Modest Proposals

Every society needs taboos, things decent people don't debate. The efficacy of torture is no longer one of those taboo subjects -- the Bush administration has made it debatable. Belgravia reports on efforts by John Podheretz to normalize genocide:

What if the tactical mistake we made in Iraq was that we didn't kill enough Sunnis in the early going to intimidate them and make them so afraid of us they would go along with anything? Wasn't the survival of Sunni men between the ages of 15 and 35 the reason there was an insurgency and the basic cause of the sectarian violence now? [Emphasis added.]

Glenn Reynolds "wonders" whether Israel is being "too nice" by not committing genocide in Lebanon now.

These are two of the most influential (if not interesting) pundits on the neoconservative right. We are in for some dark times.

The Pithlord, being a selfish sort, is upset about all the time he wasted over the last four years arguing against the "humanitarian" justification for the war in Iraq. I could have been doing something more useful, like crosswords or basket weaving. The reason for war in Iraq was never humanitarian (and it wasn't really about permanent bases or oil, either). It was always just tribal revenge.

Pacifism, Anarchism and Pith & Substance

Having been recently accused of pacifism and having only partly denied it, I think it is time to unveil Pith & Substance's overall political philosophy of presumptive anarcho-pacifism (or PAP, for short).

Lawyers are big on burdens of proof, and shifting them, so the reader will forgive me if I employ that kind of talk.

Basically, the philsophy is that, absent some good reason to the contrary, pacifists and anarchists are right. Unlike those proposing war and state action, they don't need to have good arguments (which is a good thing, because they are mostly too stoned to come up with any).

Unlike an AP, a PAP recognizes that sometimes (the exceptional time), the call for war or state action is correct. Taxes may be levied, regulations passed, even wars started. But a PAPpy is always suspicious of the reasons given, and never pretends to be symmetrically suspicious of not regulating, not taxing or not blowing things up. Naturally, the call for domestic democratically-acceptable state action faces a less severe normative hurdle than bombing foreigners.

PAPists have been known to invoke the subsidiarity and just war traditions in support of their presumptions.

Celanese--Case Comment--Thumbs Up

The tabloids will be all over this one. Apparently, a plaintiff who obtains an Anton Pillar order and whose solicitors thereby, through lack of care, get access to a defendant's privileged documents bear the burden of showing that the defendant was not prejudiced in order to avoid an application to have said counsel removed from the case. The burden of proof is not, as the Court of Appeal mistakenly held, on the innocent defendant.

SCC to Bay Street Boys: if we are going to hammer cops who screw up search warrants in the control of crime, we are going to hammer you if you screw up on coercive searches in the pursuit of commercial litigation.

I'd say this is a big, "What was the Court of Appeal thinking?" one. Thumbs up.

GMAC--Case Comment--Thumbs Up

Every collective bargaining law in Canada provides that employers who continue operating unionized businesses can be named "successor employers", and thereby inherit collective obligations to unionized employees, even if the new corporate vehicle for the business is technically or legally distinct from the original employer. Just because a sale of a business is arranged as an asset-purchase transaction rather than a share-purchase transaction should not deprive the employees of their statutory right to collective bargaining. These rules reflect the reality that labour relations in a Wagner-act system is not really purely contractual, and does not cohere well with ordinary corporate law concepts. But were it any other way, any employer could get out of its statutory obligations to engage with its certified union by rather simple corporate transactions.

The existence of a "successor employer" provision shows that the Wagner-act system of collective bargaining gives employees a right to a certain kind of represenation in the enterprise (which the Pithlord views as a real community), not in the corporation (which is just a legal fiction, albeit a convenient one).

Corporate insolvency also raises issues about the continuation of the collective agreement and of the rights of the certified union. In the Pithlord's view, the creditors have no right to interfere with the prospective relationship between the union and the enterprise, since their contractual relationship is with the corporation.

In GMAC, the Supremes (with one exception) all agreed that the Bankruptcy and Insolvency Act does not interfere with the jurisdiction of provincial labour boards to make successor employer designations, and tha there is nothing wrong with sticking bankruptcy trustees who run businesses upon coprorate insolvency with the obligations of a unionized employer. Although Parliament could restrict union rights in an insolvency, it has to do so in clear words.

This strokes the Pithlord's sweet spots, since I am both pro-union and pro-provincial jurisdiction. Anyway, it's the right decision. Thumbs up.

