Saturday, 28 May 2016

Seyla Benhabib & the Flying Spaghetti monster

Seyla Benhabib doesn't write utterly stupid shite even though she is a Professor of Poli Sci at Yale and has as richly Orient & all rational Criticism disorienting a cognomen as Gayatri Spivak or Homo Baba.

Still, in mitigation, I might mention she's Turkish, so let's just blame Attaturk and seek for the all darkening Ghalibian thread- though, admittedly, Sheikh Galip was but a pale shadow of our own Mirza Sahib- or derisive tajjali of auto-poietic self-parody which alone could constitute this astute Ariadne's abandonment to so Havisham an oeuvre.

Since the Germans, with their typical Himmelfarting humour,  have given her the 'Meister Eckhart' prize for some particularly egregious nonsense concerned with 'Human Rights', let us interrogate, under that rubric alone, this deisidaimon Martha (who unlike our Desi Marys, actually possesses genius and, more unforgivably yet,  has done some genuine homework) to establish if she really has 'chosen the better part'- i.e. that of treading the weird of becoming a worthless, workless, Mary whose academic apotheosis is by Grace alone.

I begin with her stricture- based, it appears, on a NYT article by one not Litvak but Liptak and what's more an Adam- on Scalia and Roberts, who, quite rightly reject, as alien to American Constitutional Law, the notion that any Judgment of a foreign Courts can have a legitimate place in an indigenous ratio decidendi. (My remarks are in bold)

'The status of international law and of transnational legal agreements and treaties with respect to the sovereignty claims of liberal democracies has become a highly contentious theoretical and political issue.  Rubbish. Either Liberal Democracies can enforce their Sovereignty by force or they don't exist. The Syrian Liberal Democratic Republic of EcoFeminist Organic Farmers does not exist. Why?  Its sovereignty claim may well have been a highly contentious 'theoretical and political issue' for Benhabib and her ilk. But, it wasn't for anybody else, was it? In fact, truth be told, Benhabib herself didn't waste any time contending with anybody about its viability. 

