DEL DERECHO A LA POLÍTICA

Desde hace tiempos, el derecho y la política se tocan con el tópico del ejercicio profesional y la realidad de la desigualdad social y económica de los reos y procesados. Aquí está el caso de un abogado defensor de causas penales, y sus revelaciones que compartimos, ahora que en Colombia, la reforma a la justicia está patas arriba, y con un rumbo que solo favorece a la elite militar y judicial. A la vez que se produce el choque de poderes que se disputan las parcelas del gobierno sobre los muchos. N de la R.

Newly unearthed documents shed light on claims that the famous criminal attorney bribed a juror

• By John A. Farrell
• Smithsonian magazine, December 2011

Read more: http://www.smithsonianmag.com/history-archaeology/Clarence-Darrow-Jury-Tamperer.html

On a rainy night in Los Angeles in December 1911, Clarence Darrow arrived at the apartment of his mistress, Mary Field. They sat at the kitchen table, beneath a bare overhead light, and she watched with dismay as he pulled a bottle of whiskey from one pocket of his overcoat and a handgun from the other.

“I’m going to kill myself,” he told her. “They’re going to indict me for bribing the McNamara jury. I can’t stand the disgrace.”

The great attorney had come to Los Angeles from Chicago to defend James and John McNamara, brothers and unionists accused of conspiring to bomb the Los Angeles Times, the city’s anti-union newspaper, killing 20 printers and newsmen. But jury selection had not gone well, and Darrow feared the brothers would hang.

One morning a few weeks earlier, Darrow had taken an early streetcar to his office in the Higgins Building, the new ten-story Beaux-Arts structure at the corner of Second and Main Streets. At around 9 a.m. the telephone rang. Darrow spoke briefly to the caller. Then he picked up his hat and left the building, heading south on the sidewalk along Main.

Meanwhile, his chief investigator, a former sheriff’s deputy named Bert Franklin, was two blocks away, passing $4,000 to a prospective member of the McNamara jury who had agreed to vote not guilty.

Franklin, in turn, was under police surveillance: The juror had reported the offer to the authorities, who had set up a sting. Franklin now sensed that he was being watched and headed up Third Street to Main. There he was arrested—just as Darrow joined him.

Franklin became a witness for the state, and in January 1912, Darrow was arrested and charged with two counts of bribery.

With the help of another legendary trial lawyer, California’s Earl Rogers, Darrow was acquitted in one trial, and the other ended with a hung jury. He returned to Chicago broke and disgraced, but he picked up the pieces of his career and became an American folk hero—champion of personal liberty, defender of the underdog, foe of capital punishment and crusader for intellectual freedom.

Darrow’s ordeal in Los Angeles 100 years ago was eclipsed by his later fame. But for a biographer the question is insistent: Did America’s greatest defense attorney commit a felony and join in a conspiracy to bribe the McNamara jurors? In writing a new account of Darrow’s life, with the help of fresh evidence, I concluded that he almost certainly did.

The Los Angeles Law Library is on Broadway, across the street from the lot, now empty, where the bombing destroyed the Los Angeles Times building. The library holds the 10,000-page stenographic record of Darrow’s first bribery trial. It is a moving experience to page through the testimony so close to where the carnage took place.

The McNamaras’ trial was cut short after six weeks when Darrow secured a plea agreement that would spare their lives. James McNamara pleaded guilty to murder in the Times bombing and was sentenced to life in prison; his brother pleaded guilty to a different bombing and was sentenced to 15 years. The agreement was still being finalized when Darrow’s investigator, Franklin, was arrested on the street for bribery.

Darrow’s own trial was a legal hellzapoppin’. Rogers was skilled at baiting prosecutors and distracting juries with caustic asides and courtroom antics. (At one point he wrestled with the furious district attorney, who was preparing to throw a glass inkwell at the defense team.) Truth be told, the prosecution had a weak case. Aside from Franklin’s testimony, and Darrow’s presence at the scene on Main Street that morning, there was little corroborating evidence tying the attorney to the crime of bribery.

And, in an astounding exchange, Rogers got Franklin to concede that prosecutors had promised him immunity; he had had his fines paid; and he had met covertly with California’s notoriously venal robber barons, who promised to reward him if he testified against Darrow. With eloquent closing arguments, Rogers and Darrow persuaded the jury that Darrow was in fact the victim—a target of rapacious capital, out to subdue labor.

Darrow’s early biographers—the novelist Irving Stone (Clarence Darrow for the Defense, 1941) and Chicago’s Arthur and Lila Weinberg (Clarence Darrow: A Sentimental Rebel, 1980)—concluded their hero was most likely innocent. Geoffrey Cowan, an attorney and scholar who examined the first bribery trial in minute detail in his 1993 book, The People v. Clarence Darrow, reached a different verdict. Cowan weighed the number of Darrow’s contemporaries—friends, acquaintances and journalists who covered the trial—who believed he was guilty of arranging the bribe. They forgave Darrow, for the most part, because they shared his conviction that the vast power and wealth arrayed against labor unions, and the often violent and illegal tactics of corporations, justified such an extreme measure to spare the defendants.