Case Comment of GMAC Commercial Credit Corporation - Canada v. T.C.T. Logistics Inc., 2006 SCC 35

The Literatus, Lebanon, Loyalty and the Law

The literatus writes (actually, wrote a week ago):

When it comes right down to war-gore imagery, I s'pose I could trot out the photo of the bombed Israeli bus from, oh, '99 or thereabouts; believe it was the seventh round of the intifada or so. The contorted, smeared and fractional human remains in that particular argument-ender appeared doubly macabre, because the roof of the bus had been vapourised, and the dead passengers could be seen all... leaning back, it seemed, from the detonation point near the steering wheel, as though the vehicle had suddenly, terrifically accelerated.

Can't remember where I saw this photo; seems to me it was a newspaper. But it may well have been the "rightist" equivalent of the dripping-red-letters website P&S linked to today; perhaps the percussively-repeated caption used was "Land for peace? Land for Peace?! LAND FOR PEACE??" Doesn't matter. Agitators and true believers somewhere deployed those dead civilians, holding the photo of their splattered end to as many pairs of eyes as possible. The aim: to win their war. Well, fair enough; part of the modern arsenal; it's not like images of flayed babies, halved shopkeepers and charred housewives are objectively worse than the events they capture, if you see what I mean. I disagree with those who say we shouldn't look at the real essence of war, on grounds of taste or discretion or respect, or whatever; everyone should look, everyone from every side, in every conflict, from now until the end of vision (which'll arrive before the end of war, mark me.)

The Israelis, in this case, should look at the gore and human wreckage in Lebanon, look hard at the dismembered babies, the dust-blasted, bloated faces of dead innocent grandmothers; and then they should refuel their fighter jets, man every tank, and keep attacking, attacking, attacking in south Lebanon and Gaza too, until every Hezbollah and Hamas man is dead, fled or captured, and every Qassam missile, packet of C4 and AK-47 is broken, buried and unreplaceable.

The literatus is right that pictures of mangled bodies prove nothing, and signify everything. They can mean, "We won't let this be done to us" or "We won't do this." And just wars look as ugly as unjust ones -- the death of a soldier in the Wehrmacht in open combat was the killing of some conscript mother's child. All true.

Before I get to the rational argument in response to "attacking, attacking, attacking ... until every Hezbollah and Hamas man is dead", though, we need to discuss what rationality means in these circumstances. And the literatus has something to say about that:

I don't want to get too political here, [P.], believe it or not; I'm looking to push you a bit on the dead-baby-photo linking --- as to who's "right" or "wrong" here, you know where I stand -- let me just quickly say, some brutality and vehemence in the right places, I believe, some * warnings,* the clarity of blood, may be our only hope of changing enough minds in Tehran, Damascus and Karachi to stop the clash o' civs that could otherwise develop. I know Riyadh and Cairo and Tripoli have got it, chum; I think I've got it; have you got it...? Or are you still relying on dialogue and understanding? I don't think this is the fuse leading to World-Wide-Web-War, Next Chapter, in other words; I think these attacks are stepping on that spark. Here's a thing you can't make an image of: the future lives, families and nations saved by prompt, ruthless, callous, warmaking.

As I said, the literatus wrote this a week ago, when it was still possible to imagine that "Riyadh" and "Cairo" could represent something important, before the entire Arab world -- Sunni, Shi'ite and even Christian -- made it clear which side their dictators had better be on.

The lesson here isn't that the literatus erred in his future-telling -- the Pithlord knows that having even an irregular blog puts too many hostages to fortune to get snooty about that. The lesson is that certain violence now for uncertain benefits of peace in the future is a trade too easily made. The best rhetoric for those who would sacrifice one generation for the one after it comes from Trotsky, particularly in Terrorism and Communism, written at the height of his power two decades before the ice pick.

The leaders of Israel, as with the rest of us, have no way of knowing what the indirect, ultimate consequences of this will be. But they are responsible for the direct, immediate ones.

But here's the thing, [name redacted], God, I have a heart. War is disgusting, on so many more levels than just a picture of a toddler with his spinal column ripped apart by shrapnel, grievous and repellent though that image -- that fact -- is, by itself. Whether it's by sword, artillery shell, suicide attack, tank battle, or atom bomb, war is the devourer of the souls of its victims and perpetrators, the eater of their humanity and individualism; war is the self-perpetuating system of weights that pulls us back down into the muck from which we so recently and partially ascended. It can't be done cleanly, simply, surgically or well, especially in the 21st century. Yeah: war sucks. It's important to hate it. These photos from Lebanon are the latest confirmation of this obvious fact. (What is the size of a hypothetical file, opened at the dawn of photography, that contains all images of all those killed in war? That's a long download, bud.)