On September 18, 2008 The New York Times carried an article by Adam Liptak entitled “U.S. Court, a Longtime Beacon, is Now Guiding Fewer Nations.”  Liptak detailed how in the last decade citations of decisions of the U.S. Supreme Court had declined, while the influence of the European Court of Human Rights and the Canadian Supreme Court had grown. As we would expect to happen as indigenous case law accumulates. The European Court has salience for European countries bound by the relevant treaty, whereas Canada has salience for Commonwealth countries by reason of an historic tie. What is important is not whether an American ratio is quoted but whether American judgments are complied with. This happens in an asymmetric manner because America is hugely powerful in relation to most other nations.  This evidence was all the more surprising since so many of these courts and their leading constitutional documents – such as The Indian Constitution of 1949 which was explicitly derived from not the American but Irish model; the Canadian Charter of Rights and Freedoms of 1982 which naturally looks to America not Britian because only the former has a Federal structure the New Zealand Bill of Rights of 1990 and the South African Constitution of 1996-- which all drew on what had become a Commonwealth tradition as opposed to some supposedly unique American constitutional principles at their inception.
Benhabib, how stupid are you actually? Do you really think that the American Constitution arose autocthonously? Do you not understand that Coke's magisterial Institutes were the mother's milk of American constitutionalism? Are you utterly illiterate in the English language? Have you never read Macaulay and Bagehot? Do you really not understand that Americans aren't the inheritors of Cherokee wisdom but that of the English Whigs? What prevented you from talking to Irish, Israeli, Kiwi or Indian Jurists to find out how foolish your argument is?
BTW a particular Juristic Hermeneutic can have cross-border mimetic effects but no fucking Constitution in the World aint essentially autocthonous in its stipulation forbidding judicial reliance on foreign fatwas or deracinated Deduktionsschriften.
At stake is not only the esteem in which the U.S. Supreme Court is held world-wide, which is based on the American Executive's willingness and ability to give force to the Judiciary's decisions- but the standing of international and foreign law itself in U.S. courts.  America, even at Yale, even in Benhabib's classroom, is eminently and effectively sovereign. Of course, there are limitations on this Sovereignty and that 'discovery process' has more or less been done, at least with respect to Turkey, India and Israel. In his highly controversial decision that struck down the death penalty for juvenile delinquents, Justice Anthony M. Kennedy cited the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, among other documents. Did Kennedy, who BTW, was a Reagan nominee , really violate the American Constitution in the manner suggested? Why? Did the fellow suddenly turn into a drunkard or was he simply stupid? Why not just ask him? Oh! You'd feel stupid asking a stupid question of a very intelligent man. 
What is the point, Benhabib, of your suggestio falsi re. Chief Justice Kennedy? Who is it meant to be take in? We've all got smartphones now and can fact check from Wikipedia.
Why are you telling stupid lies? Oh! You are trying to compete with Homi Bhabha and Gayatri Spivak, is it? Give it up, Benhabib. You haven't the necessary revanchist post Colonial irreason. Your bloviating aint surreal- just stupid.
 In his dissenting opinion, Justice Antonin Scalia, thundered: “The basic premise of the court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand.”  Seeing this as an all or nothing equation, Justice Scalia drove to a reductio ad absurdum: “The Court should either profess its willingness to reconsider all these matters in the light of views of foreigners, or else it should cease putting forth foreigners’ views as part of the reasoned basis of its decisions. To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making, but sophistry.” (Emphasis in the original)
Scalia's bluster points to the one thing Kennedy didn't do- viz. reconfigure stare decisis on an other than autocthonous basis- yet you fucking cite this as your leading argument? Why? Because you believe everything you read in the NYT? How fucked in the head are you exactly, Benhabib?
This controversy concerns not only the heft and weight of foreign courts in influencing the decisions of Supreme Court justices- urm, it is zero except in the sense of showing the broader genealogical persistence of a nativist hermeneutic which has to do with protecting liberty- even the liberty of States to be wrong from the point of view of a perfectly just society- but broader issues such as: what is the proper epistemology of judicial decision-making? The proper epistemology? Are you fucking kidding me? Jurisprudence is an Epistemology- otherwise it is nothing. It concerns an autopoietic Knowledge System which generates its own mixed strategies of survival by performing its own Dedekind cuts upon Hermeneutic algorithms and by  constituting its intuitions on the basis of what Turing needed purely Brouwerian choice sequences for.
What? I'm talking nonsense? Yet, my nonsense is actually in a viable 'Marxist' tradition. Benhabib is simply spouting stupid lies.
Why should judges not learn from other colleagues who have considered similar problems in their own jurisdictions? Urm... why did the Sanhedrin discriminate against univocity? Even if all Judges in every jurisdiction agreed as to what constitutes a just society, still, States must have the right to be wrong about some things. 
If Life evolved by Natural Selection, it must be the case that Human Beings will valorize Tiebout Sorting rather than Jurisprudential univocity.  In any case, purely as as an error detection mechanism, every judicial algorithm will be in re. de juri criteria, if not de facto acceptation mechanisms, wholly stare decisis autochtonous. Otherwise, Hannan Consistent regret minimization is defeated and our species is known to be a priori maladaptive.

