there were between 100 and 150 Palestinian combatants in the camp. The Palestinians themselves reported on their website that there were 250. Amnesty claimed that the army destroyed 3,000 buildings. Based on aerial photographs, there were 120. Amnesty claimed that the army did not allow medical transports to travel into Jenin. Then how did 257 people get to hospital in Jenin and another 70 to hospitals in Israel during the fighting? We have video footage of ambulances going in and out all day. It is very easy for the media to get carried away with stories of atrocities by armies, and it is very difficult to bring footage of the opposite.

International Law Must Adapt

International law does not address terrorism in any form or fashion, so Israel has come to the recognition that it is now in a situation of armed conflict against terrorism. The problem is that this is an armed conflict in which I cannot specifically tell you who my enemy is. I know him when I see him, but I can't give you a total list in advance. Interestingly, U.S. President George Bush came to the same conclusion. He published a military order in his capacity as Commander in Chief of the U.S. Armed Forces, saying, the "United States is in an armed conflict against al-Qaeda."

International law will have to evolve and adapt itself to the new reality. The countries which have no terrorism committed against them are the most disinclined to change the law, and there is a bloc of Arab countries with an interest in leaving the law in relation to terrorism empty. Yet if international law wants to survive this new period, it must give countries and armies the tools to fight terrorism instead of requiring those who must do so to adapt by ourselves and then hope people will agree with what we're doing.

Terrorism is no longer just a theoretical issue. It affects every one of us in this part of the world. We need to adapt our thinking and find a way to reach the correct balance between protecting human rights, protecting civilians, and allowing governments the freedom to deal with those terrorists, because people who are fighting without reference to the rules don't deserve any protection.

Does Religion Have Anything to Do With Terrorism?

2011-05-26T22:46:00.001-07:00

by Michael Greaney

Religion has nothing to do with terrorism—and everything.

Distortions of the teachings of various organized religions have always been used to justify everything under the sun. Similarly, great wrongs have been committed in the name of the family and the State. It should come as no surprise that activities by terrorist or insurgent groups in the name of various religions over the past several centuries have succeeded in giving all organized religion, and ultimately all forms of religious belief, a very black all-seeing eye. If such-and-such can be done in the name of religion, the reasoning goes, then religion must be a very bad thing indeed.

Such reasoning, while plausible, is not well thought out. It is a form of the logical fallacy called “hasty generalization.” That is, because we see instances of the misuse of organized religion, we generalize on insufficient knowledge and data, and assume that all organized religion (and ultimately all religion) constitutes misuse of what Aristotle called the “virtue of religion.” That is, by engaging in terrorism, individuals and groups are acting contrary to the habit of rendering to that which you believe to be God (or gods) His (or their) due as Supreme Being (or beings). Such hypocrisy—so we assume—invalidates the beliefs and motivations, real or imagined, behind the actions.

Human society is divided into three principal parts. These are domestic society (the family), civil society (the State), and religious society (organized religion). Demagogues have always used the natural affinity that normal people have for all three parts of human society to distort and pervert people’s beliefs in order to achieve their private ends. This is particularly so when they make the Machiavellian assumption that the end justifies the means. The visceral reaction that normal people feel when they are persuaded that their family, faith, or country is in danger can very easily be manipulated by unscrupulous individuals or groups—all in a good cause, of course.

This is in large measure how other people can be persuaded that, because religion is used to justify terrorism, religion is bad. Similarly, because “patriotism is the last refuge of the scoundrel,” we risk falling into the error that patriotism isn’t the first refuge of the patriot. Anyone professing religious belief or expressing patriotism is, ipso fact, a hypocrite and a scoundrel. Family, faith, and country, because of the distortions and violations we see in the name of all three, become viewed by the cynical and suspicious as phony, ploys used to trap and control the gullible.

The only solution to this problem is to reorient people and help them to understand that organized religion, as well as family, and the State, have specific and necessary roles to play. We cannot allow such critical social props to be hijacked by any individual or group bent on using them in support of “brief and transient causes”—or anything that is not ordered for the benefit of everyone within the common good and in a manner consistent with that essential human nature on which society is based.

The social order must be restructured to comply with basic principles of natural law, which human reason helps us discern, and which organized religion helps us learn and understand. The natural law being consistent with human nature and based on it, this will maximize the delivery of justice within the social order. It will thereby remove the chief cause of terrorism: people convinced that others are treating them unjustly, whether or not this is true.

Once the structures of injustice have been removed or reformed into structures of justice, the family, the State, and, yes, organized religion can take their proper places in a well-organized social order. This will not be achieved overnight, but removing the causes of terrorism will ultimately eliminate terrorism.

One possible program that would in large measure remove the causes of terrorism in the Middle East is called the “Abraham Federation,” a proposal developed by the interfaith Center for Economic and Social Justice.

The Abraham Federation, while based on principles found in the three great Abrahamic faiths of Judaism, Christianity, and Islam, can be adapted for use in virtually any set of circumstances. This is because the essential principles of the Abraham Federation—an application of a proposal called “capital homesteading for every citizen”—are consistent with the natural law discerned in and derived from human nature.

Yes, religion has everything to do with terrorism—just as it has everything to do with eliminating it.

Behavioral Genetics: Weltanschauungs of Natural Law, Crime and Identity by Dallas F. Bell, Jr.

2011-05-20T08:18:00.000-07:00

1. Introduction

Genetics is a branch of biology that deals with the science of heredity and variation of organisms. In the 1800s, Gregor Mendel sought to understand mechanisms of inheritance. Over 3,000 years earlier, Moses recorded that Adam had begat a son (c. 3811 B.C.) in his own likeness and image (Gen. 5:3). Moses also wrote that the father of Israel, Jacob, selectively bred cattle, sheep and goats (Gen. 30:31-43). Around 61 A.D., the New Testament writer, James, noted that a fig tree can not bear olives (James 3:12). For thousands of years, people have known that animal and plant life produce the same animals and plant life. This means a kind or species produces the same kind or species with variations within its genetic parameters (Gen. 1:11-31).

Mendel observed that inheritance occurs from traits called genes. All life has cells that contain genes molecularly structured in DNA. DNA is composed of a chain of nucleotides. Genetic information is contained along the sequence of the DNA chain. Each cell contains a complete copy of that species' DNA, called a genome.

Genes express their function through the production of proteins. Proteins are complex molecules responsible for most functions in the cell. Proteins are chains of amino acids, basically, where the DNA sequence of a gene is used to produce a specific protein sequence. Each group of three nucleotides in the sequence, called a cordon, corresponds to one of twenty possible amino acids in proteins. That correspondence is often referred to as the genetic code.

Chromosomes are arranged linearly along the chain of DNA sequence. Humans have 23 pairs of chromosomes in each cell. This is two fewer chromosomes (one pair) when compared to chimpanzees. Before 2002, Darwinian evolutionists commonly claimed that humans differed genetically from chimpanzees by only one or two per cent and that chimpanzees were relatives of humans. This is much like saying that the metallic element of gold (Au has 79 electrons, 118 neutrons and 79 protons) evolved from the metallic element of lead (Pb has 82 electron, 125 neutrons and 82 protons) because of the similarity of its makeup. Since the genome project's completion of mapping the genetic sequence of humans in 2001 and the beginning of sequencing chimpanzee DNA, the recognized differences have increased to around 4.8%.[1]

Each gene contains hundreds or thousands of bases. This means the seemingly small differences in humans and chimpanzees is enough to change the amino acid sequence of 83% of the proteins generated by the 231 genes on the chromosomes. Major differences in the structure of over 20% of the proteins have also been discovered. Thus, these differences discovered by geneticists are greater than expected. [2] Those differences have caused some people to question their Darwinian theological faith that produces their epistemological weltanschauung (German; meaning world view), especially the core belief of a chimpanzee and human common descent.

Reginald Punnett (1875-1967) introduced a convenient method for analysis of small numbers of unlinked genes. The Punnett square displays the male parent's genetic input along the top (AB, Ab, aB, ab) and the female parent's genetic input down the left side (AB, Ab, aB, ab). The intersection of the vertical columns and horizontal rows indicate the square with the predicted phenotype of each combination. For example, a fig does not have the inherited genetic code to become an olive species or any other species than a fig like its parents. However, a fig can vary within inherited options such as pigment etc. This natural selection operates like a decision-making matrix where the possible outcome is limited to the parts of its construction.

The field of genetics includes new disciplines that may be known by different names or by differing parameters until one name and parameter emerges to become widely academically accepted. Biogenetics, gene splicing or genetic engineering is one such field. Those descriptive terms are applied to the manipulation of genes generally beyond that organism's natural process. This involves the isolation, manipulation and reintroduction of DNA into cells in order to introduce new characteristics into the organism.

Another field is neurogenetics pioneered by Seymour Benzer (1921- ). Broadly defined, neurogenetics is the science of studying how genes control development and function of the nervous system and the brain, and thus influence behavior. Benzer realized that to differentiate between the behavioral effects of nature and nurture, the environment needs to be constant and the genes altered. He used Drosophila (fruit flies) for their relative ease to study the sleep patterns or circadian rhythm. The fruit flies were exposed to mutagenic poison to generate the mutation of genes. Normal flies arose around daybreak every 24 hours but the mutated flies arose at random times indicating the lack of an innate rhythm. This seemed to show that the internal clock of fruit flies was genetic.

For the purposes of this paper the genetics focus is on the field of behavioral genetics. Behavioral genetics studies the role of genetics in animal behavior. Of specific emphasis in systematic political science are the genetic causes for behavioral effects in humans.

2. Behavioral Genetics

Francis Galton, a cousin of Charles Darwin, is credited with being the first to study heredity and human behavior systematically. Galton's controversial work in 1869 titled Hereditary Genius sought to separate the genetic from the environmental to show the inheritance of intellect and talent.

Human genetics determines the genes of what we are, such as having 10 fingers etc. Heritability is what causes variations, such as having 12 fingers etc. An estimate of heritability of a trait attempts to indicate how much of a variance of that trait is due to genetic differences. This number is characterized by a decimal .xx. Monozygotic (MZ) twins, called identical twins, are derived from the same single cell and are an exact genotype. IQ testing for correlation has indicated a .84 and .88 similarity of MZ twins raised together and a similarity of .75 for MZ twins raised apart. Dizygotic (DZ) twins, called fraternal twins, are derived from two different eggs. DZ twins average sharing 50% of their genes and have shown a correlation of .54 when growing up together and a .46 correlation when raised separately. Given that unrelated children have a correlation of .17, it would seem overwhelming that the genetic component has a direct influence on IQ scores.[3]

Genetic differences can lead to phenotypic differences causing differences in the environment which then can affect the phenotype. That reality often causes the misconception that heritability is not very causal to behavior and environment is most causal to behavior.[4]

There are two categories of behavioral genetics. The first is the study of the relationship between predetermined behavior and the physical realm of natural law (NLP). The second is the study of the relationship between behavior with choice or freewill and the nonphysical realm of natural law (NLF).

2.1. NLP

The relationship between human behavior and NLP is predetermined. It has already been demonstrated that IQ gives the problem solving ability for a lifetime, unless that potential is unnaturally altered. Like IQ, left-handedness and right-handedness may have a genetic component. In 2002, C. Francks et al. performed a genomewide quantitative trait locus (QTL) linkage analysis using a continuous measure of relative hand skill (PegQ) rather than treating handedness (2p12-q22) as a categorical state. A QTL on the chromosome 2p12-p11.2 yielded strong evidence for linkage to PegQ and another suggestive QTL on 17p11-q23 was also identified.

Relative hand skill appears to be a multifactorial phenotype with a heterogeneous background but nevertheless is amenable to QTL-based gene mapping approaches. C. Francks et al. (2003) found non-right-handedness to be moderately associated with schizophrenia. Both traits are often accompanied by abnormalities of asymmetrical brain morphology or function.

Unlike Down's syndrome where there is an extra chromosome that decreases IQ, most traits involving behavior have a complex genetic basis. A variety of genetic and environmental factors are involved in the development of any trait which makes the product of modeling and simulation to be in probabilities of outcomes. Shyness may develop into social phobias, alcoholism and determine types of occupations that are accommodating to abilities. Having a genetic variance does not necessarily mean that a particular trait will develop. Genes may turn on or turn off and factors may exist to keep it turned off. The protein encoded by a gene may also be modified so that it can behave normally. Unfortunately, disorders such as Huntington's disease have a specific mutation that confers the certainty of developing the disorder.

Behavioral genetics that predisposes behavior toward reacting to physical natural law without choice or freewill is a growing field with many a pitfall or créé de cur. For example, a 2003 paper by authors with Darwinian world views claimed that cannibalism shaped the prion gene for all people as evidenced by the disease of New Guinea cannibals (the Fore linguistic group). A few years later the paper was disproved. (Violations of natural law such as cannibalism must be logically acceptable behavior by evolutionists. Deut. 28:53-58; 2 Kings 6:28-29.) Another example in 2003, Darwinian evolutionists Z. Zhang et al. determined that the sequences of DNA that seem to be nonfunctioning, called pseudogenes, are genomic rubbish. R. Wiedersheim (1895) inaccurately noted that more than eighty human organs were not functional and were rubbish. Scientists did not understand organs then nor may they understand genes today.

2.2. NLF

The relationship between human behavior and NLF involves choice. The NLF or Decalogue (La, 1, 2, 3, 4, Lb, 5, 6, 7, 8, 9, 10) and their subsets have historically proven their behavioral options to be a choice. Although, the environment may trigger behavior and/or there may be a proclivity toward noncompliance with NLF. If the proclivity for noncompliance is true then it is reasonable that there might be a proclivity toward compliance with NLF.

Human choice is evidenced by observing the same people at times that elect to steal and not to steal. Other examples are lying, adultery, murder etc. An environmental trigger may cause someone that is hungry to steal when they would not otherwise consider the option.(Prov. 6:30-31; 30:9) There may be proclivities toward alcoholism or the use of mind altering drugs. The intellect can be used to prevent a situation that would enhance the likelihood of those destructive behaviors. Adultery or sexual deviancy may be proclivities, but acting on them would still be a choice to violate NLF. All healthy adult married males will at some point lust toward a woman that is not their wife. Those same males have the intellect to not act on that proclivity.(Job 31:1) Wives should have the expectation that their husbands will be loyal to them and not act on adulterous tendencies. Their children should also have the expectation that their parents be loyal to each other.

If a proclivity such as adultery is fed by dominating the neurons with pornographic input the point will eventually be surpassed that allows the intellect to have resistance to compulsively acting on the tendency.(1 Cor. 15:33) In 2006, Zhang Zhihe exposed sexually disinterested male pandas in a zoo to audio and visual mating of pandas. They began acting out the so-called panda porn by mating. Even nonhumans can be triggered to behave toward a proclivity. Proclivities such as overeating or yawning can be influenced by the power of suggestion.

People that comply with NLF and people that choose not to comply with NLF form the institutions of families, churches, businesses and governments. Those institutions increase the societal efficiency of effort to pursue the hierarchy of common individual human needs. The rejection of La, 1 and Lb endanger the compliance with other attributes, e.g. love and justice or even truth itself. The controversial subject of behavioral genetics of the relationship between NLF and choice may be modeled and simulated.

3. Crime and Identity

3.1. Crime

Historically, crime has been considered to be human behavior that is not compliant with NLF. People with a world view of acceptable noncompliance with NLF, such as cannibalism, logically do not consider their lack of compliance with NLF as criminal behavior worthy of either judgment or punishment by societal law. In the late 19^th and 20^th centuries, theories relied on now discredited beliefs that criminals were hereditarily inferior and of low IQs. In the 1960s and 1970s, men with an extra Y chromosome (XYY) were wrongly thought to be prone to violence.[5]

There seems to be a growing consensus that crime is not completely genetically or not completely environmentally influenced.[6] However, concordance between MZ twins for property crime (1 Cor.6:9-10) has generally been greater than for DZ twins. Property crime for adopted individuals increased significantly when a biological parent was convicted. Males exhibit more property crime behavior than females. Opposite sex DZ twins are less similar than same sex DZ twins.[7] As demonstrated in section 2.2 of this paper, freewill exists and allows the resistance of the tendency to not comply with NLF.

3.2. Identity

In logic, true identity can be defined as the relation that holds only between a thing and itself. So all x and y (x = y) is true iff x is the same as y. Finite humans use this logic to identify others and themselves. Young school children may identify someone as tall or short. In reality no one is equal to tallness or shortness. Those identities are relational to the qualities of other individuals and may be rejected or accepted depending on the world view.

The world view of the infinite God of the first cause of all that exists guarantees an eternal change and identity.(Heb. 9:22-28) This change comes when that God is accepted.(John 3:16) Then His NLF (Decalogue) will be desired to be complied with and that identity will be superimposed over the past criminal identity or sinful nature.(Rom. 6:1-2, 14) Sin and therefore death is inherited.(Rom. 5:12) Samuel was an ancient Hebrew judge who was not sinful, but his biological sons took bribes as judges to pervert judgment.(1 Sam. 8:1-5) Mankind's eternal identities are relational to God and then to His NLF. Humans have a choice as to which world view and identity they will accept. Either the world view of the infinite God will be accepted or another authority and standard must be epistemologically adopted.

Governments are beginning to collect DNA to identify citizens for later oppression. Businesses and governments are collecting data on individuals, such as credit card information, to form identities for controlling and manipulating those people.(Rev. 13:11-18) It must be remembered that the eternal identity can not be stolen.

4. Conclusion

Progress in the field of behavioral genetics is exciting and challenging.(Prov. 8:12) The more knowledge man gains from science, the more reinforcement there will be of a weltanschauung compatible with the infinite God of the first cause and His laws.(Rom. 7:5-25) All finite humans have proclivities (Rom. 3:23), but also have a choice to follow them to destruction or resist them.(Heb. 12:4) That idea is in itself a world view and hopefully worth emulating. God is good (1 John 4:8,16) and just (Ps. 89:14). God's election for saving grace is real.(Matt. 24:22, 31) God is not willing that any should perish, but that all people come to repentance.(2 Peter 3:9) He will ultimately love whom He elects.(Rom. 9:11-24) Mankind does not have an epistemological choice to have no world view and the world view each person accepts will determine each person's behavior.

References (A partial list.)

[1] Britten, R.J. (2002). Divergence between samples of chimpanzee and human DNA sequence is 5%, counting indels. Proc. Natl. Acad. Sci. USA 99: 13633-16335.

[2] Fujiyama, A. et al. (2002). Construction and Analysis of a Human-Chimpanzee Comparative Clone Map. Science 295: 131-134. Asao Fujiyama is a consortium member at the Japanese National Institute of Informatics in Tokyo. His comments on the surprise of human and chimpanzee chromosome differences were recorded in 26 May 2004 by the New Scientist.

[3] Loehlin, J.C., Lindzey, G., Spuhler, J.N. (1975). Race differences in intelligence. San Francisco: W.H. Freeman.

Segal, N.L. (1991-2003) Writings on MZ and DZ twins.