Here's a thing that's worse than war, though: pretending it doesn't exist. Closing your eyes and hoping it goes away. Getting on your knees and presenting your throat to be cut. Surrendering your self, your family and your nation to this world's armies of evil, because you can't bear the thought of graveyards filling with the innocents who will die if you retaliate with strength. The only thing more sickening than war, I mean, is pacifism; is meekness and squeamishness; is the infantile, finger-crossing hope that good men will never need recourse to arms; [...]

Sure, some pacifists are undoubtedly meek and squeamish. But the idea as such doesn't strike me that way. A real pacifist is inhumanly ruthless -- prepared to tell parents who have seen their daughters raped that they cannot strike back, prepared to suppress every human emotion of justice and revenge. Quite possibly, they are right -- that nothing in either past or future justifies this present killing.

I can't join the pacifists, though. I suspect real pacifism requires the belief in a pretty bloody and activist God, and I'm not ready for such a fellow. What I do believe in, though, is what the literatus attacks next:

[...]is the even- more babyish notion that war might be conducted in such a way that only soldiers die. (War does not operate that way; never has; and it may be that the men who drafted the Geneva Convention could not conceive of an Islamist enemy who'd make the Nazis look like gentlemen. What's the deal with the Geneva idealists, anyway...? Seems like they could not possibly have been soldiers.)

As per your blog, though, G., I guess what I want to say is that lining up that website full of ghastliness, as though in itself it proved, supported or substantiated your position about "the rape of Lebanon," seems a bit, ah, histrionic, or undignified: it's beneath you. I hasten to reiterate, let's not ban such photos; they do serve a moral purpose. But in this context, we have a disagreement, clearly, should I just respond with .jpegs of the eight IDF corpses the Party of God's unexpected sortie left behind (God -- just last week) or show you the agony on the smashed faces at Haifa railway station? What would be the fucking point? You start swapping pictures of the Horrors The Other Side Has Visited Upon Our Side, you wind up quickly in a corner with the retarded fanatics whose "thinking" on the situation is, basically, just an ever-escalating exchange of exclamation marks ("!" "!!" "Oh yeah? !!!!") That's all war-dead images are, really. They can leave you reeling, Lord knows; but they cannot help nor pardon...

I'm just sick, I guess, of the "well, what about this" moral-equivalency approach to the fearsome puzzle of the Middle East, and its jihadi dimension. Sick of elaborate "root-causes" chatter that goes on and on, till it disappears up its own nuanced, sophisticated asshole, being too cosmopolitan for proximate causes like act-of-war Hamas/Hezbollah attacks on Israeli soil.

I'm not a pacifist, but I am a believer in chatter. Law is just the principle that force must be justified by chatter. (That definition doesn't require a sovereign, so it allows for international law.) Since we don't actually have the activist and bloody-minded God, we can't do without human-applied force. But we can't trust that force, we can't hope for the day when that force ends the endless talk about consociational cabinets, buffer zones and verification procedures. It's really that desire to end the chatter that I distrust. It's really the hope to subordinate the use of force to procedure that I look to.

Ironically, the Bush administration has been using the "root causes" phrase to justify the Israeli attack (the "root cause" being Hezbollah's being armed). That isn't totally mistaken, but once we start talking about root causes, we have to be willing to listen to other versions of what those causes might be. When Israel invaded Lebanon the first time, Hezbollah was nothing -- neither a significant representative of the Lebanese Shi'ites nor a serious military force. Hamas was initially encouraged by Israeli intelligence as a counter to the PLO. Not that that means that Hezbollah or Hamas are Israel's fault. The Arab world has to take responsibility for its own lack of political maturity, for messing its own bed. But how can we be confident about the consequences of this action?

I claim no originality in the observation that everything the US (and now Israel) have done in the last four years has increased the influence of Iran and Hezbollah.

"Everybody in Southern Lebanon is a Terrorist"

So says Haim Ramon, Israeli Minister of Justice:

"All those now in South Lebanon are terrorists who are related in some way to Hezbollah."

Terrorist infants, terrorist elderly women, already mutilated terrorists have therefore all been warned. Every village south of the Litani is to be flattened.

Those "terrorists" leaving Southern Lebanon should not imagine that they are thereby immune, since civilian vehicles leaving the area are being targeted by the IDF as well.

He claims, and there is much truth to it, that the Great Powers gave the green light to this in their Rome Conference on Wednesday by not calling for an immediate ceasefire.

The world, very much including our own Prime Minister -- who won't even demand an explanation for the dath of Canadian soldiers -- have blessed this destruction of a tiny, defenceless country.