Isn’t legal epistemology enriched by looking across the border and even the ocean? Isn't Scientific Method enriched by just looking across the ocean and accepting Voodoo?  Citing a foreign ruling does not convert it into a binding precedent, does it?  Nope. But you just went ahead and pretended there was some 'Kennedy type' stare decisis which did something Scalia and Roberts- the fuckers!- inveighed against.
Coz like obviously if Scalia says something in a dissenting Judgment, it must be true and so you're not just making up this shite out of whole cloth at all.
Not only Justice Antonin Scalia, but Chief Justice John G. Roberts Jr. as well, OMG, Roberts as well! oppose this liberal-minded problem-solving approach (what? Reagan's appointee Kennedy was 'liberal-minded' was he? Both Bork and Kennedy restrict the scope of substantive due process a la Griswold and do so for reasons of autochthony- explicitly 'originalist' in the one case and small 'l' 'libertarian' in the other) to judicial decision-making that would learn and borrow from other courts and international documents.  
Benhabib thinks Jurisprudence can be a rule-bound ratocinative process which is indiscriminate in terms of doxastic inputs.
In other words, there is no difference between Supreme Court Judges and editors of Physics or Mathematics Reviews.
It's a reductio ad absurdum, okay, by why precisely is it fucked in the head?
Legal processes are the solution of a David Lewis type Conventional Schelling focal co-ordination game. Technological or Mathematical co-ordination games are of an entirely different type because there is a substantive not salience based, i.e. hysteresis ridden,  solution for canonicity.
Why is Benhabib's cri de couer for a non stare decisis Jurisprudence fucked in the head?
One answer focuses on qwerty type hysteresis and evaluates the cost of conversion in comparison to the immediate efficiency gain for new entrants. Essentially the former swamps the latter, which in any case turn out to be imaginary.
Another answer, which involve basic Economic Principles , better addresses a situation where there is 'Exit' between (not just) Anglo-Saxon legal regimes. Here the notion of the optimality of Tiebout Sorting under Knightian Uncertainty has salience. Benhabib didn't read about this in the NYT so she does not address this issue- which was lucky because otherwise she'd just cash out as Timur Kuran!- which would be confusing for their respective spouses.

Justice Robert considers the citing of foreign law to be not an innocent exercise in decision-making- as opposed to what it actually was- viz a genealogical argument of an entirely hermeneutic nature, hence perfectly in conformity with autochthonous stare decisis- but a compromise or dilution of sovereignty.  Liptak quotes Justice Roberts from his 2005 confirmation hearings: “If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no senate accountable to the people confirmed that judge. And yet he is playing a role in shaping the law that binds the people in this country.” By blurring the distinction between “citing an opinion” and “creating a precedent,” Justice Roberts raises the specter of the weakening of democratic sovereignty and judicial accountability. Fuck off. Roberts and Scalia weren't 'blurring' anything nor were they raising up any unclean spirits. It is you who are doing so, Benhabib. But you iz talkin about people wot really exist and whom we can talk to to check whether you are telling the truth. By contrast, Spivak and Bhabha just talk obviously wog-gobshittery about how Jane Austen went Ass to Mouth on Hegel and Rudyard Kipling  was actually Ronald Firbank or whatever and round off by denouncing Narendra Modi in a manner which makes diehard Congress fuckwits like me think There is No Alternative to NaMo.