Herrnstein, R.J., Murray, C. (1994). The Bell Curve. New York: Free Press.

[4] Sesardic, N. (2003) Philsophy of Science, Vol. 70, pages 1002-1014.

[5] Wikin, H.A. et al.(1977). Criminality, aggression, and intelligence among XYY and XXY men. New York, Gardner Press.

[6] Jones, O.D. (2006). Behavioral Genetics and Crime, in Context. Comments by Owen Jones were made at the Duke University Law School and in a subsequent paper.

[7] Baker, L.A., et al. (2006). A paper titled Behavioral Genetics: The Science of Antisocial Behavior.

Crime and Natural Law

2011-05-20T08:09:00.000-07:00

Crime

A crime is an act which violates a law of a government, nation-state, or jurisdiction, for which there is no successful defense. According to Western jurisprudence, there must be a simultaneous concurrence of both actus reus ("bad action") and mens rea ("bad mind") for a crime to have been committed; except in crimes of strict liability. In order for prosecution, some laws require proof of causality; relating the defendant's actions to the criminal event in question. In addition, some laws require that attendant circumstances have occurred, in order for a crime to have occurred. Also, in order for a crime to be prosecuted, corpus delicti (or "proof of a crime") must be established. A crime can be the action of violating or breaking the law, having the intention of doing so or helping others in the process; in some systems the simple association for organising a crime is punished, even if the fact is not verified and usually for many crimes the attempt too is punished, even if the crime is not completed. Crimes are viewed as offenses against society, and as such are punished by the state. They can be scholastically distinguished, depending on the passive subject of the crime (the victim), or on the offended interest, in crimes against: * the personality of the State * the rights of the citizen * the public administration * the administration of justice * the religious sentiment and the pity for dead * the public order * the public faith * the public economy, industry and commerce * the public morality * the person and honour * the patrimony Or they can be distinguished depending on the related punishment (then, on the degree of offense that the forbidden behaviour caused), in delicts and violations. In general, in most western systems, the definition of a crime requires the existing intention of committing it (voluntas necandi) in the author, therefore it is usually not punished when this intention is missing or when the author has not a complete mental sanity or is under a certain age. In many systems the penal responsibility is personal, and the retroactivity of the penal law is forbidden so that no one can be punished for a fact that the penal law didn't already describe as a crime at the moment in which the crime was committed. The definition of a crime generally reflects the current attitudes prevalent in a society. For example, possession of drugs was not always a crime, while the Prohibition Era made alcohol illegal. The first civilizations had codes of law, though these codes were not always recorded. The first known written codes were written by the ancient Sumerians, and it was probably their king Ur-Nammu (reigning on Ur in the 21st century BC) the first legislator of which we received a formal system in 32 articles; it has to be recalled that this is not among the eldest laws, since not all the ancient laws are penal rules. In the antiquity, in fact, codes mostly contained both civil and penal rules together. Sumerians however later issued other codes as the one known as "code of Lipit-Istar" (last king of the 3rd dynasty of Ur, Isin - 20th century BC). This code contains some 50 articles and has been reconstructed by the comparison among several sources. In Babylon the code of Esnunna before, and the code of Hammurabi (one of the richest ones of ancient times) after, were used and reflected society's belief that law was derived from the will of the gods. Similarly, some codes of conduct of religious origins or reference have been included in penal codes, forbidden behaviours resulting in real crimes in the states ruled by theocracy even in more recent times. Penal law in USA The current American legal system derives from English common law, usually case law rather than statutory law, in all states except Louisiana, which follows a French system. Crimes are divided into categories and subcategories of definition, under which fall many specific crimes. For example, homicide is the subcategory, of the violent crimes, which includes murder, manslaughter, and in some states, self-abortion or "abortion without consent of the female". Arson and theft are examples of property crimes. Each state has its own penal law, which is frequently based on the Model Penal Code. There are also federal statutes, though the defining of federal crimes only became popular in the 1940s and 1950s. Crimes are generally classified into different degrees of severity, including violations, misdemeanors, and felonies. Violations are punishable by a fine, misdemeanors are punishable by up to a year in a state penitentiary and/ or a fine, and felonies are punishable by a year or more in a state prison and/ or a fine. Natural law theory of crime An alternative view of crime is derived from the theory of natural law. In this view, crime is the violation of individual rights. Since rights are considered as natural, rather than man-made, what constitutes a crime is also natural, in contrast to laws, which are man-made. Adam Smith illustrates this view, saying a smuggler would be an excellent citizen, "had not the laws of his country made that a crime which nature never meant to be so." Natural law theory thus distinguishes between criminality and illegality, the former being derived from human nature, the latter being derived from the interests of those in power. This view leads to a seeming paradox, that an act can be illegal that is no crime, while a criminal act could be perfectly legal. Many Enlightenment thinkers such as Adam Smith and the American Founding Fathers subscribed to this view to some extent, and it remains influential among so-called classical liberals and libertarians. Persons convicted of serious crimes are often punished by being kept in prison, for a term of years. There are about 2 million people in prison in the United States. Malum in Se and Malum Prohbita A crime malum in se is argued to be inherently criminal; whereas a crime malum prohibitum is argued to be criminal only because the law has decreed it so. Types of Crimes Crimes can be divided into several (overlapping) categories: computer offences, crimes against persons, crimes against property, crimes against state security, drug offences, sexual offences, and weapon offences. Crimes are also be grouped by severity, some common categorical terms being: felonies, indictable offences, infractions, misdemeanors, and summary offences. An inchoate offense is a planned or attempted crime, which the offender was not able to carry out prior to arrest.

Jasmine Revolution and Osama Bin Laden

2011-05-20T07:52:00.000-07:00

Dear friends,

It's a quite a while I am not connected to you. As usual busy with my works.

Let's we re-examine the impact of Jasmine Revolution which swept the Muslim countries coincide with the death of Osama Bin Laden.

In my opinion the both events are interrelated. It's very obvious that the intervention of Nato and USA on Libya very drastic compared with the countries on revolution.

Reason......oil.

The death of Osama in accordance with the demands of the internal politics of USA. Recent 'fixed up' IMF head can be one of those things 'internal factors' controlling external outcomes.

World is an opera stage. Actors are control by a director who has an agenda to show to the audiences.

That's what is happening now.

See you very shortly later......till than take care....

paneir

Ethics and Natural Law

2011-01-11T20:25:00.000-08:00

By:

Kort E Patterson

Our modern lives are full of the gadgets and artificial creations of the mind of man, but there is one artifact of human intelligence that makes all the rest possible - the civilization in which we live. With nearly all of our accumulated knowledge acquired during man's relatively brief period of civilization, we tend to take for granted that civilization has always existed and is somehow an inevitable state for mankind.

Outside of a few primitive cave paintings, all of our recorded history is the record of human civilizations since mankind only gained the ability to record history after the dawn of its first civilization. We tend to forget that all of recorded history only represents a tiny percentage of the time modern man has roamed the Earth. Statistically, civilized life is an aberration in the human condition while living rough as small groups of nomadic hunter-gatherers is the norm by a wide margin.

Assuming that civilization is a desirable condition, and the default state of humanity is the absence of civilization, it would seem appropriate to put some effort into understanding how we got to this stage. It would also seem reasonable that a clear understanding of how we got where we are now is also a necessary step in building a desirable future.

Where does civilization come from? Is it the result of a natural progression, or an entirely artificial condition that has evolved out of modern man's unique ability to expand his abstract consciousness beyond the details of his physical world? Perhaps more importantly, our modern industrial civilization functions primarily according to basic principles often referred to as secular ethics, but humans are the only animals on earth that recognize secular ethics. Where did we get the core concepts on which we've erected this magnificent edifice?

While modern industrial civilization claims to embrace the principle of mutual respect for life and property (often called the Golden Rule), past civilizations have been based on far different philosophical foundations. There are some who hold that civilizations arise spontaneously as a result of a concept called "natural law". Ancient Greek philosophers postulated that there is a body of universal principles they called natural law that are self-evident and obvious to reason, and which are revealed whenever mankind allows himself to consider his world rationally. The proponents of natural law have proposed that there are certain natural human rights that exist outside of the rule of custom, manmade law, or the commands of rulers. The concept of natural law has at times been the dominant political philosophy.

The concept of natural law has been used at various times in history to counter the claims of the divine right of kings and other appeals to higher authority. It is claimed that beliefs in natural law empowered the French Revolution and were the basis for the assertion of "certain inalienable rights" in the founding documents of America. The proponents of natural law hold that natural law provides the basis for positive law - manmade laws that attempt to implement the principles of natural law. In theory, the universality of natural law mandates that it will encourage the creation of fair and just societies whenever mankind allows itself to rationally consider its world.

The proponents of natural law have long claimed that their concept is a solution to the age old problem of claims to artificial authority such as the divine right of kings. However, in practice natural law nearly always becomes itself an appeal to the illusion of authority, providing a unfounded means to subvert true logic and block the evolution and refinement of secular ethics. After all, it is the very definition of natural law that by being the result of entirely self-evident and obvious universal truths, the concepts of natural law are intrinsic aspects of reality and must therefore be superior to any concepts that are solely the product of man's intellect. Any concept that can be assigned to natural law gains a significant advantage over any competing ideas.

The core problem with the theory of natural law is that it devolves into an appeal to the obvious - that its principles are so self-evident that they need no further validation. However, because man evolved as a generalist, his perspectives are always heavily influenced by context - what is self-evident and obvious to us is critically dependent on the context in which we frame our own peculiar world view. This is the flaw in the concept that has allowed natural law to be such a slippery philosophy down through the ages. By claiming "obvious truths" from vastly different contexts, natural law has been used to defend a wide variety of social structures ranging from America - which although still flawed has aggressively embraced the broadest application of the golden rule of any major society in history - to the murderous evil of the Nazis and Communists.

Even the ancient Greeks who originally postulated the universality of natural law found the concept to be exceptionally flexible. Consider the conflicting perspectives on natural law of the ancient Athenians and the citizens of Melos. Melos was a small relatively sparsely populated island that, in spite of being a former Spartan colony, had maintained its neutrality during the Peloponnesian war. The Melians believed that since they had done the Athenians no wrong and sought only peaceful relations with their neighbors, natural law required that their neighbors should similarly respect their right to live in peace. Bolstering the Melian perspective was the admitted fact that the Athenians had no real interest in the Melian people or their small island. The only issue in question was the existence of a Melos that was not under the rule of the Athenians.

The Athenians, being overwhelmingly more powerful militarily, approached the problem of a peaceful independent Melos from an entirely different context, but one which seemed valid from their perspective. Within the concept of natural law embraced by the Athenians, the existence of military power required the use of that power. Any failure to do what came "naturally" to a military power would signal to the rest of the ancient world that there was something wrong with the Athenians and their ability to maintain their empire.

Things would have been different if the Melians had been a major military power equal to the Athenians, since then the Athenians could have treated them with the respect of equals and left them alone. The Athenians believed they were obliged to attack the far weaker Melians since a failure to do so would encourage the other conquered peoples in their empire to question their ability to maintain control. The Athenians viewed their attack on the militarily insignificant Melians not as a desire to conquer Melos, but rather as a natural function of defending the rest of their empire. To not attack would have been a violation of their concept of natural law. In essence, from the Athenian perspective natural law required them to mount an attack the Melians even though they had no interest in the island or its people, and would much rather have spent their efforts on more profitable pursuits.

After failing to find any convergence in their very different perspectives on natural law, the Melians refused to surrender their freedom and the Athenians laid siege to their island. In the end the Athenians triumphed, and as punishment for resisting the Athenian perspective on natural law, the Athenian Generals put every male Melian citizen to death and carted off all the women and children as slaves.

Consider that outside of possibly ant and termite colonies, civilization is an entirely alien concept in the natural world. Only within the mind of man does the concept of the social contract exist. Of all the species on earth, only mankind has attempted to leverage the foundation of the social contract into the massive wholly artificial artifact of modern civilization.

In the prehistoric world, the operative laws of nature were reduced down to two main categories - physical and behavioral. The physical laws are the unavoidable aspects of the physical world such as what we commonly refer to as the laws of physics. Science is our attempt to define these laws, but they are enforced by reality regardless of our ability and/or willingness to understand and accept them.

The law of the jungle is the only truly natural behavioral law, and it defines the basic default form of interaction for all species. No part of what humans call ethics exist within the behavioral laws of nature. Not even the principle of reciprocity (the "golden rule") is sufficiently consistent, reliable, and pervasive in the natural world to be considered a behavioral law. Mutual dependency is not the same as the principle of mutual respect. Those minority of species that practice some form of reciprocity or cooperation with other members of their species only do so imperfectly and revert back to the basic default law of the jungle when under stress.

So if natural law requires an existing context and secular ethics aren't found in nature, where did we get the fundamental philosophical building blocks on which to build our civilization? The short answer is the same way we've gained most of our knowledge - simple trial and error, with acquired wisdom being largely the ability to remember what happened the last time.

Early civilizations were simply expanded versions of the basic group dynamics of the small hunter-gatherer band. They handled issues such as property rights in much the same way as children approach possession of toys on the playground - belligerence and might makes right. When that didn't work they fell back on appealing to a higher authority. The ancients imagined whole panoplies of gods who served as higher authorities to restrain some of the abuses of the powerful and take the place of parental referees on the playground.

While the ancients may have played with the advanced ideas that eventually became modern ethics, they lived in a world very much dominated by the default natural law of the jungle. Property ownership tended to be far more a function of the ability to defend that possession with physical force than any abstract concepts like intellectual property rights. Those with power largely controlled the lives of those without.

Even after establishing the concept of civilization, humanity insisted on trying every wrong way to go about it before finally ending up with the "enlightened" understanding we take so much for granted today. Far from the universal truth imagined by the ancient Greeks and their natural law, our modern recognition of the value of mutual respect for each other's lives and property is the result of looking back over thousands of years of trial and error, and trying to learn something from all those hard lessons.

Only after the early industrial revolution set in motion the ascendancy of the individual through providing the means by which an individual could effectively defend his life and productivity from exploitation, was it possible to implement modern secular ethics in the real world. Without the evolution of effective self-defense in the form of the personal firearm, the "universal" truths suggested by the ancient Greeks would have remained nothing more than the thought experiments and mind games of philosophers.

I submit that the abstract principles we today refer to as secular ethics are the result of what trial and error has shown to work best, and are more a recognition of the flaws in human nature than the pure abstraction of ultimate truth we would like them to be. As the sole dominate intelligent species within our limited store of knowledge, we tend to adopt a very human-centric world view. From that perspective, our concepts of ethics take on the appearance of ultimate truths that transcend the human condition. But in our desire to believe we are the pinnacle of evolutionary development, we fail to consider just how much of our concepts of ethics are simply hard learned accommodations of human nature. If human nature was free of contradictions and self-destructive faults, our concepts of ethics would have evolved far differently.

The liberty and freedom we enjoy today are the result of the empowered individual's ability to reject false claims of higher authority, and to recognize and act on his own enlightened self interest. Concepts like the natural law postulated by the ancient Greeks may have appeared useful when fighting the false claims of higher authority by the British Crown, but today such ideas threaten the basis of our free society by attempting to offer a false higher authority that appears superior to the principles of secular ethics.

The secular ethics that define the rules of our modern world are the entirely artificial means by which we hold the default natural law of the jungle at bay. These artificial principles and the civilization they define can only function as long as the participants appreciate their real purpose and willingly abide by them. Civilization breaks down when people forget that the core purpose of the social contract is to displace the default natural law of the jungle and constrain the contrary aspects of human nature.

The truths that were so self-evident to the founding fathers of America were only obvious to them within the context of their world view. If we allow that context to be lost or destroyed, the truths we fail to properly value today may never appear self-evident again.

Source: http://www.kortexplores.com/node/104

The Rule of Law Has Been Lost

2010-12-26T21:51:00.000-08:00

by Paul Craig Roberts

What is the greatest human achievement? Many would answer in terms of some architectural or engineering feat: The Great Pyramids, skyscrapers, a bridge span, or sending men to the moon. Others might say the subduing of some deadly disease or Einstein's theory of relativity.

The greatest human achievement is the subordination of government to law. This was an English achievement that required eight centuries of struggle, beginning in the ninth century when King Alfred the Great codified the common law, moving forward with the Magna Carta in the thirteenth century and culminating with the Glorious Revolution in the late seventeenth century.

The success of this long struggle made law a shield of the people. As an English colony, America inherited this unique achievement that made English-speaking peoples the most free in the world.

In the first decade of the twenty-first century, this achievement was lost in the United States and, perhaps, in England as well.

As Lawrence Stratton and I show in our book, "The Tyranny of Good Intentions" (2000), the protective features of law in the U.S. were eroded in the twentieth century by prosecutorial abuse and by setting aside law in order to better pursue criminals. By the time of our second edition (2008), law as a shield of the people no longer existed. Respect for the Constitution and rule of law had given way to executive branch claims that during time of war government is not constrained by law or Constitution.

Government lawyers told President Bush that he did not have to obey the Foreign Intelligence Surveillance Act, which prohibits the government from spying on citizens without a warrant, thus destroying the right to privacy. The U.S. Department of Justice ruled that the President did not have to obey U.S. law prohibiting torture or the Geneva Conventions. Habeas corpus protection, a Constitutional right, was stripped from U.S. citizens. Medieval dungeons, torture, and the windowless cells of Stalin's Lubyanka Prison reappeared under American government auspices.

The American people's elected representatives in Congress endorsed the executive branch's overthrow of the Constitution and the Bill of Rights. Law schools and bar associations were essentially silent in the face of this overthrow of mankind's greatest achievement. Some parts of the federal judiciary voted with the executive branch; other parts made a feeble resistance. Today in the name of "the war on terror," the executive branch does whatever it wants. There is no accountability.

The First Amendment has been abridged and may soon be criminalized. Protests against, and criticisms of, the U.S. government's illegal invasions of Muslim countries and war crimes against civilian populations have been construed by executive branch officials as "giving aid and comfort to the enemy." As American citizens have been imprisoned for giving aid to Muslim charities that the executive branch has decreed, without proof in a court of law, to be under the control of "terrorists," any form of opposition to the government's wars and criminal actions can also be construed as aiding terrorists and be cause for arrest and indefinite detention.

One Obama appointee, Harvard law professor Cass Sunstein, advocates that the U.S. government create a cadre of covert agents to infiltrate anti-war groups and groups opposed to U.S. government policies in order to provoke them into actions or statements for which they can be discredited and even arrested.

Sunstein defines those who criticize the government's increasingly lawless behavior as "extremists," which, to the general public, sounds much like "terrorists." In essence, Sunstein wants to generalize the F.B.I.'s practice of infiltrating dissidents and organizing them around a "terrorist plot" in order to arrest them.

That this proposal comes from a Harvard Law School professor demonstrates the collapse of respect for law among American law professors themselves, ranging from John Yoo at Berkeley, the advocate of torture, to Sunstein at Harvard, a totalitarian who advocates war on the First Amendment.