(Hat Tip to the Tory Anarchist)

Bush Administration Response to Hamdan

It looks like the Bush administration has decided to urge Congress to repudiate America's treaty commitments, as determined by America's highest court.

Andrew Sullivan misunderstands the importance of this:

What the administration thinks, of course, is irrelevant. The court has ruled that Article 3 applies.

Unfortunately, while that is true as a matter of international law (the US will continue to be bound by Article 3 and will therefore be violating its international obligations when it violates Article 3), it is not true as a matter of domestic law (if Congress authorizes the violation of a treaty, no court will enforce the treaty.

Not a Dime's Worth of Difference Between 'Em

That's what Eugene Debs used to say about the Democrats and Republicans. Of course, it was objectively true then and is BS now. But you have to wonder when the Democrats in Congress are trying to prevent Maliki from speaking because he offered up critical words of Israel's attack on Lebanon.

Alternatives

I'm not a pacifist. There would have been nothing wrong with Israel reacting to the killing and capturing of its soldiers with a limited reprisal of similar magnitude. Bombing Beirut and turning a large fraction of the people of Lebanon into homeless refugees is different. As Engels remarked, at a certain point quantity becomes quality, and "reprisal" becomes aggression.

I don't really think these concepts are that hard to grasp, and I have no doubt that they would be applied with ease to wars between Ethiopia and its neighbours (if the world were to bestir itself enough to pay the least attention to Africa). The response, in my experience is always to list Hezbollah's bad actions in the past, point out that they have a medieval ideology and question their presence as an accepted part of Lebanese politics.

Hezbollah is the main representative of the Shi'ite Muslim population in Lebanon. Its only rival in that respect, Amal, is supportive of its war with Israel. The US and Canada's response is based on false analogies to the Cold War and the thirties. Our elites tend to think in terms of ideological, rather than ethnic/territorial, conflict. In an ideological conflict, you can envision total victory without the annihilation of the other side. The West had no conflict with the members of the Warsaw Pact that could not be resolved by their ceasing to be Communist. (At least, we used to think so -- in reality, there are probably continuing issues with Russia that go back to the Tsars and will outlast Putin.)

But it is just a category error to think that way about the Middle East. Unless they are physically massacred, Palestinians and Shi'ites are always going to be around, and they are always going to have interests that conflict with others. They might choose more moderate leaders, but only if it looks like their ethnic interests can be better advanced peacefully. Democracy isn't going to help. Liberalism isn't going to be possible unless the underlying issues are made more tractable. So waving the bloody shirt of 1938 is just making matters worse.

A useful analogy might be Fianna Fail or, more recently, Sinn Fenn or for that matter, the Likud Party. All had a terrorist phase. All now participate in democratic Parliaments. The world deals with this. It also deals with former Communists in democratic coalitions in Eastern Europe, "post-fascists" in the Berlusconi coalition in Italy, ex-FLQ sympathisers in the Governor General's mansion in Ottawa and many more examples. It is, frankly, pretty hard to have a new democracy without involving politicians who were either terrorist insurgents or part of the authoritarian power structure in their previous lives. It would certainly be impossible in Lebanon. Asking Lebanon to exclude Hezbollah from its governing structures is really asking is for Lebanon never to have a stable government, which is asking too much.

Israel has a clear and legitimate interest in getting Hezbollah to stop being terrorist, preferably permanently.

Here I have to agree wholeheartedly. The problem is that the political organization a majority of Lebanese Shi'ites think will best defend their interests engages in terrorist acts and has a program of medieval repression. What we should want is that either (a) all but a few Lebanese Shi'ites abandon Hezbollah as the vehicle of their political representation or (b) that Hezbollah become like Fianna Fail.

How can this be done? Well, the key is to recognize that all terrorists want to be respected elder statespersons in their old age. They want to be invited to the right parties, hob nob with movie stars and do "consulting" work for Google. That's why God invented the House of Lords - to put past firebrand radicals in it.

Now we can't make them stop being terrorists by giving them everything they want -- they will conclude that the way to get what they want is to be terrorists. When they act badly, they ought to experience some pain. But when they become more bourgeois, they get treated as more respectable. Some true militants may not follow the lure of the tempter here, but they will probably be isolated and quietly bumped off to no one's great dismay.

Alternatively, the organization as a whole tries to stay pure, but loses its base of support to more mundane politicians who find out ways to get patronage and material benefits to their constituents. If it doesn't move, pave it; if it does, pension it.