What indeed is the status of foreign and international law in a world of increasing interdependence? Increasing interdependence? Are you fucked in the head? Do you not know any fucking Economics you soi disant Marxist? The Stone Age exhibited interdependence militating for normative convergence- thus making possible the exchange of wives and knives. Ever since then, we have had Tiebout Sorting Civil Societies- i.e largely eusocial, non-coercive, re-inforcers for a purely transactional, not substantivist at all, type of ethics Does foreign and international law dilute sovereignty? No. At the margin, it adds noise to signal. In the case of failed or failing States, sure, no doubt, immigrant populations may become the prime mover of new initiatives- but the countervailing power of non-failed States tend to prevent any utterly pathological germination. What is the source of the anxieties and fears invoked by so many in these debates about the problematic relation of transnational legal norms and democratic sovereignty? You are. If a fuckwit like you can teach at Yale how are we to trust to the traditional idiocy of all its alumni?
Let me distinguish between foreign, international and transnational law from the standpoint of a political theorist rather than that of a legal scholar OMG, you are a political theorist who doesn't know Law! You are just shite aren't you? A fucking token appointment. You are just a willing participant in a Circus of Diversity or, more to the point, a recumbent presence in an entirely spurious Xenophilia's Cosmic Zoo: By ‘foreign law’ I will broadly understand special obligations, privileges and encumbrances which emerge among states as a consequence of bilateral or multilateral treaties.  Thus, tax agreements, commercial contracts and the like among countries pertaining to individuals or corporations would be prime examples. Foreign law already has a specific meaning for American jurisprudence. Wikipedia defines it as follows- Foreign law is law referenced or cited by a court that comes from a country other than that in which the court sits. Foreign law is usually not binding on the court siting it, and citation to foreign law as persuasive can be controversial. However, in some circumstances, a court may be called upon to determine the meaning of a foreign statute, such as when one is incorporated into the language of a contract before the court. By contrast, Benhabib blurs the distinction between the controversial and conventional acceptations of the term so as to pull off a piece of question begging sleight of hand.
By ‘international law’ I understand public legal conventions pertaining to the world community at large, some of which may be formulated in written form, such as the Universal Declaration of Human Rights, and others of which, such as norms of jus cogens, are unwritten but pertain to customary international law.  Jus cogens norms mean that any treaties among nations and international agreements which engage in gross human rights violations by advocating genocide, ethnic cleansing, slavery, mass murder are eo ipso invalid.
Jus cogens is a peremptory law which can only be implemented against a defeated or weak country, otherwise, its sovereign immunity is de facto effective and jus cogens remains a dead letter. The American Supreme Court, in the Michael Domingues case, did not admit that killing kids was against 'jus cogens', nor did it hold that the Inter-American Commission on Human Rights had the power to make any judgment binding upon itself. Take the case of Pakistan. It engaged in genocide and mass murder. However its Treaties with Britain and America and so on did not become eo ipso invalid. 
In defining ‘transnational law’ I follow Harold Koh’s processual focus on “transnational legal process.” He writes: “… the theory and practice of how public and private actors including nation-states, international organizations, multinational enterprises, nongovernmental organizations, and private individuals, interact in a variety of public and private, domestic and international fora to make, interpret and enforce rules of transnational law… transnational law is both dynamic –mutating from public to private, from domestic to international and back again – and constitutive, in the sense of operating to reconstitute national interests.”
Harold Koh? You are quoting Harold Koh? The apologist for Obama's drone strikes? You are seriously badass Benhabib! (Actually, poor old Benhabib was writing this a couple of years before NYU students started agitating against Koh's appointment as Professor of International Human Rights Law! Still, its good to know that the availability cascade on which she has so thoughtlessly hopped was going in the direction of extra judicial killing as a fun video game for all the family)

What about the status then of multilateral treaties concerning human rights in particular? I will raise this question not with specific reference to the U.S. case alone- in which case your blathering could be falsified- but against the background of larger transformations in international law- in which case, your blathering is worthless.

I approach these questions as a political philosopher and not as a legal scholar
. Why not approach them as a plumber or a person looking for the loo? I want to look at the alleged conflict- you being the person making the allegation- between one class of international legal norms in particular, namely those pertaining to human rights, broadly understood, and sovereignty, and I want to argue that in fact the alleged conflict between such norms and democratic sovereignty derives from an inadequate understanding of yours as to how international and transnational norms function. Such norms enhance rather than undermine popular sovereignty which however remains just a made up word like good vibrations.

Since these transformations are altering norms of state sovereignty where? The U.S? Nope, that isn't happening nor is it happening anywhere you can point to as well as impacting the actual capacity of states to exercise sovereignty rubbish! The constraints on capacity to exercise Sovereignty are what they have always been- nothing at all to do with some transformation you imagine is occurring it is important at the outset to distinguish between state sovereignty and popular sovereignty. No it isn't. States exist and exercise sovereignty by putting people in prison and waging wars. Popular sovereignty is just a made up word. It doesn't pertain to anything in the real world and therefore suffers no constraints. It can repeal the law of gravitation as easily as it can dissolve international borders- i.e. it can't at all.  The concept of ‘sovereignty’ ambiguously refers to two moments in the foundation of the modern state which never occurred and the history of modern political thought which is worthless rubbish in the West since Thomas Hobbes can plausibly be told as a negotiation of these poles or equally plausibly as a pole dancer: First, sovereignty means the capacity of a public body, in this case the modern nation-state, to act as the final and indivisible seat of authority with the jurisdiction to wield not only ‘monopoly over the means of violence,’ legitimate violence you cretin. When you beat your husband, Obama bears no blame to recall Max Weber’s famous phrase, except, you didn't recall it correctly did you, you worthless cretin but also to distribute justice and manage the economy.