The U.S. Department of State has taken up Sunstein's idea. Last month Eva Golinger reported in the Swiss newspaper, Zeit-Fragen, that the State Department plans to organize youth in "Twitter Revolutions" to destabilize countries and bring about regime change in order to achieve more American puppet states, such as the ones in Egypt, Jordan, Japan, South Korea, Taiwan, Canada, Mexico, Columbia, Ukraine, Georgia, the Baltic states, Britain and Western and Eastern Europe.

The First Amendment is being closed down. Its place is being taken by propaganda in behalf of whatever government does. As Stratton and I wrote in the second edition of our book documenting the destruction of law in the United States:

"Never in its history have the American people faced such danger to their constitutional protections as they face today from those in the government who hold the reins of power and from elements of the legal profession and the federal judiciary that support 'energy in the executive.' An assertive executive backed by an aggressive U.S. Department of Justice (sic) and unobstructed by a supine Congress and an intimidated corporate media has demonstrated an ability to ignore statutory law and public opinion. The precedents that have been set during the opening years of the twenty-first century bode ill for the future of American liberty."

Similar assaults on the rule of law can be observed in England. However, the British have not completely given up on government accountability. The Chilcot Inquiry is looking into how Britain was deceived into participating in the illegal U.S. invasion of Iraq. President Obama, of course, has blocked any inquiry into how the U.S. was deceived into attacking Iraq in violation of law.

Much damning information has come out about Blair's deception of the British government and people. Sir David Manning, foreign policy advisor to Blair, told the Chilcot Inquiry that Blair had promised Bush support for the invasion almost a year in advance. Blair had told his country that it was a last minute call based on proof of Iraq's possession of weapons of mass destruction.

Sir William Patey told the inquiry that President Bush began talking about invading Iraq six or seven months prior to September 11, 2001. A devastating official memo has come to light from Lord Goldsmith, Prime Minister Blair's top law official, advising Blair that an invasion of Iraq would be in breach of international law.

Now a secret and personal letter to Prime Minister Blair from his Foreign Secretary, Jack Straw, has surfaced. In the letter, the Foreign Secretary warned the Prime Minister that his case for military invasion of Iraq was of dubious legality and was likely as false as the argument that removing Saddam Hussein would bring Iraqis a better life.

Blair himself must now testify. He has the reputation, whether deserved or not, as one of the slickest liars in the world. But some accountability seems to be heading his way. The Sunday Times (London) reported on Jan. 17 that the latest poll indicates that 52 percent of the British people believe that Blair deliberately misled his country in order to take Britain to war for the Americans. About one quarter of the British people think Blair should be put on trial as a war criminal.

Unlike the U.S., where government takes care to keep itself unaccountable to law, Britain is a member of the International Criminal Court, so Blair does stand some risk of being held accountable for the war crimes of President George W. Bush's regime and the U.S. Congress.

In contrast, insouciant Americans are content for their government to behave illegally. A majority supports torture despite its illegality, and a McClatchy-Ipsos poll found that 51 percent of Americans agree that "it is necessary to give up some civil liberties in order to make the country safe from terrorism."

As our Founding Fathers warned, fools who give up liberty for security will have neither.

Source:

http://www.globalresearch.ca/index.php?context=va&aid=17161

Prices and Rights

2010-12-05T19:05:00.000-08:00

Again the prices of consumer products are up again. There are no justifications. Consumers got shocked and surprised. There will be a domino factor. The rise of prices of other products will hampered the consumers further.

What our rights as the consumers to stop the price hiking? Do we just accepted it or whether there are any provisions under the existing legislations to protect us as the consumers?

Interestingly until this point, the consumer associations kept mum about this issue. Sometimes I don't understand these pressure groups' role.

They supposed pressed the authority not to increase the prices of necessary goods but always keep away.

Again I need pay more for my teh tarik but who cares???

Encountering Islamic Law

2010-11-03T00:30:00.000-07:00

By John Strawson, john.strawson@uel.ac.uk

"I am here because I want Egypt to be governed by Islamic Law"
"We need no lawyer God is our defence"
"There is only one Court case and that's before God"
"You are implementing Western Law on us" [Islamic militants on trial in a Cairo court quoted by Robert Fisk, The Independent, London, 28 June 1993.]

The Western encounter with Islamic law has reached a critical moment as the contours of a new world order emerge. Islamist political movements, within the Islamic world and the West, insist that we consider the role of the West in world order. This paper explores aspects of this strident encounter through a scanning of representations of Islamic law in selected Western literature and some Islamist responses. It argues that orientalism is the dominant trend within the literature and has constructed strong and enduring images. The consequences of these representations are two-fold; first that Islamic law is constructed as backward; and second that Western legal systems are represented as superior. These constructions are connected to the power relationship between the West and the Islamic world. These Western representations find a response within some Islamist scholarship which tends to attempt a reversal of the process altogether, with Islamic law becoming the superior system and the Western legal systems seen as decadent. However, these mutually exclusive representations are not symmetrical and therefore equally powerful as they are dependent upon an inequality of power. The purpose of this discussion is to make a contribution to clearing the way for a non-Eurocentric reconstruction of legal theory.

Much of the preparation for this paper was undertaken in Cairo, Egypt during the first semester of 1993. My research took place against the background of a turbulent political battle between the government and Islamist forces during which scores of people were killed, thousands were detained and an attempted assassination was made on the Minister of Information, a neighbour in Heliopolis. These events have added edge to the academic endeavour. The paper focuses on Egypt, and takes the form of a work in progress report of a research project which aims at situating the representation of Islamic law within wider Western scholarship. Islamic law may have played at the margins of Western legal theory yet the Western encounter with it reveals that colonialism is the ever present absence at its centre. The starting point of my work was Said's Orientalism,[Edward Said, Orientalism, Harmmondsworth: Penguin Books, 1978.] which throws into relief the Eurocentric character of much of modernism and indeed postmodernism.

Law and Orientalism
This paper argues that, despite its changing language, the Anglo-American critiques of Islamic law remain within the orientalist problematique. Islamic law has been represented within Anglo-American scholarship as an essentially defective legal system. The terrain of the critique has changed from the defence of colonial rule during the age of imperialism to contemporary claims about human rights, democracy and pluralism. The problem with this critique is that it replicates the power relationship between Europe (and the United States) and the Islamic world. The argument that Islamic law is defective nourishes the perception that European law is complete. As a consequence, a genuine engagement with Islamic law becomes problematic as every encounter is drawn onto the terrain of the orientalist narrative. A critique which is based on superiority and political power, rather than on scientific inquiry, must be flawed. Given the importance of the Islamic world in general, and the Middle East in particular, to international peace, this flawed critique merely adds one more obstacle to meaningful discourse and debate. The critique then becomes entangled with Islamist discourses, through which mirror images of European and western law emerge.

In my view, the search for a legal system which will enhance human rights and dignity is a universal search in which no one culture has a privileged starting point. The existence of conceptions of human rights, equality and non-discrimination within legal cultures is dependent on our reading of their narratives. In this process of reading, Western power has the ability to command attention, through its influence in global intellectual life and communications. This power to command attention, should not obscure the essentially constructivist nature of Western texts which assert Western superiority. Quite apart from enframing non-Western legal systems within the orientalist gaze, the narratives of the West are themselves imprisoned within a narrow provincialism masquerading as universalism. As Islamic law clamours for attention considerations of theory and politics justify a review of the contending narratives. Globalism offers a chance to challenge the constructions of the colonial past.

Islamist movements are contenders for power in most Arab countries. Despite differences in political programmes and strategy, the unifying demand of these movements is the implementation of Shari'a or Islamic law. Within the West, Islam has been painted in lurid colours for most of its thirteen hundred years of existence. In Western modern popular culture Islam is presented as a particularly violent and cruel religion.[ For a contemporary discussion of the relationship between Islam and the West, see Akbar S. Ahmed, Postmodernism and Islam, London: Routledge, 1992.] The adjective, fanatical, is frequently used to describe it. This is the culmination of a Western cultural relationship with Islam, which at least since the Crusades, has seen it as the 'religion of the Sword.' Islamic law is presented within Western popular culture, as the repressive element of this cruel religion. Undoubtedly in the popular mind Islamic law is linked to two images: the application of the punishments for certain crimes (huddud) [ Islamic law has three categories of crime, huddud, jinayat and ta'zir. The first comprise a series of offences, which carry a strict penalty which must be applied and is therefore not subject to any discretion. There are six such offences, sariqa (theft), haraba (rebellion or highway robbery), zina (fornication), qadh f (unproven accusations of fornication), sukr (intoxication), and ridda (apostasy). The fixed penalties for these offences which include public stonings, whipping, amputations and executions receive a great deal of public attention. The other categories deal with murder and bodily harm (jinayat) and discretionary offences (ta'zir).] including the amputations of arms and legs and public stonings; and the oppression of women. Western academic accounts of Islamic law, while not so lurid, tend to construct a view of Islamic law as aberrant and backward if sometimes, exotic.

There are good reasons for analysing the Anglo-American construction of Islamic law in the context of Egypt. [ For analysis of the roots of the current legal system in Egypt see, Enid Hill, Mahkama! - Studies in the Egyptian Legal System, Courts and Crimes, Law and Society, London: Ithaca Press, 1979 and Farhat J. Ziadeh, Lawyers, The Rule of law and Liberalism in Modern Egypt, Standford: Hoover Institution, 1968.] Egypt is not only the largest Arab country, but it is also a centre of Islamic jurisprudence as the home of the Al-Azhar University. Egypt has also been the soil which has nurtured modern Islamist politics with the foundation of the Muslim Brotherhood in 1928. Egypt's relations with the Western imperial powers is a long and complicated one. The nineteenth century began with the Napoleonic occupation and ended with the British Protectorate. Despite its formal position as part of the Ottoman Empire, the country saw the establishment of large Western foreign communities throughout the nineteenth century. These communities (or colonies) were the bridgehead of Western influence which closely guarded their commercial and national interests. British influence, which became paramount after 1882, remained pre-eminent until the 23 July Revolution of 1952 which resulted in the coming to power of Gamal Abdul Naser. This historical context continues to influence the encounter between the post-Cold War West and Islamist movements.

The representation of Islamic law both in popular culture and academic literature in English is redolent with colonial idioms, rooted in the orientalist project, and in particular is reliant on the theory of oriental despotism. I am indebted to the work of Edward Said in approaching the question of orientalism which he has explored in Orientalism (1978) [Edward Said, Orientalism, supra n.3.] and more recently in Culture and Imperialism (1993).[ Edward Said, Culture and Imperialism, London: Chatto & Windus,1993.] The former book has had a profound impact upon both cultural studies and most disciplines connected to area studies of the Middle East, North Africa and South Asia. For Said:

"The Orient is an integral part of the European material civilization and culture. Orientalism expresses and represents that part culturally and even ideologically as a mode of discourse with supporting institutions, vocabulary, scholarship, imagery, doctrines even colonial bureaucracies and colonial styles." [Edward Said, Orientalism, 2.]

I have taken elements of this methodology which were developed largely in relation to literature and applied them to the construction of Islamic law in English texts. [Said's work has provoked much controversy for a summary of the debate see: John M. MacKenzie, Orientalism, History, Theory and the Arts, Manchester and New York: Manchester University Press, 1995, 1-19; and Bill Schwarz, "Conguerors of truth: refelctions on postcolonial theory," in Bill Schwarz (ed.) The Expansion of England, London: Routledge, 1996, 9 - 31.] I argue that secreted within the works of scholars and colonial administrators a legal orientalism emerges which sustains Said's thesis that 'European culture gained strength and identity by setting itself off against the orient as a sort of surrogate and even underground self'. [Edward Said, Orientalism, 3.] In the field of law, the texts nourish what Said calls a 'sovereign Western consciousness'. The purpose in this exploration is the attempt to reflect on the engagement between Western and Islamic legal systems, as revealed through textual constructions, while keeping the texts within the purview of historical developments and contemporary political dynamics. In proposing this course I am aware that I could be treading an uncomfortable theoretical path between apparent textual deconstruction and apparent critical realism. This unsatisfactory situation arises in part from Said's incomplete reading of Foucault which forms the basis of his methodology in Orientalism. As Young has observed:

"Foucault had a lot to say about power, but he was curiously circumspect about the ways in which it operated in the arenas of race and colonialism. His virtual silence on these issues is striking. In fact Foucault's work appears to be so scrupulously Eurocentric that you begin to wonder whether there isn't a deliberate strategy involved." [ Robert J. C. Young, 'Foucault on Race and Colonialism,' New Formations, No. 25 (1995), 57 - 65, at 57.]

As Young points out it is a paradox that Foucault's work has become the basis for postcolonial analysis and for Said's pioneering work. [Edward Said says "I have found it useful here to employ Michel Foucault's notion of discourse, as described by him in The Archaeology of Knowledge and in Discipline and Punish, to identify Orientalism." See: Said, Orientalism, 3.] This paradox, together with the problematique associated with the textual deconstruction of historical and cultural narratives, assigns us a theoretical task. On the latter point, Douzinas and Warrington, following Derrida, are helpful:

"Taking the text (not necessarily merely the mean Writ-ten of particular forms, but of course including other texts which provide necessary contexts such as the historical and the economic etc., the fact that texts necessarily consist of the combination and reintegration of reiterated fragments) is frequently the way analysis must start, if only because there is nothing else." [ Costas Douzinas & Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics and the Law, New York: Harvester Wheatsheaf, 1994, 243-244.]

This is a good starting point for the analysis of the Western texts, but I want to reserve my position on its applicability to Islamic texts.

In the West, where there is a rising crescendo of rhetoric which attacks Islam and the Arab world, 'Islamic fundamentalism' has become in some circles a replacement for the threat of communism. [ See: John L. Esposito, The Islamic Threat: Myth or Reality?, New York and Oxford: Oxford University Press, 1992.] I will not be using the term 'fundamentalist' which is in origin a Western appellation for Protestant Christian movements in North America and seems particularly inappropriate in coming to grips with Islamic movements in the Middle East. I will be using the term, Islamist to refer to radical Islamic movements. [ For an exploration of these issues, see Armstrong, Badawi and Magonet, 'Jews, Christians and Muslims living together in a pluralist Western European Society,' Jewish Quarterly No 148 (Winter 1992-3) 35. The term fundamentalist has an implication of a return to a particular historical foundational text or moment, whereas the movements I am talking about are product of contemporary circumstances with programmes which arguably are in some senses modernist, see: Youssef M. Choueiri, Islamic Fundamentalism, London: Printer Publishers, 1990.]

Law plays a critical role within Islamist movements as a matter of theoretical concern and also most importantly perhaps, as the leading programmatic demand, the implementation of shari'a, a demand which unites often conflicting Islamist organisations. As Chibli Mallat has observed, "the concern of the Islamist advocates has primarily taken a legal form." [ Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as Sadr, Najaf and the Shi'ite International, Cambridge: Cambridge University Press, 1993, 1. This work is an important contribution to Islamic jurisprudence, although a detailed consideration of it is outside the scope of this paper.] Indeed for Mallat, Islamist politics has been determined by the theoretical output of the Najaf law schools of southern Iraq, which have been the international Shi'a centre of Islamic renewal. It was in Najaf that under the inspirational leadership of Muhammad Baqer as Sadr that the theoretical foundation for the Iranian Islamic movment was created in the 1960's and 1970's. The impact of the subsequent Islamic Revolution in Iran on world politics has created a major debate on the role of Islam in world order. To some observers Iran and Islamist politics are inextricably linked. Mallat argues that 'at the heart of the renewed interest in Islamic thought world-wide, is without doubt the success and durability of the Islamic Revolution in Iran'. [ Chibli Mallat, The Renewal of Islamic Law: Muhammad Baqer as Sadr, Najaf and the Shi'ite International, Cambridge: Cambridge University Press, 1993, 5.] This is true for scholars and other observers in the West, but the Iranian Revolution has had a more contradictory impact on the Islamic world. It is important to take into account the fact that Islamist movements are far more pluralist and diffuse. In addition rivalries between them mean that Islamist movements are rarely united, let alone a conspiratorial force. Mallat's proposition is that without the Iranian revolution there would be no significant Islamic movement today and that without the Najaf Law Schools there would have been no Iranian Revolution. Without underestimating the influence of the Islamic revolution, its role has had some contradictory aspects. Mallat is correct to point out the pivotal role which law plays in the current Islamic revival. The Iran revolution marks an important moment in the development of the current Islamist movement, although it can be argued that the Iranian Revolution has been an impediment to the development of Islamist movements in the Arab world. [ There are two exceptions to this which are Iraq and Bahrain both of which have Shi'a majority populations although are governed by Sunni elites.] There are several inter-linked reasons behind this argument. First, Iran is a Shi'ite country, whereas most Arab countries, with the exception of Iraq and the sui generis position of Lebanon, are overwhelmingly Sunni. Second, Iran, as a Persian power, is seen as outside the framework of Arab politics. Its attempts at spreading the "Islamic Revolution" can therefore be presented as an interference in the affairs of the Arab world (a point that many Arab leaders, including President Hosni Mubarak, never tire of lecturing the Islamists of their own countries). Third, the long Iraq-Iran war created a great deal of Arab solidarity with Iraq against Iran. Fourth, and perhaps the most important issue, relating to the character of the Shi'ite/Sunni [ Islam divided into two main trends over the succession and role of Ali (656 CE), the majority the Sunni (derived from al-sunna [the tradition]) first accepted the caliphate of Ali but then rejected him and his successors. The murder of Husayn at the Battle of Karbala (682 CE) sealed this division, the term Shi'a derives from shi'at Ali, the partisans of Ali. Today the vast majority of Muslims are of the sunni trend with about 10% adhering to the Shi'a, mainly in Iran, Iraq, Lebanon and Pakistan, although there are communities throughout the Islamic world.] split, is the fact that Iranian Islamism is a clerical movement, whereas most Arab Islamist movements are largely anti-clerical. [ This process may well be in the process of changing, as one of the effects of the current policy of the Egyptian government has been the promotion of the official clergy through the mass media as means of gaining Islamic credibility in the face of the Islamist threat. This has a contradictory effect of promoting the role of the clergy in society. What remains true is that the focus of much hostility amongst the Islamist groups is towards the official clergy who, as a whole are held to be corrupt, and this is proved by their collaboration with the secular government.] These factors could be said to combine to retard the development of Islamism within the Arab world and this can be seen particularly in Egypt.