All of this will happen if the dynamic is one of mutual backscratching and gains from trade. The opposite happens when a polarizing dynamic gets going. Then extremists feed off each other, and it is the moderates who end up getting bumped off. Each outrage has to be bigger than the last. Extremists on each side are objectively aligned with each other, and assist in ensuring that the backscratching and House of Lords appointments never really get on the road.

Did Israel have options? Sure. It could have put diplomatic pressure on the Lebanese government to put pressure on Hezbollah. Do we know this would have worked? No. Do all diplomatic moves depend ultimately on a willingness to use force? Yes. But we don't know because Israel didn't try.

The probable explanation is the internal politics of Israel. Ha'aretz reports that the cabinet (which, for Israel, is unusually dominated by people with no military experience) didn't ask any real questions of their military advisors, who simply dusted off an old plan for the invasion of Lebanon. Kadima clearly faces pressure from its right. So what we end up with is a disproportionate response.

I don't deny that Israel has its own security needs, and these have to be respected. But it has (a) nuclear weapons; (b) the backing of the world's foremost superpower; (c) control of the overwhelming majority of the territory of Mandate Palestine and (d) an advanced technological economy and military. Lebanon, on the other hand, is a fractured country just trying to rebuild itself after three decades of civil war and foreign occupation. The balance shifts to Lebanon's security needs, which, of course, have been trampled underfoot.

What about our own politicians? What should they do? They should shut up, get Canadian nationals out, and quietly let it be known that they are available to mediate should the parties want them to. What they should not do is treat ethnic conflict like ideological conflict, since that is the road to permanent war and possibly genocide.

Ferras -- Case Comment -- Thumbs Up

If a criminal trial is the supreme expression of distrust in our own state, the extradition hearing is all about ambivalence about our neighbours. We aren't supposed to enter into extradition treaties with states that don't give fair trials. At the same time, we do require a judge to give some scrutiny to the charges and the evidence for them before we let someone lawfully here face another legal system. Even after the judge has passed on the matter, the Feds retain some executive discretion, which is subject to the constitutional requirement that extradition not be permitted if the punishment in the receiving state would shock the Canadian conscience.

In short, there are some tricky questions in extradition, since we are simultaneously acknowledging the rights of other countries to punish for crimes committed by people now within our borders, but putting some limits on that right.

On Friday, the SCC released a major decision about the constitutional requirements of extradition hearings, along with separate brief reasons in a companion set of appeals.

The case goes under the name Ferras, although there were a number of other alleged miscreants in each of the two sets of appeals. Ferras allegedly ran a "boiler room" scam. Leroy "Scabby" Latty and Lynval "Frankie" Wright helped cement the unity of the Anglosphere by co-ordinating the transportation of coke between London and New York by American Airline stewardesses out of an operation in Toronto.

Section 7 of the Charter guarantees the application of "the principles of fundamental justice" to any deprivation of "life, liberty and security of the person." There is no doubt that this includes extradition. The principles of fundamental justice give the courts abundant wiggle room to ensure that procedures are up to snuff. (What they don't do -- properly and historically understood -- is give the courts the right to interfere in substantive policy choices as in Chaoulli.)

The McLachlin Court uses this leeway as follows:

a. To override a strange 1970s-era decision that prevented the extradition hearing judge from providing any scrutiny to the "evidence" provided in favour of guilt. Now, the judge is to decide whether the evidence is enough that a properly instructed Canadian jury could convict on the parallel offence in Canada.

b. To require the foreign governments to certify that the evidence used to justify extradition is available for the trial in the receiving country.

At the same time, they upheld the use of hearsay, kept the threshold for sufficiency of evidence low and ridiculed the idea that foreign governments have to give the 2-for-1 recognition of pre-trial custody Canadian courts do.

I see Ferras as representing the style of the McLachlin court at its best: very pragmatic and open to discussion of the underlying policy tensions. There are some problems with this style - it may encourage excessive innovation in the law and too much abstract law clerky discussion. I was a bit troubled by the fact that the case hardly comes to grip with the facts at all until a few paragraphs near the end. That isn't my understanding of how common law jurisprudence is supposed to work. (More on this later.)

But the middle-of-the-road policy-laden approach seems appropriate for constitutionality of extradition procedures, and I think the resulting compromise is sensible enough, so I'm going to give the coveted Pith & Substance Thumbs Up.