Sovereignty also means, particularly since the French Revolution, why particularly? What about the Glorious Revolution or the American one? popular sovereignty, that is, the idea of the people as subjects and objects of the law, or as makers as well as obeyers of the law. Like what happened when Napoleon crowned himself Emperor. Popular sovereignty involves representative institutions, the separation of powers, and the guarantee not only of liberty and equality, but of the “equal value of the liberty of each.” Right! That's what happened after the French Revolution! Who knew? Etienne Balibar a Marxist fuckwit who teaches Modern Languages to shitheads has expressed the interdependence between state sovereignty and popular sovereignty thus: “… state sovereignty has simultaneously “protected” itself from and “founded” itself upon popular sovereignty to the extent that the political state has been transformed into a “social-state”… passing through the progressive institution of a “representation of social forces” by the mechanism of universal suffrage and the institutions of social citizenship…”ii Where does Balibar think this has happened? How does he think it could have happened? What type of Sovereignty lends itself to be the foundation of its antithesis? We could much more meaningfully replace the term 'state sovereignty' with 'the catachrestic rule of Cat King' and popular sovereignty with 'the omnipotence of the flying Spaghetti monster' because there is a You Tube Video which shows that there is a compossible state of the physical universe in which Balibar's blather has an other than availability cascade based acceptation.

My question is: how does the new configuration of state sovereignty influence popular sovereignty? The answer is- in the same way that the catachrestic rule of the Cat King influences the omnipotence of the flying Spaghetti monster. Which political options become possible? Which are blocked? I will argue that cosmopolitan norms enhance the project of popular sovereignty while prying open the black box of state sovereignty. Really? You are going to point to a real world situation where that has happened, are you? But, Benhabib, if you could do so you wouldn't be a worthless fuckwit would you? Thus you can't do any such thing. The truth is you are just going to string together non sequiturs and not present an argument at all. They challenge the prerogative of the state to be the highest authority dispensing justice over all that is living and dead justice over the dead eh? within certain territorial boundaries coz that's where dead people can be found- within territorial boundaries. In becoming party to many human rights treaties, states themselves “bind” their own decisions. No they don't. America is not so bound. Ask Chief Justice Kennedy. The U.K is not so bound. The Judiciary holds the Queen-in-Parliament to be sovereign. There can be no indefeasible legal obstacle to Brexit. A small or weak or hopelessly divided country may say 'we no longer exist as a sovereign state. We will make no laws for ourselves but rely upon others to do so'. However, when this happens, that country ceases to exist except notionally or as a geographical expression.

The argument presented in this paper bears upon but does not lead to a definitive position regarding the global justice debate in contemporary political philosophy. No. Because then you couldn't just talk worthless shite. You'd have to do some thinking. One aspect of that debate, largely between Rawlsians such as Thomas Nagel and more cosmopolitan theorists such as Thomas Pogge as well as Joshua Cohen, concerns the picture of the world order from which we proceed. We? We? The people you quote are Academics- i.e. worthless shitheads. How does it matter how you proceed? Just don't rape your students or call them nig-nogs. That's all we ask of you. You are child minders, nothing more.

From International to Cosmopolitan Norms

It is now widely accepted by hyprocritical shitheads that since the UN Declaration of Human Rights in 1948, we have entered a phase in the evolution of global civil society which is characterized by Mcarthyite Witch Hunts, Stalinist purges, Ethnic Cleansing, Thermo-nuclear Cold Wars and proxy hot wars all of which don't signify at all a transition from international to cosmopolitan norms of justice. While norms of international law emerge through treaty obligations to which states and their representatives are signatories, cosmopolitan norms accrue to individuals considered as moral and legal persons in a world-wide civil society. In other words, during the Cold War and its Neo-Con continuation, States abandoned the Westphalian principle of Cuius regio, eius religio and asserted a sort of euphemistic sovereignty over each others supposedly suffering and mute subjects.  Even if cosmopolitan norms also originate through treaty-like obligations, such as the UN Charter, can a norm arise through a treaty? Nope. If the treaty was entered into strategically, then no norm existed, there was only the pretense of one. Shitheads in Academia may be fooled but no one is surprised when the pretense is dispensed with when it ceases to be expedient and even if the various human rights covenants can be considered for their member states, their peculiarity is that they bind states and their representatives, sometimes against the will of the signatories themselves. Okay. So if you do something strategically but forget you did it strategically or meanwhile lose the capacity to act then, yes, your sovereignty has indeed withered away. But that was because of some other, more basic malaise in your polity- e.g. letting to shithead Professors fuck up the country. This is the uniqueness of the many human rights agreements concluded since WWII. I want to describe this process as ‘multilateral covenantalism.’ As opposed to what it actually is- viz a strategic Nash Equilibrium. Benhabib lives in the U.S. She knows that the U.S made no caveat re non-refoulement when signing up to the ICCPR, yet did and does a lot of 'rendition' that amounts to precisely that. Moreover, its allies are more or less complicit in this. This proves 'multilateral covenantalism' was purely strategic, not normative at all. 