Shari'a
Islamic law (shari'a) derives from the Qur'an and from the sunna. The Qur'an is regarded by Muslims as the divine revelation from God, through the Angel Gabriel, to his last prophet Mohammed (c. 570 - 632 CE). [Non-christians feel more comfortable with these terms.] Muslims believe that the Qur'an is a sacred text which contains the basis for all aspects of life. The sunna comprises of the traditions of the Prophet and his companions that elaborate the jurisprudence contained within the Qur'an. Islamic law was developed from the systematic application of the principles of the Qur'an and the sunna by leaders of the Islamic communities which were established in the first two centuries after the hijra [622 CE]. In these two hundred years, Islamic jurisprudence (usul al-fiqh) developed with a particular juristic system of legal norms (furu' al-fiqh) , which permitted a living legal system covering all areas of social regulation, in Western categories, from criminal law to family law, from constitutional law to public international law. From the Islamic standpoint, Islamic law is a system of regulation that stems from human political authority but is itself created by God. In a sense, duties to other human beings, whether your equal or political superior, constitute a duty to God. Law is thus perceived as constituting an integrated part of social organisation and is not seen a separate branch of human activity. Law, both as jurisprudence and as a normative system is an articulation and an expression of God's will. As a consequence, within the Islamic outlook, it is difficult to conceive of a secular state or a secular legal system. There is a central debate within Islamic jurisprudence on the character of the conditions under which shari'a can be introduced. There are those who argue that this is only possible within the context of a thoroughly Islamic society, such as the Prophet established in Medina in the seventh century (CE). Others regard such a proposition as idealised and put forward a twentieth century Islamic state as a model.

The development of both usul al-fiqh and furu' al-fiqh took place through the deliberations of the leadership of the Islamic community (al-ulama) , who would issue texts and opinions (fatwas) as well as review the day to day activity of judges and administrators. It is indeed through the activity of the ulama that ijma or consensus is achieved which is the necessary condition for the formation of legal principles. Islamic legal discourses are thus found within the texts and certainly no positivist legal code. Thus the development of Islamic law itself has been subject to historical processes which have given rise to distinct discourses which have in turn produced different schools. Broadly speaking there are significant differences between the sunni and shi'ite legal traditions with special currents of opinion within each. These essentially turn on the role that the clergy play in society as a whole and in particularly the elaboration of law. Amongst the majority sunni branch there are four well acknowledged schools; the Hanafi school of Baghdad (named after abu Hanifa [700 - 767 CE]), the Malikite school of Medina (named after Malik ibn Anas [710 - 795]), the Shafi'ite school (named after Mohammed al-Shafi'i [767 - 820 CE]) and the Hanbalite school (named after Ahmad ibn Hanbal [780 - 855 CE]). Amongst the Shi'ites, there are three main schools, the largest of which is the Imamiya; the other two are the Zaydiya and the Isma'ilya Shi'a. This diversity of traditions and interpretations should be born in mind when thinking about the nature of Islamic law.

However, Western students of Islamic law should be wary of merely looking at the sociological or historical classifications of schools of juristic thought. It is necessary to take in account that its religious character endows it with legitimacy. For a Muslim, shari'a is the application of divine will and as Abdullahi Ahmed An-Na'im reminds us,

"To Muslims, Shari'a is the "whole Duty of mankind", moral and pastoral theology and ethics, high spiritual aspiration, and detailed ritualistic and formal observance; it encompasses all aspects of public and private law, hygiene, and even courtesy and good manners." [ Abdullahi Ahmed An-Na'im, Towards an Islamic Reformation, Cairo: The American University in Cairo Press, 1992, 11.]

Thus one of the special characteristics of Islamic law is that it constitutes an existing system of sacred law in the contemporary world. It is in this that much juristic work needs to be done in order to understand both the roles of shari'a within Islamic societies and in its contribution to the wider international legal community. The Islamists understanding of the role of law constitutes a serious challenge to much of what we might call the Western jurisprudential lineage.

Law in the orientalist gaze
Within the European world, Islamic law has been studied as integral to the orientalist project. Orientalism, as an area of academic interest grew alongside colonialism and to some extent served it by providing both an apparent store of positive knowledge and a series of ideological explanations of the culture and societies of the occupied lands. It is only relatively recently that (Western) jurists have taken a specific interest in Islamic law. Within the orientalist lineage it has been largely seen as a branch of history, administration or general Islamic studies. Indeed the leading text, which has had so much influence on current thinking, Introduction to Islamic Law by Joseph Schacht [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964.] is a case in point. The interesting aspect of this work and of most others in this field, is the methodological context in which Islamic Law is presented, (or more accurately constructed) and then defined, (or confined). In setting the scene, Schacht tells us;

"[t]he Arabs were and are bound by traditions and precedent. Whatever was customary was right and proper; whatever the forefathers had done deserved to be imitated. This was the golden rule for Arabs whose existence on a narrow margin in an unpropitious environment did not leave much room for experiments and innovations which might upset the precarious balance of their lives." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]

It should be noted that this passage is not written only in the past tense. What he is saying of Arab society at the time of the Prophet is also true of Arab society in the age of nuclear weapons. This underlines the fact that orientalism is a tool of social explanation which has a current purpose in structuring the relationships between the West and the East. It is also noticeable how Schacht writes of traditions, customs and precedents. These are presented as essentially Arab. Yet he is writing against the background of the United States of America, which possesses a legal system which in many areas is based on the common law, whose whole basis is precisely tradition, custom and precedent. Schacht, however, does not reflect on this paradox, quite to the contrary he regards reliance on precedent as being the hallmark of Arab society; "[i]n this idea of precedent or sunna the whole conservatism of the Arabs found expression." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]

Schacht builds the case for the sunna as the barrier to adaptation or modernisation, seeing it as the means for undermining anything new within Arab society; "The idea of sunna presented a formidable obstacle to every innovation, and in order to discredit anything it was, and still is, enough to call it an innovation." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]

Schacht, has to deal with the contradiction that Islam itself was a revolutionary intervention into Arab Society which destabilised the very conservatism of the Arab society which he has described. Given his views it is very difficult not only to understand the emergence of Islam in the Arabian peninsular, but its rapid expansion throughout the entire Arab world in the matter of decades. All that Schacht can bring himself to say is that, "Islam the greatest innovation that Arabia saw, had to overcome this obstacle, and a hard fight it was." [ Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 17.]

Without any explanation as to how it was overcome Schacht rationalises that "the old conservatism reasserted itself; what had shortly before been an innovation now became a thing to do, a thing hallowed by precedent and tradition a sunna." What Schacht omits to explain is how the new norms, the 'innovations' have come to be accepted. He sees rather ''this ancient Arab concept of sunna" becoming "one of the core concepts of Islamic law." In other words, he notes that Arab society adapts past culture forms of law-making to radically new conditions. This process is common in the legal history of many societies in the wake of revolutionary change. The English common law for example has been adapted from its feudal form to modern industrial society. The important contents of the legal system, its norms, have changed radically. This was also the case with Arab society in the seventh century. The Prophet Muhammad and his companions, in an effort to transform and enlighten their society (and the world), harnessed previous customs and practices to this task, whilst endowing them with new meanings. Schacht, however sees only Arab society in a one-sided way. A priori it is conservative. Despite the revolutionary upheaval caused by the coming of Islam, which overthrew the political elite and Arab society quickly reasserted its true nature by employing the method of the sunna. This Arab society is regarded as being essentially rooted in conservative and backward looking practices. Its legal system will therefore necessarily reflect this, acting as a form of regulation to both hold back the development of society and its adaptation to historical processes. In other words the nature of Arab Society and its legal system is to act as a barrier to the modern world. Arab society becomes a preserve of the exotic and the aberrant, a historical theme park. The orientalists also seek to narrow the preserve of Islamic law. Schacht makes it quite clear that he is using the concept of law "in the narrow meaning of the term:"

"Worship and ritual, and other purely religious duties, as well as constitutional, administrative and international law have been omitted, the first because they developed under different conditions and in close connection with dogma, the second on account of its essentially theoretical and fictitious character and the intimate connection of the relevant institutions with the history of the Islamic states rather than with the history of Islamic law." [Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford University Press, 1964, 112.]

This passage is noteworthy as constitutional, administrative and international law are regarded as being "theoretical and fictitious." These branches of law, even within western discourse, have their sceptics, and any student of the British constitution would be forgiven for thinking that it is essentially "theoretical and fictitious." Indeed it would be impossible to study it at all without grasping the "intimate connection of the relevant institutions of the [British] state." However, study of British constitutional law is quite widespread, as is administrative law and Western perceptions of international law. Schacht's arguments have the effect of de-legitimising the contribution of Islamic jurisprudence in these fields. It is interesting that he selects for exclusion those areas where Islamic law would define state power and regulate international relations. In discussing substantive law Schacht largely confines Islamic law to personal status and criminal law. In these areas the habits of a conservative, albeit exotic, society can be portrayed picturesquely, but without any threat to the legitimacy of the power of Europe. Thus in Said's terms a "strategic location" creates a sense of 'referential power.' Schacht achieves this by reducing of the scope of Islamic law through excluding the fundamental issue of power and authority. In concert with orientalists of the eighteenth and nineteenth centuries he commands the ultimate power to construct what Islamic law will be. [ For a development of this view see: John Strawson, Islamic Law and English Texts, Law and Critique, Vol. VI No 1 (1995), 21-38.]

In the field of public international law, there is a widespread belief that it is entirely of Western pedigree. Rebecca Wallace, claims that the "international system is of recent origin," and that it "stems from the rise of the secular sovereign state in Western Europe." [ Rebecca M M Wallace, International Law, London: Sweet & Maxwell, 1992, 4. Similar views are found in most texts on Public International Law.] Similar views are found in most texts on Public International law. This is so commonly held that even Butros Butros Ghali, Secretary General of the United Nations (and former Professor of Public International Law at Cairo University) can write about the "great project of international law that began with Grotius over three centuries ago." [Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).] Yet in the eighth century of the Common Era, Islamic jurists had produced al-siyar, juristic texts which dealt with issues which Europeans, at a later date, came to call international law. Al-Shaybani's siyar, [ See: Majid Khadduri, The Islamic Law of Nations, Shaybani's Siyar, Baltimore: The John Hopkins Press, 1966.] for example, was written by the end of the eighth century (CE), some eight hundred years before Grotius set pen to paper. Al-Shaybani's text contains detailed codes on the Law of War, the law of occupation, the law of treaties and diplomacy and the rights of foreigners. In passing it has much of interest to those concerned with the legal protection of the environment. Many of Al-Shaybani's propositions on the Law of War, would not seem unfamiliar to the modern student of international law. However, Schacht's relegation of Islamic international law to "fiction," is reflected in the main texts on Public International Law in the West. Western power successfully projected the image that, along with the motor car, it too invented international law.

Yet, the well known article 38 of the Statute of the International Court of Justice which states that the "law of civilised nations" is a source of international law, introduces some ambiguity to this claim. Discarding the colonial phraseology of this article, and reading it as "major legal systems of the world," Islamic Law has as much claim as any other system to be included. Indeed this is underlined by the decision of the International Law Association which has established a committee to discuss the role of Islamic Law within International Law on the grounds of the "need for understanding and dialogue between different intellectual and religious traditions which bear on international law and relations." [ See: International Law Association, Report of the Sixty-Fifth Conference [1992],Cairo: El-Fania, 1993, 4.]

However, Schacht was not alone in regarding Islamic international law as in some way defective. Even Majid Khadduri, the translator of Al-Shaybani's Siyar can explain the conditions that have made possible "the integration of Muslim states into the modern community of nations." His argument [Khadduri, Islam and the Modern Law of Nations, 1956 American Journal of International Law Vol. 50, 353-372 at 358.] is indeed an account of the systematic subjugation of Islamic international law accompanying the political and military defeats of the Ottoman Empire. According to this conception Islamic law is not so much a source of international law, but a changed discourse which met Western criteria of the 'modern law of nations.' Schacht's perception of Islamic international law as a "fiction" rested on two hundred years of its exclusion by European powers. In the great historical wave of this western narrative, the idea of Islamic International law gains grudging acceptance only at the moment of the decline of the power which gave it meaning, the Ottoman Empire. Thus the centuries of al-siyar are enframed within the relatively new Western international law.

When orientalists turn their attention to constitutional law issues, albeit in a historical context, we can detect further subtle forms of the undermining of Islamic legitimacy. Coulson, in his History of Islamic Law, [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964.] insists on analysing the legal basis of Ummayyid and Abbasid states by reference to the constitutional contribution of the European Enlightenment. For example, of the Ummayyid state, (which ceased to exist in the Middle East and North Africa in 750 CE), he says it "was not based upon any firm separation of the executive and the judicial functions." [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964., 120.] Writing of the Abbasid dynasty which lasted until 1258 CE, we are told, "the shari'ah courts never attained that position of supreme judicial authority independent of political control, which would have provided the only sure foundation and real guarantee for the ideal of Civitas Dei." [Noel Coulson, History of Islamic Law, Edinburgh: Edinburgh University Press, 1964., 121.]

It is extraordinary that centuries before the European Enlightenment, let alone a thousand years before the American revolution, Coulson thinks it appropriate to apply rule of law doctrines, such as the separation of the powers and the independence of the judiciary, to his analysis of Islamic government. During the same period it would be quite inappropriate to analyse European legal systems from that standpoint. Both Coulson and Schacht were writing in the 1960's. Both were committed orientalists and genuine scholars attempting to bring Islamic law to the attention of Western intellectuals and students. They were also writing before a serious debate about the ideological nature of orientalism had begun. My argument is that the significance of their work is the way in which they represent Islamic law. The problem with seeing it as conservative, aberrant and to be kept out of power-defining relationships (constitutional and international Law) is that the whole is therefore represented as a defective legal system. This representation makes any genuine comparative discourse very difficult. From the beginning, in any comparison, Islamic law will not stand the test against fully-developed Western Law.

Mayer continues this methodology into the 1990's in her, Islam and Human Rights. [Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder Co.: Westview Press, 1991.] Mayer is aware of the debates about orientalism and understands the need to approach Islam in a sensitive manner. She understands that issues of Islamic law need to be studied in the context of Middle Eastern politics. Whereas scholars of Schacht and Coulson's generation could avoid these issues, Mayer knows that they must be addressed. She refers to Said's critique of orientalism at any early stage. However, she adopts the curious view that it should not be extended to law, "Said's idea of orientalism, is not a concept developed for application to the field of Law or for evaluating whether governments of nations are adhering to international legal norms." [Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder Co.: Westview Press, 1991, 10. Mayer has removed this sentance from the seond edition of her book, although she has not changed her views, as she argues, "Although Said is not a lawyer and did not analyse legal scholarship, people influenced by his arguments tend to expnd them to include legal scholarship, although Said did not assert that all critical examination of Islamic institutions is infected by Orientalist biases, his disciples seem inclined to draw this inference." See: Anne Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Boulder and San Francisco: Westview Press, 1995, 7.] Mayer, as we shall see, is so wedded to this positivist approach that she appears more concerned with Said's focus, literature, than with his methdology.

Legal Orientalism
In Orientalism, Said does not deal with law in particular. He does, however, in passing comment on the contribution of William Jones, "Jones' official work was the law, an occupation with symbolic significance for the history of orientalism". [ Said, Orientalism, 78. Said's point is rather understated as it was in fact though the work of Jones that the British orientalist tradition in law began. From the late eighteenth century onwards it was under his direction that the major translations of Islamic law texts took place, Hamilton's, Hedaya, London: T. Bensley, 1791, Jones's own Al-Sirajiyah, Calcutta: Joseph Cooper, 1792 and Baillie's Sara'i al-Islam (1792). It is through the presentation of these works to an English audience, at the time largely composed of colonial administrators, that the superior framework of English law is erected to analyse the worth of Islamic law.] Indeed, Said reviews many of the canons of Orientalism, most of which contain substantial contributions on law. The great classic work by Edward Lane, Manners and Customs of Modern Egyptians [ Lane's work was first published in 1836 and appeared virtually unchanged in various editions up until 1895. References in this paper are from this edition which has been reprinted by East-West Publications, London, 1978.], not only has chapters devoted to law and government, but refers to legal issues throughout the book. Lane was not alone and the major works produced on Egypt, including De Leon's, The Khedives's Egypt [ Edward De Leon, The Khedive's Egypt, London: Sampson Low, Marston, Searle & Rivington, 1877.], Milner's, England in Egypt [ Alfred Milner, England in Egypt, London: Edward Arnold, 1892.], and Cromer's, Modern Egypt [ The Earl of Cromer. Modern Egypt, London: MacMillan, 1911], all deal extensively with law, including Islamic law. Milner's approach to law is clear, in writing about the 'Native Courts' he says
"the Native Courts already administer a European system of law. If their personnel can be so improved as to justify the assertion, that not merely the law they administer, but the spirit by which they are animated, is up to the standard of European ideas of justice." [ Milner, (1892) 350.]

If the judges of the Native Courts are to be able to do their job, they need not just know the law but they need to be motivated by "European ideas of justice." This is a common theme in all the main works. European concepts of law and justice are the true standards. This is a recognition, at the official level, that the task of the colonial project is the 'Europeanization' of the population.

De Leon, for example, writing even before the British occupation, is impressed with some of the Khedive's reforms because his "native ministers" are men "imbued with the European culture." Milner, however, is concerned with the manner of the reception of European institutions and legal ideas. He thinks that it is "the besetting sin of Orientals, when attempting to copy European institutions, that they do so without a sufficient regard to the differences of conditions." [ Milner, (1892) 327.] This line of argument leads to one conclusion, that only Europeans can oversee the successful transmission of such ideas and institutions. Sir William Hayter, a British appointed Legal Advisor to the Egyptian government, underlines this attitude:
"If an Egyptian government can provide regular and peaceable administration for Egypt, so much the better; but, if not, it as certain as anything can be that some Power or group of Powers will be obliged to intervene to restore order. Bulgaria or Greece may be allowed a revolution or so without interference, but not Egypt." [ Sir William Hayter, Recent Constitutional Developments in Egypt, Cambridge: Cambridge University Press, 1924, 12.]

In a practical way, the legal branch in Egypt, as in India, was to provide a cadre training experience for politicians. It is noteworthy that six out of seven Prime Ministers of Egypt, in the ten year period from World War I to the early 1920's, had been judges in the Native Court of Appeal. [ There are many interesting aspects of the application of British colonial experience in India to the situation in Egypt. In some cases administrators, (e.g. Sir John Scott, the Legal Adviser) served in India before holding office in Egypt. The British experience of adapting Islamic law to colonial requirements began in India in the late 18th century and one can surmise that this had its impact on the administration of law in other territories.] This strong relationship between law and politics in the functioning of colonialism provides an important context in analysing orientalism. This also demonstrates that Mayer's strictures that Said's Orientalism excludes law and is mainly confined to 'anthropology and philosophy' would seem to be erroneous. Mayer is content to create a modernist model for the evaluation of Islamic Law. For Mayer all law can be divided into pre-modern and modern.