Case Comment ofUnited States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 and United Mexican States v. Ortega;United States of America v. Fiessel, 2006 SCC 34

Can "Artificial" Countries Be Successful Ones? Bad Empirical News for Canadian Patriots

Examining empirical evidence that contradicts your biases is good for the soul, if not the blood pressure. As a proud Canadian (but one who recognizes the justice of Lucien Bouchard's complaint that we are not a "real" country), I have always had a soft spot for "artificial" multi-ethnic states. Via the New York Times, though, I was confronted by a study by Alberto Alesina, William Easterley and Janina Matuszeski that purports to measure how artificial (i.e., not conforming to historic ethnic boundaries) a state is, and then shows that artificiality correlates with all kinds of bad stuff. Partitionists everywhere will be interested particularly in the result that more "natural" states recover better from war.

Search Law and Democracy-Reinforcement

Like publius, I've always been interested in process-based theories of constitutional law (as represented by our mutual hero John Hart Ely).

Many people complain that process theories ignore the substantive values protected by a constitution - liberty, property, privacy, substantive equality. Others point out that in judicial review as it is actually practiced, the courts eventually get around to a cost-benefit analysis of some kind, anyway, so why not just admit that up front?

Search law might seem like good terrain for the critics. The cases revolve around two substantive values - crime control and privacy. And the courts tend to make cost-benefit judgments: language about exigency, necessity and seriousness of the intrusion is everywhere. That sounds a lot like lawyer talk for deciding whether the costs to the state of a rule outweigh the benefits to the individual or vice versa.

But looking up the leading Canadian search cases for work, I was struck by how well they fit in a legal process framework.

The first principle is that the courts require specific legislative authorization of whatever search is at issue. Under s. 8, "not authorized by law" necessarily means "unreasonable." With minor exceptions, the law that authorizes the search has to be legislatively enacted. This has the "democracy forcing" quality of requiring legislative approval (which, in Canada, effectively just means requiring the executive to act relatively openly - in the US, it would have the further effect of requiring the collaboration of independent politicians).

In Hunter, the SCC insisted that laws authorizing searches should normally include a requirement for "prior judicial authorization" to show reasonable and probable grounds to believe that an offence had taken place. This proved to be unworkable. A health inspection of a restaurant is a search, as is a municipal building inspection - few outside the libertarian fringe seriously want to require that these occur only with a warrant. The tendency of the courts was to make a distinction between criminal law searches and "mere" regulatory ones. This was misguided. The purpose of section 8 (as opposed to one of the costs of it) is not to get criminals off, but to protect privacy. My privacy is just as affected if a by-law enforcement officer ransacks my house as if a cop does. If anything, more serious offences justify greater intrusions. In the event, the court was faced with the problem of random drunk-driving stops. These are clearly criminal, but the court could hardly strike them down.

The better distinction would have been between searches imposed on everyone equally (or tacitly consented to in the case of a regulated business), as opposed to discretionary searches. If the public as a whole is willing to have random spot checks of drivers, then there is no reason for the court to interfere. The same people suffering the burden on their privacy chose the restriction. On the other hand, searches imposed on teenage boys (and, most frequently, black and native boys) are imposed by a different group than those who have to put up with them. It doesn't necessarily mean they are unjustified, but it calls for greater scrutiny and procedural road blocks and so on.

If search law is all Ely-ian (or would make more sense if it were), then that should be counted for the team.

What is Harper's Job re: Lebanon?

It ought to be to protect the lives of Canadian nationals. If he could avoid fuelling dangerous "war of civilization" fantasies, that would be a bonus.

Here is a website with horrific pictures of the rape of Lebanon. You can sign an online petition for all the good it will do. Better for Canadians to write their MPs. The Tories should be brought down on this. Quebec might vote for lower federal taxes, but I have faith it will never vote for this.

Do Democracies Have a Special External Moral Licence?

It is often assumed that democracies should be judged differently in their external actions than non-democracies, but I have yet to see an actual argument why that is so.

The Persian Wars don't help -- frankly, I don’t think "fear society" and "free society" is a useful division in antiquity (the Hebrew Scriptures seem pretty clear that the Persians were a lot better than the Greeks in respecting Jewish religious liberties), but what could be more of a "fear society" than Sparta? Sparta and Athens ally against the Persians basically out of the same motivation that the Sunni Muslim Brotherhood and liberal Arabs have for cheering Hezbollah -- ethnic solidarity against a foreigner they perceive as bent on ruling over them.

Thucydides is pretty darn clear that Athens, however internally democratic, was brutal with its allies. The Melian Dialogue in Book 5 of the Peloponnesian War, however unlikely as a record of actual speeches, shows what Athens was capable of.