Let me list here briefly the numerous human rights declarations which have been signed by a majority of the world’s states since the 1948 Universal Declaration on Human Rights (UDHR):iv the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, adopted by Resolution 260 (III) A of the UN General Assembly on December 9 1948 (Chapter II); the 1951 Convention on Refugees (which entered into force in 1954);v the International Convention on Civil and Political Rights (ICCPR; signed in 1966 and entered into force in 1976, with 152 countries are parties to it)vi; and the International Covenant on Economic, Social and Cultural Rights (ICESCR; entered into force the same year and with similar number of signatories),vii and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW; signed in 1979 and entered into force in 1981). viii These are some of the best known among many other treaties and conventions.

But what does all this really mean? What possible significance do these multilateral human covenants have if states continuously and brazenly violate them? Are these not mere words at worst or aspirational ideals at best that have little traction in limiting state conduct? Can these treaties be considered law at all? 
No. Law is what the Judiciary says it is. In the American case, Judges have said that International Treaties mean shit- even if the Executive wants them implemented.
Since Judges are not swayed by Benhabib type blather, she is wasting her own and our time. What's more she knows this because she quotes 'a recent article entitled, “When Judges Make Foreign Policy,” Noah Feldman discusses the case of Medellin v. Texas to illustrate the complexities of the status of international law in the U.S. courts. “The case, Medellin v. Texas, grew from a conflict between the Supreme court and the International Court of Justice over death-row inmates in the United States who were apparently never told that they had the right to speak to the embassies of their home countries, a rights guaranteed by a treaty called the Vienna Convention on Consular Relations. The international court declared that the violation tainted the inmates’ convictions and insisted that they have their day in court to try to get them overturned…. The Supreme Court disagreed….What made this conflict between the Supreme Court and the International Court of Justice particularly stark was that the Bush administration had for once taken the side of international law.” Noah Feldman, “When Judges Make Foreign Policy,” The New York Times Magazine (September 28, 2008), p. 56.
 I do not agree with the kind of political pragmatism that Feldman recommends to the Court in attempting to resolve these issues in the future. We need a more principled normative account of the ways in which international and transnational norms do or do not enhance democratic popular sovereignty. In the Medellin v Texas case they would have obviously done so by enhancing the rights of all, particularly inmates, to due process. What can be more democratic than protecting due process rights? The Court upheld an undemocratic sovereigntisme in this case. 

So there we have it. The U.S is a real country. It definitely has State Sovereignty. It definitely is under the Rule of Law. Yet that Rule of Law is wholly autochthonous and has no truck with any academic availability cascade to do with 'popular sovereignty' or 'multilateral covenantalism'. Benhabib is welcome to say 'Boo to the Supreme Court!' but so can an upholder of the catachrestic Rule of the Cat King or a votary of the flying Spaghetti monster. What keeps her safe from contempt proceedings, should she attempt to prejudice an actual trial, is the far greater contempt her Credo produces in fair minded people. But, Sophia has ever felt so about those who profess Philosophia- 

As Ghalib said- 
Neath thy eyebrow's Islamic arch, for wine's fountain we prayed
& brothels yet nestle in the Mosque's hoary shade
Proving that, in no wise prodigal, Abounding Grace
So all things perish, saves a single face.
Notes-

{131,1}

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