This has the appearance of a transcultural approach, as the characterization of legal systems is not strictly speaking located in culture but in time. Indeed she also speaks of European natural law as pre-modern. Islamic law is always pre-modern whereas European law, since the European Enlightenment, is merely European Law. This creates a hierarchy of legal systems in which European law can pass the modernist finishing post but Islamic law cannot. This adds to the view that Islamic law is incomplete and essentially defective. Indeed Mayer concludes her book with an explanation of her thesis that Islam contains a "culture based resistance to rights." This conclusion is rooted in the view of public international law, which we have seen before in the work of Schacht and others. "The principle of the supremacy of international law," Mayer writes, "is a given in the modern international order." [ Mayer (1991) 209]

For Mayer, Islamic law confronts the international legal order. It is not part of it, it is the 'other'. This raises a series of problems, not only for those concerned with a critique of orientalism, but for those concerned with the nature of international law. Public International Law is seen only in a positivist framework, with definite, undisputed, norms. Although Mayer and others insist that international law has sprung from a Western environment, as indicated earlier, the sources of international law are not necessarily Western. As a consequence there is no necessary opposition between Islamic law and international law. Indeed on the contrary, Islamic law is part of, a source of, public international law. By setting up her modernist model, Mayer effectively de-legitimises Islamic law and therefore, despite her awareness of the issues, sustains a methodology very much in the tradition of the scholars in the 1960's, who were themselves products of an orientalist lineage stemming from the eighteenth century.

Modernism
Islamic law is presented as incomplete and inadequate especially when compared to 'modern' European and, by extension, international law. The de-legitimising effect on Islamic law has its mirror image in the representation of European law as a complete, established and definite legal system, legitimate in all respects. This is what Said means by European culture gaining 'strength and identity by setting itself off against the Orient'. I have argued that with regard to international law, Mayer and others can be challenged from within its own jurisprudence. For European law as whole, it is necessary to consider carefully the implication that it is the legitimate system. Mayer is clear on the importance of the West in the creation of law:

"It was on these Western traditions of individualism, humanism, and rationalism and on legal principles protecting individual rights that twentieth-century international law of human rights ultimately rested." [ Mayer (1991) 44]

Like most other writers in the areas of international law and constitutional law, the break point is the European Enlightenment. This has been the basis for the development of modern European law. Mayer, takes to task many of the Middle Eastern regimes for not being based on democracy and pluralism. Her entire standpoint is 'western superiority'. The assumption that European law is a fully developed system is rather difficult to accept within the European world let alone the ex-colonial territories. This perception of the superiority of European law, as we have seen, is a common theme of administrators and scholars. In the nineteenth and early twentieth centuries the project was Europeanization. In the last decade of the twentieth century it is the promotion of human rights, democracy and pluralism. Defects within Islamic culture must be made good. My difficulty with this project is the character of the European experience. How precisely can Europeans claim this superiority, particularly in the fields of human rights, democracy and pluralism, when our entire societies have been founded on the systematic denial of these benefits to the population of the colonized world until well into the second half of this century?

The European systems of law have been used to imprison many who fought for these principles in the colonial world. The European age of the Enlightenment produced the American constitution that permitted slavery, and confined the vote to white male property-holders of the Christian religion. The western Human Rights movement even today is largely a male rights movement. European societies ( and here I include the United States) moved extremely slowly to extend the formal vote to women. Indeed France, the home of the Enlightenment, did not grant women the right to vote until after the Second World War.

In the West, the principles of democracy and pluralism appear to be a twentieth century phenomena. They were not the obvious 'civilised' systems of government for George Washington or William Gladstone. Indeed Europe for much of the twentieth century has been characterised by regimes which stood opposed to any conception of human rights, democracy or pluralism; German Nazism, Russian Stalinism, Iberian Fascism, and variants of these systems in Greece and Rumania are very much part of the European tradition. It is very significant that in the debate over the legitimacy of law under Nazi Germany, German law has found many a vigorous defender. One cannot but think this is the result of Germany being a European state and that the holocaust notwithstanding, it is its Europeaness that is important. Islamic law is oriental, and its orientalism is held against it.

The legal history of Egypt since the accession to the throne of Muhammad Ali in 1807 has been a struggle for and against the reception of European law. In part, this process was motivated by reformist and modernizing trends led by the Ottoman Porte, but its main imperative came from the commercial pressures of the growing European and American presence in the country. By the 1870's there were nearly eighty thousand foreigners living in Egypt, with about 60% of these living in the city of Alexandria. These 'colonies' were led by merchants who insisted on their right to resolve legal conflicts according their own legal system as applied by the consular courts under the capitulations. In the 1850's, Nubar Pasha proposed to change this situation so that the commercial interest would be brought within an Egyptian framework. The result of his work was the creation of Mixed Tribunals, which used French law and had a mixture of European and Egyptian judges. De Leon who was the American Consul at the time of the proposal considered the idea absurd. In 1856 in a cable to Washington he reported:

"Imagine a tribunal composed of several Moslems, two Christian Armenians, two Latin and two Greek Christians (every native Christian sect here bitterly hating each other) and add two Jewish Rabbis, and you would have the most striking illustration of the 'happy family' in the museums composed of the most uncongenial animals to be found." [ De Leon (1877) 302-3]

Having dismissed the proposal, he then explains that "I will never surrender those rights nor resign to irresponsible hands my high prerogative." [ De Leon (1877) 303] This reveals both the cultural and commercial values of the colonies. However, in the end, Nubar Pasha had his way and the Mixed Tribunals were established. [ The classic work on this subject is Jasper Yeats Brinton, The Mixed Courts of Egypt, New Haven: Yale University Press, 1968. A good survey of the work of these courts is contained in a more recent work, Mark Hoyle, Mixed Courts of Egypt, London: Graham & Trotman, 1991.] Fourteen foreign powers (including the USA) participated in the system. While undoubtedly the reception of French commercial law reflected a gain for European legal ideas, nevertheless, an astute Egyptian leadership had manoeuvred, in De Leon's words "to keep control in Egyptian hands." The attitude to Islamic law by the colonies was simply that so long as it did not interfere with trade it could be tolerated. De Leon notes that the majority of the population, 'the natives,' "are still subject to the old Egyptian judges and the old system which has the Koran as its basis." [ De Leon (1877), 312.]

Writing twenty years later, Milner refers to the "Old Koranic system, worked by the mehkemehs or courts of the Religious law, which are now mainly confined to dealing with the personal status of Mohammedans." [ Milner (1892), 324.] He is not impressed with this system, but comments, "The Religious Courts, full of abuses through they be, are yet hallowed ground upon which it has been thought unwise to suffer the foot of the Christian foreigner to intrude". [ Milner (1892), 325.]

These views are highly significant as they reveal the actual narrowing of the scope of Islamic Law within Egypt. In a sense Schacht's limitations of the scope of Islamic law reflect the realities of the colonial experience. Milner expresses this when he writes,

"Mehkemehs, or native Religious Courts. whose authority is now almost confined to the registration of land, and to matters affecting the personal status of Mohammedans, questions of marriage and inheritance being the most important." [ Milner (1892), 351.]

The colonial administration having removed the Egyptian state from its ability to decide its constitutional destiny, having been shorn of its own independent foreign policy and further ensuring that European law regulate all important commercial transactions, leaves 'native Religious' or Islamic Law with the rest. Necessarily the residual Islamic system is presented as defective.

Without supporting evidence, Milner informs his readers that these courts are "bywords for corruption" and proposes that the qadis [qadi (singular) means judge.] should be better paid and that they should "possess some knowledge of the general principles of law." The reader is to presume that 'general principles of law' means European law; it is so obvious to Milner that this content does not need to be stated.

Lane, in a much earlier account of these courts, does not dwell on their corruption, as much as the harsh punishments that they impose. In one of these he reports how a woman found guilty of apostasy is strangled to death and then thrown into the Nile. [ Lane (1895), 113.] He explains that in an earlier case this result was prevented by the intervention of the Europeans. Thus the representations of the activities of these courts are either of the corrupt or of the uncivilised. The implication is that similar practices do not take place within European systems of law and that European intervention assures the protection of humanitarian principles.

Lane's work is riveting as he observes Egypt through attempting to 'pass' as an Egyptian. He dresses as an Egyptian and lives in a typical area. He observes law along with other cultural forms, including superstitions, music, dancing, and games. His comments on law are thus combined with his collection of costumes and his famous engravings. This situating of law within the cultural sphere indicates the intensity of the contest between Europe and the Orient. As legal culture becomes an object of colonization, Islamic law has to be conquered. The inevitability of European victory impels Lane and others to record Islamic legal culture so that it can be placed alongside, the "serpent-charmers, and performers of legerdemain tricks," [ Lane (1895), ch. 20.] so that future generations will be able to visit it in a museum. In the meantime, the colonial administrators had to tackle the sensitive task of the conquest itself, which like the conquest of territory involved a series of manoeuvres.

The influence of European powers during the nineteenth century reshaped the scope of Islamic law by both narrowing its jurisdiction and through a process of modernizing the legal system and introducing European law. [ The history of this process is dealt with in a comprehensive manner in Elie Kedourie, Politics in the Middle East, Oxford: Oxford University Press, 1992.] In 1923, for example, Egypt adopted a constitution based on that of Belgium. In 1906 Iran had done exactly the same. Even within the Islamic world, by the time Kemal Attaturk came to power, the West had won the legal argument, Islamic law was backward and European law modern. The establishment of a secular republic in Turkey, and with it the abolition of the Caliphate, was a logical result of the pressure of the West on Islamic culture.

The pressures for modernization according to the European model is a theme of the period up until the 1952 Nasserite revolution. It is explored for example by Naguib Mahfouz in the Cairo Trilogy, when in the second volume [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992.] picnic food is turned into a metaphor for the choices before Egyptian society. At a picnic at the Pyramids, Kamal is offered by his sophisticated friends Husayn and Aida, ham sandwiches and beer. Kamal refuses to drink the beer or eat the ham, and is reproached by Aida for being a 'hanbali fundamentalist'. He continues with his refusal and keeps to his own diet. Husayn and Aida have a French background and symbolise the effect of the European penetration of Egyptian society. Kamal is more traditionalist and is shocked, but fascinated by the brother and sister - indeed he is in love with the sister. Kamal is curious that Aida and Husayn can offer the forbidden food given that their family keeps the outward appearances of Ramadan. Husayn replies,

"Isn't it strange that we know so little of our religion? What Papa and Mama know about it is hardly worth mentioning. Our nurse was Greek. Aida knows more about Christianity and its rituals than she does about Islam. Compared to you we can be considered pagans." [ Naguib Mahfouz, Palace of Desire, London: Doubleday, 1992 Vol. II at 193.]

This represents the dilemma for Egypt. It is not just the state which becomes influenced by European ways, but parts of society too. As a scene it also demonstrates the divisions that have resulted within Egyptian society. The 1952 revolution actually confirms this process of Europeanization, through the adaptation of Egypt to European socialism. The colonial powers of Britain and France are merely replaced by the USSR and Yugoslavia.

Islamist Reactions
It is in this context that the Islamist reaction must be seen. A critical consequence of the Anglo-American construction of Islamic law is the destruction of the legitimacy of Islamic power within Islamic society and within the wider world. Confined to personal status, for those who want it, Islamic law can be tolerated. In resolving the big issues of the exercise of power, both in the fields of politics and economics, Islamic principles are replaced with European ones. As a consequence the campaigns by Islamists for the implementation of shari'a appear radical as the aim is the creation of a new basis of power.

This paper is not arguing that Islamic law should be considered as the model for law, nor that the Islamist version is benign. I am advancing the case for an engagement between Western and Islamic law which means the West transcending its superior vantage point. This is, in my view, not merely culturally and theoretically desirable, but is also a prerequisite for the creation of stable relationships between the West and the Islamic world. Nothing more destabilizes this relationship than continued attempts to de-legitimize these societies, particularly at a time when they face the threats from the Islamists.

The Islamists base themselves on their analysis that views the regimes as corrupt and that in theological terms they constitute a state of jahiliyyah, literally reactionary corrupt regimes which resemble the authorities in pre-Islamic times. For the Islamist activist, however, modern jahiliyyah is considerably more serious as it necessarily includes the rejection of the message of Islam.

This is the mirror image of the exponents of the completeness of European law. Islamist movements in Egypt can be divided into two broad types. The first is the reformists, in particular the Muslim Brotherhood, technically illegal but maintaining public offices, making statements and politically active through its alliance with other legal political parties, most recently with the Socialist Labour Party, [the Shukri faction]. The Muslim Brotherhood and its supporters seek to persuade the Egyptian government to introduce shari'a. The second type consistst of the 'revolutionary' groups who think that reformist attempts are doomed and direct violent action is required. This group goes under the name of al-Gama'at al-Islamiya (the Islamic groups or movements). There are in fact many different groups under this banner. In addition to the gama'a there is also al-Jihad, a smaller group which gained notoriety through the assassination of Anwar Sadat. At the time this group was associated with Sheikh Omar Abd al-Rahman. [ He was implicated in the World Trade Centre, New York City bombing, February 1993, and was convicted of offences relating to this incident in January 1996.] In the mid-1980's, however he became the main spiritual influence on the gama'a. There are many factions, however, and under the pressure of police and security action, they necessarily change their structures and names. For example, in 1993 there was some speculation that a movement, previously thought to have been crushed by the security forces, al-takfir wal-hijrah [ This name literally translates as migration from society. The members of this very purist group are encouraged to insulate themselves from the corrupting influence of society. For speculation on its re-emergence, see Al-Ahram Weekly, Cairo, No. 124 (July 8 - 14 1993).] had been resuscitated and may have been the organiser of a spate of attacks on civilian targets. Beyond these radical Islamic groups are student organisations and unofficial Mosques, which provide the recruiting ground for the al-Gama'at al-Islamiya. [ For an informed discussion on the current strategy of these groups see Nabil Abdel-Fattah, Al-Ahram Weekly, Cairo, No. 123 (June 30 - July 7 1993) and No. 124 (July 8 - 14 1993).]

The division between the revolutionary and reformist groupings revolves around the extent to which the characterisation of society as Jahiliyyah is applied. Sayyid Qutb, a key figure in modern Islamist history claimed that:

"The world is living today in Jahiliyyah. In every order than the Islamic order people worship one another. It is within the Muslim scheme alone that all people will be liberated from worshipping one another by worshipping God alone , to be inspired by Him and to obey Him alone." [ Barry Rubin, Islamic Fundamentalism in Egyptian Politics, London: MacMillan, 1990, 50.]

However the central question for the Islamists is the extent of the jahiliyyah. Does this characterization merely cover the regime? Does it include the bureaucracy and military? Does it include the clerical leadership? Or does it extend to society as a whole? [ For an exploration of these issues from an Islamist viewpoint, see Sayyid Qutb, Milestones, Delhi: Markazi Maktaba Islami, 1991. Qutb's positions have now been revised by the Muslim Brotherhood itself, but have common currency among the more revolutionary groups.] The answers to these questions will define the relationship of groups to the reformist/revolutionary divide. If the entire society and not just the government has gone over to a state of ignorance, then this can be the basis for attacks on civilians, for they are part of the problem, they have become apostates. Thus the most revolutionary of these groups form strong internal structures, not just for military but also ideological reasons. They need to ensure that they remain free from the infection of society in order to develop the basis for an Islamic renewal. For the reformist Muslim Brotherhood this analysis is far too extreme and if true would constitute a major set back for Islam, as believers would have been reduced from nearly a quarter of the world's population to handful of the faithful. For them, the problem is the government. The political tactic of the Muslim Brotherhood has been to campaign for the implementation of Islamic Law by Parliament. A major success for this strategy was scored by the Islamist reformists in 1978 when the Egyptian Parliament voted to establish a committee to review the existing law to ensure that it was in conformity with shari'a. Perhaps less pleasing to them was the conclusion the committee reached in 1982 that most laws were already in conformity with shari'a. Nevertheless this process of attempting to influence the state from within is summed up by Muhammad Ahmad Abu al-Nasr outlining the reformist strategy, "All we ask is that the authorities declare that they agree to implement the Islamic shari'ah. The actual implementation could begin gradually and quietly." [Rubin (1990) 34.]

In elections during the 1980's the Muslim Brotherhood made electoral Alliances with legal parties. In 1984, its alliance with the secularist Wad won 15% of the vote and in 1987 its alignment with the Liberals and Socialist Labour party gained 17%. [ The latest Parliamentary elections in 1995 were conducted in such circumstances that any attempt to use the results to evaluate the level of support for the Islamist forces would be superfluous.] Beyond these statistics the real change brought about by the Muslim Brotherhood has been to transform the atmosphere in Egypt where virtually all political currents emphasis their Islamic credentials. The newspaper, Al-Majallah commented on this in the early 1980's:

"Perhaps the greatest manifestation of victory for the Muslim Brotherhood is that all parties without exception, have placed at the top of their platforms the application of Islamic Law, whereas they all previously considered this demand to be 'reactionary', regressive and a mixing of religion with politics and politics with religion." [Rubin (1990) at 31 (October 14 1981).]

Since the death of Nasser, the Egyptian government has been through a major re-orientation. Under Sadat it moved away from the USSR and towards an accommodation with the United States. After the Camp David Accords Egypt became the largest recipient of aid from the United States after Israel. (Total aid to Egypt now makes it top of the world's league table of aid recipients.) To carry through this strategic reorientation the Egyptian government had to defeat the forces of the political left, who were opposed both to the foreign policy and its domestic economic consequences. During the 1970's Sadat made alliances with the Islamists, principally the Muslim Brotherhood, to defeat the left (including the Nasserites). This process brought the Islamist current to the centre of the political stage and placed them in a position to make demands on the government. Since the 1970's, under both Sadat and Mubarak, the products of these demands have become clear. Indeed, the 1971 Constitution states that "the principles of the Islamic Shari'ah are the principal source of legislation." The Islamist objection to this formula is for the obvious reason that it leaves plenty of scope for other sources of legislation.

However in many ways the Islamists have made themselves felt on daily life. Mosques have become free to broadcast prayers and sermons to the local population. Religious broadcasting now accounts for some 20% of all television output. Al-Azhar has become more influential in the politics of the country and its censorship policy is now a bone of contention with the government's own board of censors. President Mubarak regards Islam as so important that he makes of point of giving a major speech on the Night of Power (the most sacred night during Ramadan). His 1993 speech was a trenchant defence of Islam as interpreted by the government and an attack on the 'militants' of the al-Gama'at al-islamyia for the perversions of 'true Islam'. Within the government the Ministry of Waqfs (Religious Endowments) has become extremely influential. Large sums of money have gone into the building of new mosques and the government has attempted to take control of as many independent mosques as possible so as to reduce the influence of the Islamists. There is a paradox however in an essentially secular government attempting to outdo the Islamists in its adherence to Islam.

In the field of law, the reaction to the orientalist school has been led not only by the Islamists of the Muslim Brotherhood or the gama'a, but also by mainstream and establishment figures. Schacht's view of the limits of Islamic Law meets a response from Dr al-Tayyib al-Najjar, a former President of Al-Azhar University:

"It is a mistake to think that the provisions of Islamic Law cover merely the required modes of worship, that is prayer, alms giving, fasting and pilgrimage, or the prescribed legal punishments for certain crimes such as adultery, theft, drunkenness, libel, and highway robbery. The provisions of Islamic Law are not restricted to these matters. They cover all transactions that are required in life and necessary for people's happiness, security and stability. They also deal with people's personal, social and political affairs." [Rubin (1990) at 82 (Al-Ahram, July 5 1985).]