In more modern times, there have been plenty of peoples who are internally liberal, but brutal -- even genocidal -- to those they exploit. Belgium in the Congo, the British in Tasmania or Ireland, America in the Philippines.

It is a huge mistake to interpret a fundamentally ethnic conflict about land -- blood and soil -- as an ideological conflict about systems of government. Israel, sensibly enough, does not want to see a democracy in Jordan or Egypt. A more democratic Turkey has been a huge complication in its relations with its former close ally, as of course was the overthrow of the Shah. And I believe there was a relatively free election in the Occupied Territories recently -- does anyone remember what happened there?

Anyway, Lebanon is a democratic -- if disordered -- state. The IDF is flattening whole villages, destroying civilian infrastructure well outside territory controlled by Hezbollah, and basically treating the Lebanese population as a whole as enemies, as the reaction of traditionally pro-Israel Maronites shows.

You be the judge

In response to Ross Douthat's interesting comments on the argument de chickenhawk, I get into a less interesting argument with a fellow called "J. Bradford Short". At one point, he says I'm "self-righteous", which hurts a bit since I'm going for more the smug and condescending vibe. Anyway, comments addressing my insecurity are welcome: do I look self-righteous?

A Self-Promotional Update You Have No Reason to Care About: Figuring out that the ludicrous "Kantian nihilist" construction in Chris Muir's Doonesbury-in-its-senility-for-righties-with-T&A is evidence of Randroidery -- Pithlord! And I wasn't ever even slightly Randian, one of the few points of pride I can have in my adolscent political development.

Where he got the idea that Kant was a "moral relativist" is beyond me. Surely, if you have even heard of Kant, you have heard of the "categorical imperative." Even if you don't know what that means, it doesn't really sound "relativist", does it?

Actually, though, I think there is something illustrative here. For the jingoist right, a "relativist" is one who thinks there are absolute moral standards which apply both to our team and the enemy! In other words, to them it means exactly the opposite of what it means.

Grant and Strauss: Some uninformed thoughts

Yes, yes, I know, but I like this comment from the prolific John Emerson too much not to do something with it:

At a certain point in the Italian civil wars the Guelphs and the Ghibellines had split and switched enough times that it was hard to tell who was who any more.

A lot of us left-liberal democrats here in Bushworld are actually wondering whether it's true that democracy is no damn good -- our elected President is an adventurist, Know-nothing, populist demagogue who uses the Revelation of John as a handbook for predicting the future.

But when we decide to surrender and submit ourselves to re-education, we find that our former Straussian friends are all errand-boys for Dubya now.

Another plug for George Grant -- he never became an errand-boy for Dubya!

I'm afraid I don't know the full story of Grant's relationship with the Straussians, a tale I would be delighted if someone would tell. He was obviously influenced by Strauss's writings on Xenephon's Hiero, and, generally, by the attention to classical political philosophy and the loss of the question of how the state might promote virtue.

Accroding to Grant, Strauss and the Straussians cast their lot with America -- based as it was on the British Enlightenments's narrow and egotistic view of human nature -- over the Soviet bloc -- based on the historicized eschatology of Rousseau, Hegel and Marx -- without fully rejecting Heidegger's equivalence of the two. Strauss thought that the American way left some room for philosophizing. Grant was more Heideggerian in this respect, although he rejected Heidegger's account of Plato and Christianity.

Grant interpreted Strauss as recognizing that the idea of America contained the seeds of a universal, homogenous tyranny which would make philosophy and genuine religion impossible. It is certainly interesting that the Straussians (with the exception of Fukuyama) seem now to be the ones most militant in promoting a global liberal-democratic-capitalist framework. Perhaps they think that lots of war will bring back pre-bourgeois virtues.

Another for the Book Pile: A. Barak on Judging

Even though we are skeptical of judicial power here at Pith & Substance, we admire brave and wise uses of it. For this reason, I've long considered Aharon Barak, the recently departed President of Israel's Supreme Court a judicial hero. There's no doubt that his work and thought intersect closely with our various themes here at P&S - judicial power, thick identity in a liberal nation state, the difficulties of the virtue of the rule of law in a polity threatened by terrorism -- all of these questions have had to be addressed at a practical level by the Israeli judiciary in circumstances of a genuine existential threat.

Without purporting to be an expert, I understand that Israel's court has been influenced by Canadian approaches to the Charter. I suspect that the influence is going to be the other direction as our courts have to grapple increasingly with national security issues we have been fortunate enough to be able to ignore for the most part in the past.

So I'm going to have to read Barak's new book, The Judge in a Democracy. Of course, I have some other reading I have to do in a more practical sense, so it might be a while, but when I get to it, I promise at least one P&S post.