The issue arises therefore as to the exact scope of Islamic law in the modern world which will regulate the personal, social and political affairs in the whole society. The effect of colonial intervention and the Western influence within the Islamic world has created a breach in the historical development of Islamic Law, particularly in the public law field. It is this breach that the Islamists attempt to fill, by claiming to return to the fundamental principles of the Qur'an and the sunna. Whether their interpretations of the sources of Islamic law are correct or not, the search for them should be seen as a reaction to the impact of Western power and the systematic de-legitimization of Islamic law and values. For Omar 'Abd al-Rahman, "there are two parties; the party of God and the party of devil." He makes very clear what the values of the party of God might be when he explains:

"We do not believe in democratic ideas, nor do we believe in natural Law or the ideas of the French revolution. We do not believe in the principles of the Bolshevik revolution, nor the we believe in materialist capitalism. But we do believe in the way of the followers of the prophetic traditions. To us the Qur'an and the prophetic traditions are the authentic premise for our ideas and our way of life and death. This confirms what was said by our Prophet Muhammad "Two things I have bequeathed to you: The Qur'an and my traditions. If you adhere to them you will not stray." [Rubin (1990) at 48.]

For al-Rahman the response to the European denial of legitimacy to Islam and Islamic Law is to reverse the process by denying the legitimacy of European political and legal values. The Islamists have more in common with the approach of some of their Western detractors than they might think. This absolutist position reminds me of a view from another perspective altogether. Francis Fukuyama comments that "the historical process rests on the twin pillars of rational desire and rational recognition, and that modern liberal democracy is the political system that best satisfies the two." [ Francis Fukuyama, The End of History and the Last Man, New York: The Free Press, 1992, 337.]

Fukuyama demands that history requires modern liberal democracy, al-Rahman believes that it requires the Qur'an and the sunna. Both denounce cultural relativism and both hold this concept to be a 'European invention'. For Fukuyama the contest between Europe and Islam has been won providing Western leaders have confidence in their system. In particular, Fukuyama is critical of viewing liberal democracy as a concept that is bound by European or Western culture. Islamists similarly see the only solution for the future of humanity, as turn to Islam. Both approaches are universalist.

A New Encounter?
In early April 1993 Colonel Gaddafi of Libya announced that he was going to implement with immediate effect certain aspects of shari'a, namely the huddud punishments. His statements to the press emphasised the importance of punishing theft, especially state theft, and also adultery. Gaddafi has many times announced the imminent implementation of shari'a during his years in power.

This announcement drew an interesting response from the Egyptian Islamic writer Fhami Howeidi. He used the opportunity to attack both the West and some Islamists, (for which Gaddafi is a useful foil), for a one-sided view of Islamic law. He argues that Islamic law is about "mobilising all the potential for good towards true progress and the betterment of life." He is particularly scornful of the singling out of criminal punishments:

"as though God sent the Prophet Mohamed to convey to the people only a set of legal codes with which to punish criminals and adulterers. Such restrictions to the concept of Islamic Law only show the penal aspect of the system as the Islamic message were primarily directed at criminals and degenerates.... This pitiful image of Islam is an affront to Islam itself." [ Fahmi Howeidi, No To Islamic Law, Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).]

He continues,

"One cannot help but be dismayed when confronted by the persistence among political leaders and proponents of Islamic Law in ignoring its comprehensiveness and equity and in treating their societies as it were a collection of criminals who can only to deterred by fear and threat of the whip or the sword." [ Fahmi Howeidi, No To Islamic Law, Al-Ahram Weekly, Cairo, No. 113 (April 22 - 28 1993).]

Howeidi's approach is by no means a tiny current amongst Islamists. However, such positions are difficult to maintain in the context of the rise of Islamist movements, which emphasise other aspects of the Islamic tradition. Within a jurisprudential perspective we are confronted with the problem of whether it is possible to reconcile sacred and secular legal discourses. Sheikh Muhammad Ghozali, a popular religious broadcaster in Egypt recently said in a court that, "A secularist represents a danger to society and the nation that must be eliminated. It is the duty of the government to kill him". [ Quoted by Yousef M Ibrahim, International Herald Tribune, London, August 19 1993.]

This comment came from the Sheikh during the trial of those accused with the murder of the secularist writer Farag Fodah. Ghozali it should be emphasised is not a member of the gama'a, or any of the other radical Islamist groups. Like Sheikh Gad al Haq Gad al Haq, the current rector of Al-Azhar, he believes that the separation of Islam from the state constitutes apostasy. It would be a mistake, however, to think that these Islamists speak only the language of the past. The current Islamist movement is very much a product of its times, and this can be seen in the discussion of women. For example Safnaz Kazem [Al-Ahram Weekly, Cairo, No 122 (June 24 - 30 1993).] talks about the veil as the dress of "liberation of women." Her arguments against separate organizations for women are not only based on an appeal to traditional Islamic principles about the indivisibility of humanity, but are also an appeal to humanistic solidarity in the face of imperialism. This anti-imperialist strain within Islamist ideology nearly dovetails with the socialist rhetoric of the immediate post-colonial phase. However the central issue of the relationship of Islam to the State undermines the experience of this period which was portrayed as yet another step along the road to modernization. For Islamic jurists, whether Islamist or not, this poses a serious dilemma as to how to deal with the secular state structure (and ideology) that was built during the post-colonial period.

Within Islamic jurisprudence there is a growing debate about these issues. Abdullahi Ahmed An-Na'im's Towards an Islamic Reformation is a significant contribution that concentrates on civil liberties, human rights and international law. An-Na'im sets out to apply the jurisprudential methodology of the Sudanese theologian Mahmoud Muhammad Taha. This rests upon an analysis of the Qur'anic revelations and how contractions resolved in the first two centuries of the Islamic era should be re-opened and resolved in a different way today. Taha was executed by the Sudanese regime for apostasy in putting forward such views. This fact confronts the non-Muslim jurist with an obvious problem. How are we to choose between the view of two positions both of which are presented as Islamic and yet one of which is also regarded by some Muslim authorities as being apostasy? An Na'im's work, however, suffers from its positivist methodology which has much in common with Mayer. Its great merit is the presentation in English of an Islamic juristic debate which itself offers an interesting encounter between Islamic and Western law.

Scholars in the 1950's and 1960's thought of Islamic law as of historical interest, yet the issues which its jurisprudence raise have re-emerged with the enhanced power of Islamic political regimes and movements in the last decade of the twentieth century. As it happens, Khadduri's schema of the adaptation of Islamic law to the 'modern law of nations' has become less tenable. In the fields of constitutional law and international human rights, it is also no longer possible to rest the case for a basically Western and secular system on the axiomatic positions, as Mayer does. A series of political and theoretical factors nourished the growth of the idea, among millions of people, that sacred law should be the basis of national and indeed global order. This adds another dimension to the insecurities which have become evident in the West with the modernist project. Within the Islamic world struggling with various aspects of post-coloniality, this is a response both to past colonial experiences and to the current 'new world order' framework. Religion has returned to the agenda of national and international societies - and their academies. Post-modernity, it seems, is a condition which requires re-engagements with discourses which the modernists had consigned to closure.

Edward Said warns us that "in our wish to make ourselves heard, we tend very often to forget that the world is a crowded place". [ Said (1993) xxiii.] This approach has been taken by some to argue that an appreciation of orientalism requires making space for other voices, the excluded colonial other. [See for example: Kevin Dwyer, Arab Voices - The Human Rights Debate in the Middle East, London and New York: Routledge, 1991.] This however assumes that we possess a discourse which can engage with the excluded. It underestimates the extent to which Western culture is itself colonial. Dirks approaches this issue with some deftness:

"If colonialism can be seen as culture formation, so also culture is a colonial formation. But culture was not simply some mystifying means for colonial conquest and rule, even as it could not be contained within colonised spaces. Culture was imbricated both in the means and the ends of colonial conquest, and culture was invented in relationship to a variety of internal colonialisms. Colonial theatres extended beyond the shores of tropical rivers and colonised spaces, emerging within both metropolitan contexts and the civil lines of colonial societies." [ Nicholas B. Dirks, Introduction: Colonialism and Culture, in Dirks (ed.), Colonialism and Culture, Ann Arbour: University of Michigan Press, 1992, 1- 25 at 3-4.]

Thus the adding of apparently new voices will, in all probability, turn into echoes. As Mitchell effectively argues, the Other becomes enframed within the western discourses, much as physical artefacts of other cultures appear in museums and exhibitions. [ See: Timothy Mitchell, Colonising Egypt, Cairo: American University Press in Cairo, 1988.] Mayer implies, but does not argue, that law is different, it is not part of culture but occupies a special place outside of it. She sees law as possessing an exclusive register. This positivism does violence to the concept of law. In scanning the issues of this paper it has become evident that law is part of culture and as such it is contested. The starting point for our enquiry into Islamic law is comprehending the character of contemporary culture as rooted in colonialism. Orientalism has constructed legal culture much in the manner that Dirks described. Reading legal cultures thus becomes a series of acts of engagement with internal and external colonialisms. In order to release Islamic law from the colonial exhibition we are obliged to demolish the walls of legal orientalism.

Comments:

John is one of the persons who had inspired me deeply. He is a great scholar and teacher. My life had changed because of him and this essay will illustrate to my readers why I have such a high regard to him.

Thank you, John.

Source: http://www.witness-pioneer.org/vil/Articles/shariah/jsrps.html

The Crimes and Rule of Law

2010-11-01T20:57:00.000-07:00

Introduction

The rule of law is fundamental to the western democratic order. Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Lord Chief Justice Coke quoting Bracton said in the case of Proclamations (1610) 77 ER 1352

"The King himself ought not to be subject to man, but subject to God and the law, because the law makes him King".

The rule of law in its modern sense owes a great deal to the late Professor AV Dicey. Professor Dicey's writings about the rule of law are of enduring significance.

The essential characteristic of the rule of law are:

i.	The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii.	A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii.	Restrictions on the exercise of discretionary power.
iv.	The doctrine of judicial precedent.
v.	The common law methodology.
vi.	Legislation should be prospective and not retrospective.
vii.	An independent judiciary.
viii.	The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix.	An underlying moral basis for all law.

My observations are on points i,ii and ix.

Supremacy Of Law

Supremacy of the law is a fundamental concept in the western democratic order. The rule of law requires both citizens and governments to be subject to known and standing laws. The supremacy of law also requires generality in the law. This principle is a further development of the principle of equality before the law. Laws should not be made in respect of particular persons. As Dicey postulated, the rule of law presupposes the absence of wide discretionary authority in the rulers, so that they cannot make their own laws but must govern according to the established laws. Those laws ought not to be too easily changeable. Stable laws are a prerequisite of the certainty and confidence which form an essential part of individual freedom and security. Therefore, laws ought to be rooted in moral principles, which cannot be achieved if they are framed in too detailed a manner.

The idea of the supremacy of law requires a definition of law (to which the above principles may go some way). This must include a distinction between law and executive administration and prerogative decree. A failure to maintain the formal differences between these things must lead to a conception of law as nothing more than authorisation for power, rather than the guarantee of liberty, equally to all.

The rule of law ensures that individuals have a secure area of autonomy and have settled expectations by having their rights and duties pre-established and enforced by law.

Interpersonal adjudication

This aspect of the concept of justice is based upon the rights and duties of the individual person. The liberal concept of justice is an interpersonal one - resolution of conflicts between individuals. Individuals can suffer or perpetrate wrong. Individuals can be punished, protected and granted restitution. Justice is an interpersonal thing. It consists in upholding that which is right and due as between persons. Social justice which involves society and groups is a concept which is directly antagonistic to the liberal idea. It is a concept which is nebulous and non achievable. Its proponents increase state power to effect it, with counterproductive results.

Even between persons, absolute justice is frequently unattainable. The best result which is practically and logically possible is not necessarily the perfect result. For example, in motor accident cases where one person suffers brain damage due to the negligence of a drunken driver, it is practically impossible to grant full restitution to the injured person. He can be compensated for medical expenses. He can be awarded a sum sufficient to improve his situation. He cannot be restored to his pre-accident condition. His brain damage cannot be repaired. It can only be ameliorated. It is not easy to determine a just punishment for the drunken drivers.

In other cases, perfect justice is logically (rather than physically) impossible. Such cases arise in situations where there are legitimate interests on both sides but the interests are in conflict. Only one can prevail. Someone has to lose. Justice requires that the better interest should prevail but that does not mean that there is no merit in the inferior interest. The law of adverse possession provides an illustration where the conflict is between an owner who has abandoned his land and another, professing to be the owner, sells it to a person who takes possession of it and improves it. There is merit (and possibly demerit) on both sides. The best that can be done is to develop rules to help ascertain which side has the better right.

Between persons, justice consists in upholding right behaviour and the courts can adjudicate between persons. Resort to the courts is only considered when a problem (a conflict) exists. The role of the judicial process is, therefore, the resolution of conflicts. Perfect justice cannot be dispensed by the state. The role of the courts is to deal with injustice once it has already occurred.

The traditional emphasis upon adjudication and non-recognition of so-called social welfare rights is evident in the protection which the law traditionally afforded to private property. The idea of redistribution of wealth is completely alien to the common law. A rich man cannot be sued by a poor man merely for being rich. Taxation was prohibited to the executive government, being confined rather to the representatives of the nation in Parliament, who were expected to be jealous defenders of their individual liberty and property.

Inter-personal adjudication is practical and realistic. By its very nature it deals with the real problems which arise between individuals, instead of those problems which arise solely in the minds of ideologues.

Law based on standards and fault
The second facet of the liberal concept of justice is that a person should not be disadvantaged or punished except for fault (intentional, reckless or negligent wrong doing, strict liability applying in exceptional circumstances). The idea of fault is the golden thread that runs through the fabric of the legal order. The Magna Carta contains one of its early manifestations. But the whole of the common law relating to crimes, civil obligations and property rights is characterised by the notion that fault underlies punishment or deprivation. A system of sanctions based on fault presupposes known and pre-existing standards of conduct which bind the community.

The Australian industrial relations system is fundamentally structured on notions of distributive justice and undefined policy. It enables tribunals to vitiate contracts, to penalise certain classes and to reward others on the basis of unpredictable considerations, although in recent times employers have become their predictable victims. Consumer protection laws similarly disregard contractual rights and obligations in compensating losses incurred by consumers. In the field of family law, fault has been all but rendered irrelevant in the annulment of marriages, grant of custody, award of maintenance and the settlement of property. The examples can be multiplied.

The idea of commutative justice which has characterised the laws and customs of most civilised societies is now being progressively replaced by distributive justice. Commutative justice aims at correcting the violation of pre-existing rights. It seeks to give back to one what has been taken away from him or to give him adequate compensation in lieu of it. Distributive justice on the other hand aims at distributing wealth according to egalitarian schemes. In practice, distributive justice results in the creation of new rights and liabilities in substitution for those traditionally enjoyed or suffered under the law. These rights are created in accordance with the ideologies, prejudices, or subjective opinions of individual bureaucrats or members of tribunals who make decisions. Powerful pressure and interest groups influence those making the decisions. The law is particularised and rendered uncertain, thus undermining the foundations of justice and liberty.

Due process
The third feature of the liberal concept of justice is the emphasis on procedures. The liberal does not believe in the possibility of achieving equality, democracy, justice, the public good and other ideals through legislative and prescriptive action. Such a task is too complex for the human imagination, conception and execution. An emphasis on procedure is one of the foundations of the rule of law. Procedures provide for limitations on power. Procedures provide that before judicial, legislative or executive decisions are taken, a series of checks and balances are in place to mitigate against the possibility that the decisions will not be hasty, ill-conceived or based on corruption, passion, ideology or eccentricity.

The key institutional and procedural characteristics of a liberal legal order include rights which ensure that a person is not disadvantaged except according to rules of procedure and evidence established by law, which ensure a fair trial. These institutional safeguards give protection to the cluster of personal liberties associated with the criminal process, such as the right not to be imprisoned or held without trial, the right to be informed of charges and the right to be presumed innocent until proven guilty. The rules of procedure, evidence and natural justice also protect individuals from arbitrary governmental action and illegal deprivation of private rights. They are essential to the protection of individual rights of personal freedom and private property.

The Moral Dimension

Analyses of the rule of law will not generally refer to the moral dimension. There is in education, media, politics and even from within the church and its agencies an attack on traditional morality. The conflict is not between traditional morality and values neutrality. It is between one moral order and another — the values of the new moral order include: autonomy for the individual, equality and social justice. If law is not based on morality on what can it be based? The traditional moral values within a society are being replaced by a new set of values. The rule of law and the common law are in retreat because their moral base is being undermined.

An Overview of Natural Law Theory

Natural law theory is one of the most important theories in the philosophy of Classical Realism. It is also widely misunderstood by many who have either not taken the time to study it or have heard of it and dismissed it as a "medieval" relic. What I want to do here is merely sketch out a general presentation of natural law theory, with the hope that the reader will become interested enough to pursue further study of it. I will provide a link to more in-depth resources at the end of this essay.

Before we get into an overview of the nature of natural law theory itself, let's take a brief look at some history.

The concept of natural law has taken several forms. The idea began with the ancient Greeks' conception of a universe governed in every particular by an eternal, immutable law and in their distinction between what is just by nature and just by convention. Stoicism provided the most complete classical formulation of natural law. The Stoics argued that the universe is governed by reason, or rational principle; they further argued that all humans have reason within them and can therefore know and obey its law. Because human beings have the faculty of choice (a free will), they will not necessarily obey the law; if they act in accordance with reason, however, they will be "following nature."

Christian philosophers readily adapted Stoic natural law theory, identifying natural law with the law of God. For Thomas Aquinas, natural law is that part of the eternal law of God ("the reason of divine wisdom") which is knowable by human beings by means of their powers of reason. Human, or positive, law is the application of natural law to particular social circumstances. Like the Stoics, Aquinas believed that a positive law that violates natural law is not true law.

With the secularization of society resulting from the Renaissance and Reformation, natural law theory found a new basis in human reason. The 17th-century Dutch jurist Hugo Grotius believed that humans by nature are not only reasonable but social. Thus the rules that are "natural" to them -- those dictated by reason alone -- are those which enable them to live in harmony with one another. From this argument, by the way, Grotius developed the first comprehensive theory of international law.

Natural law theory eventually gave rise to a concept of "natural rights." John Locke argued that human beings in the state of nature are free and equal, yet insecure in their freedom. When they enter society they surrender only such rights as are necessary for their security and for the common good. Each individual retains fundamental prerogatives drawn from natural law relating to the integrity of person and property (natural rights). This natural rights theory provided a philosophical basis for both the American and French revolutions. Thomas Jefferson used the natural law theory to justify his trinity of "inalienable rights" which were stated in the United States Declaration of Independence.

During the 19th century natural law theory lost influence as utilitarianism and Benthamism, positivism, materialism, and the historical school of jurisprudence became dominant. In the 20th century, however, natural law theory has received new attention, partly in reaction to the rise of totalitarianism and an increased interest in human rights throughout the world. With this contemporary interest in mind, let's now turn to our attention to the natural law theory as understood by the tradition of Classical Realism.

What do we mean by "natural law"? In its simplest definition, natural law is that "unwritten law" that is more or less the same for everyone everywhere. To be more exact, natural law is the concept of a body of moral principles that is common to all humankind and, as generally posited, is recognizable by human reason alone. Natural law is therefore distinguished from -- and provides a standard for -- positive law, the formal legal enactments of a particular society.

Since law must always be some dictate of reason, natural law also will be some dictate of reason. In fact, it is law discovered by human reason. Our normal and natural grasp of the natural law is effected by reason, that is, by the thinking mind, and in this service reason is sometimes called "conscience." We, in all our human acts, inevitably see them in their relation to the natural law, and we mentally pronounce upon their agreement or disagreement with the natural law. Such a pronouncement may be called a "judgment of conscience." The "norm" of morality is the natural law as applied by conscience. Lastly, we can say that the natural law is the disposition of things as known by our human reason and to which we must conform ourselves if we are to realize our proper end or "good" as human beings.

To sum it up, then, we can say that the natural law:

is not made by human beings;
is based on the structure of reality itself;
is the same for all human beings and at all times;
is an unchanging rule or pattern which is there for human beings to discover;
is the naturally knowable moral law;
is a means by which human beings can rationally guide themselves to their good.

It is interesting to note that virtually everyone seems to have some knowledge of natural law even before such knowledge is codified and formalized. Even young children make an appeal to "fair play," demand that things be "fair and square," and older children and adults often apply the "golden rule." When doing so, they are spontaneously invoking the natural law. This is why many proponents of the natural law theory say it is the law which is "written upon the hearts of men." These are examples of what is called "connatural knowledge," that is, a knowledge which:

follows on the "lived experience" of the truth;
is the living contact of the intellect with reality itself;
is not always given expression in concepts;
may be obscure to the knower;
is overlaid with elements from the affective or feeling side of man's nature.

Now, our reflection on our own conduct gives rise to the explicit formulation of the precepts of the natural law. We as human beings put our "commonsense" notions of natural law under "critical examination." In other words, our natural impulses toward "fair play," justice, and so on are subject to a rigorous investigation and rationalization. And our understanding of natural law becomes more precise as we consider and codify the principles or precepts of natural law. The primary precept of natural law will be the most basic principle about human action that can be formulated.

Those readers familiar with Classical Realism will recall that there is an absolutely first and indemonstrable principle in the speculative order of things. That is, there is an absolutely basic, self-evident truth of reality upon which we build our entire metaphysics which serves as the foundation for our view of the ultimate structure of reality. This is the Principle of Contradiction, from which we derive other basic principles such as Identity and Excluded Middle. Strictly speaking, the Principle of Contradiction cannot be "proved." It must be accepted as an absolute "intuitive" or self-evident truth, the truth of which is shown by an analysis of the terms of the Principle and the impossibility of thinking the opposite.

Natural law theory is of the "practical order" of things and the first principle of the practical order is a principle that directs human acts in all their operations, and it will be concerned with the "good," since we act in terms of what a least seems good to us. Therefore, the primary principle of the practical order -- the first precept of natural law -- is a formulation based upon the notion of the good and is stated in the following way: The "good" (according to reason) must be done, and evil (what is contrary to reason) must be avoided. The simplest statement of this precept is, of course, "Do good and avoid evil."

Although we rarely express the precept of "Do good and avoid evil" explicitly (just as we rarely state the Principle of Contradiction explicitly in daily life), nevertheless we always act in terms of such a precept. This fact points to the fundamental truth of such a precept, and indicates how it expresses something "natural" to human beings. A human being naturally inclines to seek what appears good to reason, and naturally shrinks from what appears to be evil. Hence, the justification of speaking of this basic moral law as "natural" law.

Upon further reflection, we can distinguish, within natural law, primary and secondary precepts. The primary precepts will correspond to the order of natural inclinations in human beings. The most fundamental inclination of all, "Do good and avoid evil," will give rise to other primary precepts such as the natural inclination to self-preservation, to live in society, to avoid harm to others, and to know truths about the reality we live in and our own human nature. These primary precepts are unchangeable to the extent they concern the primary ends of the natural inclinations inherent in all human beings.

The primary precepts are very general in their formulation. The secondary precepts, on the other hand, are more particular or specific and are concerned with things to which we are not inclined so immediately. Among these are such precepts as those regarding the education of children, and the stability of family life, and the demands of hospitality. On the negative side, we also have secondary precepts regarding the neglect of children, deliberate injury to others, and so on.

Do we know everything about the natural law? This is a common question asked and a good one. The answer is a simple "No." The discovery of the natural law is a continuously unfolding enterprise. Just as it took human beings a long time to separate out and clarify the laws of physical nature, so too for the laws of moral nature. The passage of time and additional philosophical reflection always raises new issues in natural law theory. For instance, slavery was once accepted as normal and natural even by many who subscribed to natural law theory. We now know that slavery violates the natural law. Society once accepted judicial torture as being normal and natural. We now know that judicial slavery violates the natural law. And, personally, I am convinced that one day our society will "discover" that capital punishment violates natural law and we will abolish it.

The obvious conclusion here is that our knowledge of natural law, particularly regarding its secondary precepts, is incomplete, and probably will always be incomplete. We, as civilized and rational human beings, will always be involved in a "critical examination" of our actions in the practical order. Out of this reflection will come new and refined "truths" regarding ethics and moral philosophy. In fact, I suspect that we are now in a time when the most important decisions we make as a society will be those in ethics and moral philosophy (think "bioethics" and "weapons of mass destruction"). This is one reason why I have no reservations about suggesting that all students in our institutions of higher education need a good dose of philosophical studies, especially, of course, in the tradition of Classical Realism.

I hope you have some general knowledge of natural law theory as a result of this brief overview. Moreover, I hope I have interested you to seek more knowledge about this fascinating theory.

Comments:

I strongly believe in rule of law and natural law. We are living in a system. The system will reacts according to our intentions. If our intentions are good then we will be rewarded otherwise if have to face the consequences.

The crimes and criminals always will be punished not by the State but the law itself.

References:

http://www.radicalacademy.com/philnaturallaw.htm
http://www.ourcivilisation.com/cooray/btof/chap180.htm

Watergate is Revisiting

2010-08-12T00:51:00.000-07:00

In June of 1972 in Washington, D.C. an event occurred, a burglary, which ended up holding worldwide importance. It was on this date that five people broke into the Democratic National Headquarters to bug their telephones. These men were members of the ‘Plumbers’, a group of anti-Castro Cuban refugees, former FBI agents and former CIA agents among others. The group was strongly Republican. The place they broke into was The Watergate Hotel.

Many people remember the name Watergate as a blanket term used to describe the fall of President Richard Nixon. But do you remember the specifics of those events? It has taken years filled with books and interviews to begin to understand what the scandal and its complications truly were. This article will attempt to be a ‘primer’, a starting point from which you may go and research further this event.

In the early 1970’s America was still reeling from its turbulent time in the 1960’s. One of the issues that was greatly contested in the 60’s, Vietnam, had carried it’s self over into the new decade. By this time though, the opinions and thoughts of many concerning the war had started to change. Daniel Ellsberg was one of these individuals. A former defense department analyst, his thoughts on the war had turned and in 1971 he turned over a secret Pentagon report concerning the history of the war to the New York Times. The Times immediately began publishing these ‘Pentagon Papers’ which greatly infuriated many of those in charge of the country, including President Nixon. When Nixon became unable to stop the publication of the papers through legal channels, he turned in another direction for help.

The Plumbers were a ‘secret’ unit created and maintained by the White House with the expressed purpose of ‘fixing leaks’ in the administration. The Plumbers were immediately charged with going after Ellsberg. The thought was that if the papers publication could not be stopped, the next step would be to discredit the man who provided those papers. This included breaking into Ellsberg’s psychiatrist’s office to dig up what they could.

They worked tirelessly at their goal and were soon rewarded with another job in the following election year: derailing the Democratic ticket. On June 17, 1972 a group of men broke into the DNC Headquarters to find what they could and to bug the offices. A sharp-eyed security officer saw the break in, called the police and the burglars were quickly taken into custody. Over the next few days and months, amazing insights into these men came out. One of the burglars used to be a GOP security aide, another was found to have a 25,000$ check that was supposed to have gone to Nixon’s re-election campaign. In fact, it turned out that all of the burglars were on the payroll of the Committee to Re-Elect the President (C.R.E.E.P.).

As this unfolded, Nixon went on to win the presidential election in one of the biggest landslides in history. It would be Nixon’s last big win. Following his re-election the repercussions from the Watergate break-in grew larger. Several of the burglars went to jail. As the connection between these burglars and the Republican White House grew stronger, several White House staffers were forced to resign and White House Chief Counsel John Dean resigned.

Rumors swirled about the break-in, the similar events that many believed had also occurred and Nixon’s involvement in it all. In May of 1973 the Senate opened up hearings on the Watergate break-in and under intense pressure, Nixon had Archibald Cox appointed as Special Prosecutor to the case.

The Senate investigation went forward and immediately became damaging to the President in June as John Dean became the first (former) White House staff member to admit that he had discussions with the President concerning Watergate and how to cover it up. In July things got worse as it was revealed in the Senate hearings that Nixon had a sophisticated taping system set up in the Oval Office with which he had taped all of his conversations. The Senate Committee and Special Prosecutor Cox immediately requested that Nixon hand those tapes over. Citing everything from National Security to Executive Privilege, Nixon refuses to hand over the tapes.

The pressure on Nixon continued to grow strong, so much so that on October 20, 1973 he was moved to commit the ‘Saturday Night Massacre’. Unable to shake Cox’s pressure, Nixon contacted Attorney General Elliott Richardson and ordered him to fire Cox. Richardson refused and was himself immediately fired. Nixon then turned to the Assistant Attorney General to fire Cox. He too refused and was fired. Nixon finally found someone who would fire Cox but the resulting backlash forced Nixon to have a new Special Prosecutor appointed. Leon Jaworski was given that task and immediately began pressing Nixon to hand over the tapes.

Throughout the rest of 1973 the country stood by breathlessly as Nixon, the Senate and the prosecutors went round and round. First Nixon said that one of the key tapes which the prosecutors wanted had an 18 ½ minute gap on it, then Nixon tried to send written (and heavily edited) transcripts of many of the taped conversations in lieu of the actual tapes. The pressure continued to be placed on Nixon though to hand over the tapes.

In July of 1974 Jaworski had no other choice but to name Nixon as an un-indicted co-conspirator in the obstruction of justice over the Watergate matter. Nixon continued to claim Executive Privilege in his refusals to hand the materials over. The matter was taken up by the Supreme Court who unanimously rejected Nixon’s argument and ordered that he turn the tapes over. When he refused, the House of Representatives, three days later, voted to impeach the President.

Nixon now realized that he was into a corner from which there was only one way out and so it was that on August 8, 1974 Richard M. Nixon became the first United States President to resign. Gerald Ford, who had become Vice President upon the resignation of Nixon’s Original VP Spiro T. Agnew, assumed the highest office of the land. Days after becoming President, Ford pardoned Nixon completely. Nixon was the only ‘Watergate conspirator’ who spent no time in jail.

The lessons learned by these events are enormous. The story of Watergate is a complex and deep one full of intrigue and back room deals, public politics and personal motivations. It is a deeply American event that touched the world.

Source:

http://www.essortment.com/all/watergatescand_reji.htm

Comments:
The front news on the papers today on spycam of MB's office remind me on the infamous Watergate Scandal and let's we hope that this will be the not the case for this incident.

Money Laundering and Terrorist Financing - A Global Threat

2010-08-04T21:59:00.000-07:00

International Narcotics Control Strategy Report

Bureau for International Narcotics and Law Enforcement Affairs

March 2005

International recognition of, and action against, the threat posed by money laundering continue to increase. Money laundering poses international and national security threats through corruption of officials and legal systems, undermines free enterprise by crowding out the private sector, and threatens the financial stability of countries and the international free flow of capital. Undeniably, the revenue produced by some narcotics-trafficking organizations can far exceed the funding available to the law enforcement and security services of some countries.

After the terrorist attacks of September 11, 2001, the United States and its allies launched a global war on terror focused on five fronts: diplomatic, financial, military, intelligence, and law enforcement. The United States and the global community quickly recognized the critical role that combating terrorist financing should play in the overall global effort against terrorism.

Money Laundering and Terrorist Financing: Differences and Similarities

Most crime is committed for financial gain. The primary motivation for terrorism, however, is not financial; rather, terrorist groups usually seek goals such as publicity for their cause and political influence. Ordinarily, criminal activity produces funds and other proceeds that traditional money launderers must disguise by taking large cash deposits and entering them into the financial system without detection. Funds that support terrorist activity may come from illicit activity but are also generated through means such as fundraising through legal non-profit entities. In fact, a significant portion of terrorists� funding comes from contributors, some who know the intended purpose of their contributions and some who do not. Because terrorist operations require relatively little money (for example, the attacks on the World Trade Center and the Pentagon are estimated to have cost approximately $500,000), terrorist financiers need to place relatively few funds into the hands of terrorist cells and their members in order to carry out their objectives. This is a significantly easier task than seeking to disguise the large amounts of proceeds generated by criminal and drug kingpins.

Funding Sources

Transnational organized crime groups have long relied on criminal proceeds to fund and expand their operations, and were pioneers in using corporate structures to commingle funds to disguise their origin. It is the terrorists� use of social and religious organizations, and to a lesser extent, state sponsorship, that differentiates their funding sources from those of traditional transnational organized criminal groups. While actual terrorist operations require only comparatively modest funding, international terrorist groups need significant amounts of money to organize, recruit, train and equip new adherents, and otherwise support their activities.

Because of these larger organizational costs, terrorists often finance their terrorism efforts with a portion of the proceeds gained from traditional crimes such as kidnapping for ransom, narcotics trafficking, extortion, credit card fraud, counterfeiting, and smuggling. Indeed, some Foreign Terrorist Organizations (FTOs), such as the Revolutionary Armed Forces of Colombia, (FARC), the United Self Defense Forces of Colombia (AUC) and Sendero Luminoso (Shining Path) in Peru, are so closely linked to the narcotics trade that they are often referred to as "narcoterrorists."

Like narcotics-related money launderers, terrorist groups also utilize front companies; that is, commercial enterprises that engage in legitimate enterprise, but which are also used to commingle illicit revenues with legitimate profits. Front companies are frequently established in offshore financial centers that provide anonymity, thereby insulating the beneficial owners from law enforcement. In addition to commingling the proceeds of crime, terrorist front companies also commingle donations from witting and unwitting sympathizers.

Movements of Criminal and Terrorist Funds

The methods used to move money to support terrorist activities are nearly identical to those used for moving and laundering money for general criminal purposes. In many cases, criminal organizations and terrorists employ the services of the same money professionals (including accountants and lawyers) to help move their funds.

In addition to the continued use of the formal financial sector, terrorists and traffickers alike employ informal methods to move their funds. One common method is smuggling cash, gems or precious metals across borders either in bulk or through the use of couriers. Likewise, both traffickers and terrorists rely on moneychangers. Moneychangers play a major role in transferring funds, especially in countries where currency or exchange rate controls exist and where cash is the traditionally accepted means of settling accounts. These systems are also commonly used by large numbers of expatriates to remit funds to families abroad.

Both terrorists and traffickers have used alternative remittance systems, such as "hawala" or "hundi," and underground banking; these systems use trusted networks that move funds and settle accounts with little or no paper records. Such systems are prevalent throughout Asia and the Middle East as well as within expatriate communities in other regions.

Trade-based money laundering is used by organized crime groups and, increasingly, by terrorist financiers as well. This method involves the use of commodities, false invoicing, and other trade manipulation to move funds. Examples of this method include the Black Market Peso Exchange in the Western Hemisphere, the use of gold in the Middle East, and the use of precious gems in Africa.

Some terrorist groups may also use Islamic banks to move funds. Islamic banks operate within Islamic law, which prohibits the payment of interest and certain other activities. They have proliferated throughout Africa, Asia, the Middle East, and most recently Europe, since the mid-1970s. Many of these banks are not subject to the anti-money laundering regulations and controls normally imposed on secular commercial banks. While they may voluntarily comply with banking regulations, and in particular, anti-money laundering guidelines, there is often no control mechanism to assure such compliance or the implementation of updated anti-money laundering policies.

Combating Money Laundering and Terrorist Financing: An Integrated Approach

Building the capacity of our coalition partners to combat money laundering and terrorist financing through cooperative efforts, and through training and technical assistance programs, is critical to our national security. While there are some important differences between how money laundering and terrorist financing are conducted, and also some counter efforts that are unique to each activity, there are no appreciable differences in terms of capacity building through training and technical assistance.

The U.S. has developed an "anti-money laundering/counterterrorist financing" (AML/CTF) strategy based on three pillars:

Development of capacity-building programs aimed at reinforcing the institutions of our foreign allies to combat money laundering and terrorist financing. Capacity building is the linchpin of the strategy because of its forward-looking and preventative approach that focuses on enhancing countries� capabilities to safeguard their financial systems from abuse by criminals and terrorist financiers.
The use of traditional and non-traditional law enforcement techniques and intelligence operations aimed at identifying criminals and terrorist financiers and their networks in order to disrupt and dismantle their organizations. Such efforts include investigations, diplomatic actions, criminal prosecutions, designations and other actions designed to identify, nullify, and disrupt the flow of terrorist financing and those who make such crimes possible. In order to achieve ultimate results, the intelligence community, law enforcement and the diplomatic corps must assert a concerted proactive approach that develops and exploits investigative leads, employs advanced law enforcement techniques and increases cooperation between financial investigators and prosecutors.
Participation in global efforts to deter terrorist financing by publicly naming, shaming, and blocking the assets, financial transactions, and property of terrorist groups and their supporters. Under United Nations Security Council Resolutions (UNSCR) 1333 and 1373 all member states have an obligation to identify terrorist assets and freeze them without delay. UNSCR 1267 and related resolutions require blocking actions against the financial resources, travel, and access to arms of specific individuals and entities linked to Usama bin Ladin, Al-Qaida, or the Taliban, as well as measures to deprive terrorists and their supporters of access to the financial system.

Integrating Efforts

The U.S. has found that combining these pillars into an integrated strategy is the most effective approach to tackle the challenges of money laundering and terrorist financing. Only by integrating our AML/CTF efforts in a cooperative way, both domestically and internationally, can we continue our common goal of detecting, deterring, and dismantling global terrorist networks.