(Via Larry Solum's new site)

How to stop a regional conflagration by The New Republic

When I was a child blogger, my pappy told me, "Never become one of those what just links to other folkses sites and says 'Read the whole thing' or 'Indeed' or, most distressin' of all, 'Heh' 'cause I don't wants to know ya if ya do." Rather, I think that's what he said, although he can be a bit incoherent after the third bottle of merlot.

So it as some risk of filial impiety that I point you to Brad Delong's pointing to the New Republic Online's headline for a piece by Michael B. Oren:

To prevent a regional conflagration, Israel should attack Syria

As Professor Delong remarks, "Teh funny."

Indeed.
Heh.
Read the whole thing.

Update: Matthew Shugart points out in the comments that even the Israeli left supports a limited reprisal against military targets in Syria as a more proportionate response to Hezbollah's abduction of the soldiers. That seems like a reasonable approach if, as seems likely, Syria is behind Hezbollah's actions. I have to admit to a blogging sin in that I didn't read the Oren article, but just the DeLong post, and if that is what Oren is proposing, then I apologize.

Update 2: Well, I read the piece and I shoulda listened to my pappy. Oren proposes taking out a 500 tank armoured unit in Syria. Whether this is feasible and sensible is beyond even my Internet-rules expertise to say, but it obviously does not deserve the snark DeLong and then the Pithlord engaged in. I'll leave this post up as a lesson in not following through on the links.

Update2: Here is Michael Walzer on what Israel can and can't do within the scope of just war theory.

Instapundit: Lebanese Like Being Bombed

The Pithlord is old enough to remember much hoopla in the blogosphere about the Lebanese Cedar Revolution of 2005. Crowds peacefully protesting the assassination of their Prime Minister, an event everyone thought Syria was responsible for, led to genuine national independence for that troubled country.

The hoopla was understandable, although in Glenn Reynolds hands, a bit embarrassing (the Pithlord has nothing against geeky adolescent male autosexuality, but he thinks it should be kept under the mattresses of the funky-smelling bedrooms of the nation and not confused with political analysis).

But what happens now that post-Cedar Revolution Lebanon is attacked. What are the knights boldly standing for the right of hot Lebanese women to party without foreign occupation saying nowadays?

Saith the Instapundit:

After the excitement of the Cedar Revolution, this is depressing, of course. But it's interesting to see that many Lebanese are angry at Hezbollah, and of course getting Syrian influence out of Lebanon was one of the main points of the Cedar Revolution, and something that was only partially accomplished. The Israelis may finish what the Lebanese started, and that would be a good thing.

In short, the Lebanese like having their airports bombed. It furthers the Revolution.

The Pithlord noticed that no actual Lebanese were quoted, of course. And it does seem out of keeping with what we know of human nature, although we all recall how New Yorkers reacted to 9/11 with delight because it might finish the struggle against the Republican Party.

But what I really wonder about is when all the gun-nut "libertarian" techno-nationalists started sounding like commies? The "Revolution" as an abstract noun, the interests of the people furthered by repressing said people, the unfolding of human history as justification for squalid massacres... where have we seen this movie before?

Update July 16, 2006: It appears that actual Lebanese, some of whom write Enlgish and have blogs, did not comply with Instapundit's rich fantasy life, and instead complained about the attack on their country and America's complicity. The response from the rightie bloggers was, of course, to tell Lebanese refugees that they are "weak" and "need to grow up."

After 9/11, Americans would have better off admitting to themselves that they were feeling tribal bloodlust, and wanted to punish Arabs for what Arabs had done to them. That's human enough. I really believe Americans would be too civilized to act on this impulse if they had been willing to recognize it. But to pretend that what they wanted was to bring democracy to the Arab world, to "liberate" -- that was folly. And it was folly for those like Makiya who believed it.

Decline of the WASP?

Via Political Theory Daily, here is a paper by Eric Kaufmann on the "decline" of WASP ascendancy in the US and Canada.

I think Kaufmann gives to little attention to the view that the dominant ethnicity in both countries just extended its self-definition over time (continuously with earlier processes by which Huegenots became English or Dutch became "old Americans").

Also, I'd like more on the actual current "vertical mosaic". The US is far less WASPy than English Canada, but Kennedy remains the only non-WASP in the oval office. The names of 2008, with the exception of Giuliani, could come from the Continental Congress -- Rodham Clinton, Clark, Gore, McCain, Romney, Allen, Bush. Pretty good representation from an eighth of the population. Some decline.