While well-established mechanisms of interagency cooperation to fight money laundering have existed for a number of years, in order to more quickly effect this integration within the U.S. Government for terrorist financing, the President established a Policy Coordination Committee (PCC) under the auspices of the National Security Council to ensure the proper coordination of counterterrorist financing activities and information sharing among all agencies. The PCC coordinates and integrates the efforts of the disparate entities and focuses them on collectively pursuing terrorists and their financiers. Other countries have also taken a similar approach at integrating AML/CTF efforts either through a coordinating ministry, national anti-money laundering council, or counterterrorist center.

Many governments have used specialized task forces to integrate successfully domestic operations aimed at combating money laundering and/or terrorist financing. These task forces typically include FIU personnel, financial investigators, central bank employees, and prosecutors. Indeed, the USG, based on its experience in training its counterparts around the world, is increasingly employing cross training (e.g., select financial regulators taking part in financial investigative courses for law enforcement) as a means of encouraging practical integration of AML/CTF efforts.

Internationally, governments are recognizing the need to integrate their efforts more closely in order to implement new international standards designed to counter money laundering activity and the collection and movement of terrorists� funds. Effective integration will increase as members of the Financial Action Task Force (FATF) and FATF-style regional bodies implement the new Special Recommendation on Terrorist Financing, Special Recommendation IX (SR IX), which is intended to ensure that terrorists and other criminals can not finance their activities or launder the proceeds of their crimes through physical cross-border transportation of currency and negotiable bearer instruments. Implementing SR IX on Cash Couriers will require unprecedented cooperation among border, customs, law enforcement, and FIU authorities both domestically and internationally.

International organizations and bodies, as well, are increasing coordination of their AML/CTF efforts. For example, there is now unprecedented cooperation between the FATF and the IMF and World Bank. The FATF and these international financial institutions have adopted a joint methodology to evaluate AML/CTF regimes and are cooperating in their respective on-site assessment programs.

The FATF and the G-8 Counter-Terrorist Action Group (CTAG) are also engaging in a cooperative effort to build CTF capacity by integrating FATF training and technical assistance reports with efforts by CTAG to coordinate donor assistance. Other organizations, such as the United Nations, the Egmont Group of FIUs, the FATF style regional bodies, and regional organizations, such as the Organization of American States, are also increasing their cooperative efforts.

Source: http://www.state.gov/p/inl/rls/nrcrpt/2005/vol2/html/42380.htm

Civil Disobedience - The History Of The Concept

2010-07-22T21:52:00.000-07:00

The concept of civil disobedience has evolved over a long period of time. Ideas drawn from different periods of history and from different cultures have contributed to its evolution. The idea that there is a law that transcends the laws of the state is found in Socrates (c. 470–399 B.C.E.), in some of the classical Greek tragedies, and in the Indian concept of dharma (duty). In these traditions, should the higher law and the laws of the state come into conflict, the individual had the obligation to disobey the laws of the state. In the Middle Ages, St. Thomas Aquinas (1225–1274) defended the natural-law view that unjust laws did not bind the citizen in conscience. John Locke (1632–1704) taught that the government derived its authority from the people, that one of the purposes of the government was the protection of the natural rights of the people, and that the people had the right to alter the government should it fail to discharge its fundamental duties.

The writer who made the theory famous, put it into practice, and gave the practice the name "civil disobedience" was Henry David Thoreau (1817–1862). His ideas on the subject are found in the celebrated lecture that he delivered in 1848 to the Concord Lyceum in Massachusetts, under the title "On the Relation of the Individual to the State." It was first published in printed form in 1849 under a different title, "Resistance to Civil Government," in Aesthetic Papers, a volume edited by Elizabeth Peabody. It first appeared under the title "Civil Disobedience" only in 1866, four years after Thoreau's death, in a volume of his writings entitled A Yankee in Canada with Anti-Slavery and Reform Papers.

Two principles underlie Thoreau's conception of civil disobedience. The first is that the authority of the government depends on the consent of the governed. The second is that justice is superior to the laws enacted by the government, and the individual has the right to judge whether a given law reflects or flouts justice. In the latter case the individual has the duty to disobey the law and accept the consequences of the disobedience nonviolently. In Thoreau's case, he judged that the laws upholding slavery and supporting the Mexican War (1846–1848) were unjust. He chose to spend a night in jail rather than submit to the unjust laws.

Gandhi.

Mahatma Gandhi (1869–1948) broadened the scope of civil disobedience and internationalized its practice. Gandhian civil disobedience originated in 1906, in South Africa, as part of his campaign for the defense of the civil rights of the disenfranchised Indian immigrants. On his return to India in 1915, he made civil disobedience the primary moral force behind his leadership of the Indian nationalist movement.

His idea of civil disobedience drew from a wide variety of intellectual sources. Plato's Apology of Socrates was one of them. In 1908 he published a paraphrase of it under the title The Story of a Soldier of Truth. The Sermon on the Mount had a profound influence on him, especially as interpreted by Leo Tolstoy in his The Kingdom of God Is within You (1893). Patanjali's Yogasutra and the Bhagavad Gita also guided the development of his thoughts on nonviolence as it applied to civil disobedience.

When in 1906 he started the civil rights campaign in South Africa, Gandhi did not know what term to use to describe it. (He read Thoreau only in 1907). Some called the new campaign passive resistance, in comparison with the British Passive Resistance Movement against the Education Act of 1902. But he was unhappy with the comparison for two reasons. The first was that British passive resistance did not forbid violence as a means of achieving its goal; the second was that it did not require that its practitioners be free from hatred of their political opponents.

Gandhi called his practice "satyagraha," a Gujarati word meaning "firmness in adhering to truth." Satyagraha, free of the defects of passive resistance, introduced six elements into the theory and practice of civil disobedience:

First, its moral basis was grounded in truth, a basis much deeper than that provided by the theory of consent. To be binding, laws had to be truthful. All untruthful laws had to be resisted, though civilly—that is, by truthful means.
Second, civil disobedience presupposed the obligation to obey the state: only those had the right to practice civil disobedience who knew "how to offer voluntary and deliberate obedience" to the laws of the state.
Third, commitment to nonviolence was an essential component of civil disobedience. The commitment in question could be either moral or tactical, depending on the moral aptitude of the practitioner.
Fourth, the practice of civil disobedience required a minimum degree of moral fitness, to be acquired by the exercise of such virtues as truthfulness, nonviolence, temperance, courage, fearlessness, and freedom from greed.
Fifth, a practitioner of civil disobedience had to accept the punishment consequent to the disobedience voluntarily, and without complaint.
Finally, engagement in civil disobedience had to be complemented by engagement in organized social work.

For Gandhi, it was not enough to seek to improve the state; it was equally necessary to seek to improve civil society. To assist Indians to combine civil disobedience with voluntary social work, he wrote Constructive Programme (1941, revised in 1945). It identified the major social evils prevalent in Indian society, such as religious intolerance, caste violence, and discrimination against the untouchables, minorities, and women. The removal of these social evils by voluntary work was as important as the removal of unjust laws by civil disobedience. According to Gandhi, "civil disobedience without the constructive program will be like a paralyzed hand attempting to lift a spoon."

Martin Luther King Jr.

The third major figure who contributed greatly to the development of the practice of civil disobedience was Martin Luther King Jr. (1929–1968). He made civil disobedience the distinguishing feature of the civil rights movement in the United States. In this he was deeply influenced by Gandhi's methods. But he was also influenced by Christian humanism, as is evident in his "Letter from Birmingham Jail" (1963). The letter has been called the most widely read and discussed manifesto on civil disobedience since Thoreau's essay. Addressed to his fellow African-American clergymen, it explained why immediate, direct, nonviolent action was a duty incumbent upon every American who wished to rid the nation of segregationist laws. Here King faced a dilemma. On the one hand, the law had by 1954 declared segregation to be unconstitutional, yet on the other it also tolerated segregationist practices in certain states. How then could one advocate breaking some laws while obeying others?

One could do both, he contended, because one had the right to judge each law on its own merit. And the criterion he recommended for making such judgement was drawn from Christian humanism. According to St. Augustine of Hippo (354–430), an unjust law was no law at all. And according to Aquinas, an unjust law was a human law that was not rooted in eternal and natural law. Just laws uplifted human beings, while unjust ones degraded them. The segregationist laws were unjust and dehumanizing and therefore had to be disobeyed. King contributed greatly to making civil disobedience a respected tradition of American politics. In this he marks an advance on Thoreau, who seemed to appeal, hitherto, mostly to New England intellectuals. King actualized the potential that was in Thoreau.

In the late twentieth century, civil disobedience became a tactic adopted by various protest movements worldwide. The anti-nuclear weapons movement, the green movement, and the movement against globalization have adopted it with varying degrees of enthusiasm.

Source: http://science.jrank.org/pages/8660/Civil-Disobedience-History-Concept.html

Capitalism Vs Socialism

2010-07-14T22:05:00.002-07:00

Compare and Contrast Capitalism and Socialism Capitalism and socialism are both types of systems in different societies throughout the world that have been successful at times, but also not so fortunate in its’ success at other times in history. Both have their good and bad points, although the main focus I am presenting will acknowledge socialism in better terms than the capitalist economy. This is to judge which system will be most prosperous, for the most amount of time, in the majority of people’s lifetimes. Also, opinions from socialists are given to how they examine a capitalist society, and how capitalists examine a socialist society. Criticism is given in each one’s point of view, along with defending arguments. Also, my personal opinion is the main conclusion to which economy is the most prosperous based on facts contributed in my own research on both capitalism and socialism. The definition for capitalism would be a form of social system that separates the economy from the state. Laissez faire is another name that was given by Scottish philosopher Adam Smith. He said it is better for a government to have no intervention in the economy at all. Capitalism is based upon private ownership of property and every person has the right to live his life in any manner he chooses, as long as he does not violate the rights of others. Individuals are allowed to run their own businesses in a free market in such way that he or she creates the wealth for him or her self. It usually depends on how self-motivated a person is to determine how wealth they will become. If a person is always working hard to make money, they most likely will, compared to a “bum” who can not get welfare in this type of system. Capitalists believe that the only purpose of a government is to protect its citizens from force or fraud. They claim that the force is the protection of individual’s rights. This is achieved in such ways as the use of police force to protect the rights of citizens at home, a military to protect citizens from foreign attack, and a court system to enforce contracts and settle disputes between residents. Capitalists also feel that initiating force can only violate rights, thus the government only uses force in relation of those who initiate it. For instance, if an individual can not start his own electric company, it is a violation of his freedoms. A capitalist’s argument towards this statement would be that the governments’ legal monopoly on utility companies prevents people from starting their own electric company. In a capitalist society all people can start any kind of business they want. The protections of monopolies are not there. If a person wants to take the chance on their own company, even if it is next to one that is successful, the peril is in their “own hands.” The only law capitalists clearly state, and one must follow is that members of society can not infringe on the rights of others. They give credence to holding individual rights as absolutes, and freedoms as absolutes. From a purely economic view, a capitalist is a person who buys in order to sell for profit. Socialism is quite different compared to capitalism, almost like an exact opposite. Instead of the ownership of private property, the government plays a large role where society owns social property such as banks and factories. Although, they own it through the government. Socialism is a society where the resources of the society, controlled by workers, are used for the benefit of the whole economy, not just the rich. The government does have control over production and economic activity, but the workers themselves decide what to produce, where to produce it, how much to produce, and how to distribute the product fairly for the benefit of everyone. Philosopher Karl Marx and his followers were convinced that sooner or later alternatives to capitalism would emerge because “it is already in the process of developing within a capitalist society and we must find a way to overcome the resistance of capitalists and their supporters to achieve socialism.” The best definition for socialism is the equal distribution of society’s goods to be achieved by the government. It focuses on positive freedoms such as everyone is entitled to the basic necessities: food, clothing, shelter, and a job. This is where the government steps in to help those who are needy and have rational reasons to why the government needs to give assistance to these people by providing programs such as welfare. The best point that can be said about the socialist system is that there are incentives to good workers, which makes them work harder to get these bonuses. The bonuses can be anything from cash, extra vacation, company parties, and prizes. The working class has the basic knowledge and principles they need to run the economy. Training is given where it is needed, and educational institutions have been refined so we have professionals in the fields where it is more important that the person has extensive knowledge in the subject. For example, doctors go to school for many years to learn all they can about the human body so that they will know what they are doing when it comes to the time they have to perform a surgery and make judgements on a real human being. For those who are working in a socialist economy the government has made laws all companies must follow that are also working class principles. All workers should be treated fairly and equally and this is what these laws were made to do, protect the working class. Minimum wage is set so all workers receive atleast this amount of pay, and then wages must go up according to their type of job. Also, good working conditions must be provided for safety reasons, no child labor, and no discrimination at the work place are a few laws that have been made. Capitalists and socialist disagree about certain ideas each group has and criticizes each other’s ideas. First we will start with what capitalists think socialism is. They feel that man must sacrifice his own notions for the sake of the greater good in their economy. They feel that they must also sacrifice their individual mind, which denies them the sole means of survival for man and his nature as a rational being. Capitalists do not regard this system as an ideal. A capitalist’ ideal accommodates one standard of life, man’s life. The measure of a socialist system consists of the appraisal of, the relationships between men, and institutions that govern the forms of association. In defense to this, socialists say that the workers in a capitalist economy struggle against corporate greed. Working people should work together socially to produce all things together. Capitalists are different and take the wealth that they create to build more capital for himself. They feel as if there is a contradiction between social production and individual capitalist ownership. One capitalist deprives another capitalist of property and more wealth is concentrated towards a smaller and smaller number of people. In order to compete in this type of market things must be cut; jobs, wages, and benefits. Although, capitalists say that contrary to this highly held belief it is not a system that exploits a large portion of society for the sake of a small number of wealth businessmen. They say that socialism causes the exploitation of labor. They do this by placing monopolies on labor and production and exist merely to follow what a “spokesman” of socialism has in mind. There are good points and bad points concerning both types of systems, although I feel that socialism has more good points than a capitalist economy, which makes it more successful. First of all I will start with all of the bad points I feel are in a capitalist society. Unregulated capitalism leads to worker exploitation because there is no government intervention to protect workers. Racism in the workplace takes place because there is not a minimum wage set and impedes poorer minorities from reaching economic advancement. They will not have enough money to pay for the high priced items the companies they work for produce. If a minority worker were able to do the same work for a lower wage then it would be in the economic self-interest of the employer to hire that person. The driving force under capitalism is driven by a profit motive because firms want to maximize their profits at all times. The protection against discrimination is not there, but it is provided by a socialist economy. A capitalist’s argument against this would be that workers are free to choose who they work for and if they decide that they are going to work for someone who pays less than minimum wage, that is their own fault and should seek work elsewhere. Poor working conditions are also a problem that comes up. With an unregulated economy, immoral businessmen will try to increase their own profits by selling cheap, unhealthy, and unsafe products to an ignorant community. The workers who make the products have unsafe machinery, an unsanitary workplace, and no insurance so if they were to get hurt they would not be safeguarded. In a free market there are no government agencies that say what goods, foods, and services can be sold. Since 1938 the U.S food and drug administration has decided what medical goods and food can be sold in the United States. This protects us from attaining drugs or food that can be dangerous to our health. Capitalists do not see this as a good thing because “it is an attempt by the government to intervene in the free choices of individuals regarding what medical products or food one can purchase.” I think this is a ridiculous idea because we as individuals can not know what medicines or food can be harmful to us because we do not have the education to determine this. The FDA is there to do the testing and research for our own good, and if we want to abuse the product they say is bad, then we can also do it at our own risk. This sort of regulation is also mandatory in the socialist government. In a free market the only type of monopoly that can exist is a “non-coercive monopoly” or one that is earned, in the words of a capitalist. The goal of a welfare system is to help certain citizens when they need financial aid in order for them to be productive members in society. Capitalists do not provide this service and say it is the government stealing money from its citizens on the basis of those with more wealth who have a duty to serve those with less. It may do this, but in the long run it creates a class of fewer people who are dependants and have been given a way restart their lives or begins one. Financial aid for college students through grants and other scholarships is another example of this. The money is going to a good cause to better young adult’s education and we can have more qualified workers in various occupations. I do agree with a few concepts that belong to a capitalist society when it comes to competition in businesses and pollution concerning private property. In a free market they do not have monopolies to protect them from competition. The fact that they do have so much competition would make a company strive to give the best service and goods to their customers. Once they are considered to be the best in their field people will go to their company. For another company to do well they must also offer the same, or if not better qualities in their products. Therefore, we then have many companies who are all offering good products. The point that overrides this in my mind is all of safety standards that are unregulated and do not protect the workers who make the successful companies’ products. The key to stopping unnecessary pollution is the verifying identity for capitalism, and the best thing that could come out of it. The reason that it is so easy to pollute rivers, oceans, air, and land is because it is publicly owned. Since public property belongs to everyone, no one person takes care of it and property with no real owner is easy to pollute. If all property is privately owned then no one can dump garbage in a river because it will drift into another person’s private property, thus violating his or her rights. Capitalists do not have a government, but they do believe in courts, or a way to settle disputes over contracts such as property rights. Also, if the beaches and parks are owned privately and the owner charges money for people to use his land, then it would be in his own self interest to keep it clean so more people will come to his park instead of a competitors’. Socialism is the better of the two systems in several ways, and more successful. It is the governmental laws and regulations that make them this way. It does not make the economy more complicated or unfair by any means. Socialism is a society where all people who want to work not only can work, but work for a good living, have a say over the conditions of their work, wages, and even who runs their workplace. There are no bad jobs, only low wages and bad working conditions, but under socialism all workers are required to be treated with respect and have a job that gives them dignity. Laws have been made to protect the worker from low wages, poor working conditions, and other types of exploitation. Discrimination against any worker, whether it is because of sex, race, color, or religion is also illegal. Employers must hire for skills in a person and can not use the excuse such as they do not want a woman working there as an excuse when she is the most qualified. A minimum wage has been set and raises with the economic times when prices also raise. In a capitalist society those who are not given this raise can not make a good living, where as socialists believe that everyone is entitled to this. If a person is skillful then they are paid according to that. Education plays an important role also to help employees reach these skills. Socialism is a society where workers will be trained how to run a society and learn the skills to make good economic plans. Social ownership is not enough. It also means that working people run, operate, control, manage, and own all of this property. It makes decisions as to where it wants to be in five years that affects us for the fifty years, and what plans we are going to make to get there. When comparing and contrasting socialism with capitalism one can find good in both ideas of systems, it just depends on a person’s opinion. Also, I think morals also play a large role in which system a person would choose to follow. Socialism would be the system a moralist would more likely follow than capitalism. It appears that capitalists are greedier and care about what is better for himself or herself than everybody as a whole. Where as highly moral people tend to help others and care less about being wealthy and more how they are treated, along with their fellow workers. They like the government because they, and I also feel that the government does provide good programs for those in need. The key to economic success lies in the socialists’ economy because they not only offer freedom for everybody, but a way so all businesses are fair with each other, not only in competition, but also to their customers and employees.

Source: http://www.freeessays.cc/db/35/prz87.shtml