“What do I care if he is guilty as hell; what if his friends and attorneys turn away ashamed of him?” the great muckraker Lincoln Steffens wrote of his friend in a letter.

Neither Cowan nor I found evidence of a conspiracy to frame Darrow in the files of the U.S. Justice Department, or in the papers of Walter Drew, the steel industry’s union-busting lobbyist, who had led and helped fund the case against the McNamaras.

To write my story of Darrow’s life, I tapped university and courtroom archives at more than 80 institutions. Perhaps the most intriguing new evidence I found was in Mary Field’s diary.

In researching their biography, the Weinbergs persuaded Field’s daughter to share segments of her mother’s papers, which included selections from her diary and correspondence from Darrow. The material offers a unique glimpse into the man: To Mary Field he poured out his feelings in evocative letters. Long after their affair ended, they remained loving friends.

Field’s diaries are now at the University of Oregon, where I spent a week going through them page by page. Aside from Darrow’s wife, Ruby, no one was closer to him during his ordeal in Los Angeles. Field, a bold young journalist, was Darrow’s lover, friend, legal assistant, press agent and investigator. She never wavered, in private or public, from insisting he was innocent.

But in a 1934 diary notation I found this passage:
Read life of Earl Rogers and revive memories of 23 years ago—memories more vivid than those of a year ago. Memories burned in with red hot rods. Days when I walked through Gethsemane with Darrow, crushed and weighted with the desertion of friends, with betrayal, with the impending doom of jail...bribing a juror to save a man’s life...who knows if he did? But he wouldn’t hesitate anyway. If men are so cruel as to break other men’s necks, so greedy as to be restrained only by money, then a sensitive man must bribe to save.

It is not conclusive. But I believe that it adds Mary to the list of Darrow intimates who suspected their hero was guilty.

I uncovered another incriminating detail in one of Darrow’s long-lost letters. Irving Stone purchased the lawyer’s papers from his widow, and they were eventually donated to the Library of Congress. But not all the material in Darrow’s files made it to Washington, D.C. Hundreds of his private letters, unearthed by a collector named Randall Tietjen (many in a box marked “Christmas ornaments” in the basement of Darrow’s granddaughter), were made available to scholars by the University of Minnesota Law School Library in 2010 and 2011. And there I found a 1927 letter from Darrow to his son, Paul, instructing him to pay $4,500 to Fred Golding, a juror in the first bribery trial.

I was stunned.

Darrow was a generous soul. And it certainly is possible that Golding had fallen on hard times and asked for help, and that Darrow responded out of the goodness of his heart. But $4,500 was serious money in 1927—more than $55,000 today—and it’s difficult to imagine that Darrow would be that generous in response to a hard-luck story.

And it should be noted that Golding was Darrow’s most outspoken defender on the jury. Golding took the lead in quizzing prosecution witnesses from the jury box, which was permitted in California. He openly suggested that the case was a frame-up orchestrated by California’s business interests as part of their infamous scheme (immortalized in the film Chinatown) to steal water from the Owens Valley and ship it to Los Angeles.

To be sure, Golding may have been a harmless conspiracy theorist, and Darrow may indeed have conceived of paying him only after the trial.

But the question demands an answer: Did Darrow bribe a juror while on trial for bribing jurors? If so, what does that say about his willingness to join in the McNamara bribery plot?

“Do not the rich and powerful bribe juries, intimidate and coerce judges as well as juries?” Darrow once asked an associate. “Do they shrink from any weapon?”

Finally, there’s a telegram Darrow sent.

It was the philanthropist Leo Cherne who acquired Darrow’s papers from Stone and donated them to the Library of Congress. But in a collection of Cherne’s papers in the Boston University archives, there are several files of Darrow letters, telegrams and other sensitive documents that did not travel with the rest to Washington. Much of the correspondence in the Cherne collection is from the winter of 1911-12. The most intriguing item is a telegram Darrow sent to his older brother Everett the day he was indicted. “Can’t make myself feel guilty,” Darrow wrote. “My conscience refuses to reproach me.”

He doesn’t say he is innocent—only that his conscience is clear. That was an important distinction for Darrow, for whom motive was the overriding question in defining an evil, a sin or a crime.

Darrow’s great patron was Illinois Gov. John Altgeld, whom Darrow said admiringly was “absolutely honest in his ends and equally as unscrupulous in the means he used to attain them.” Altgeld “would do whatever would serve his purpose when he was right. He’d use all the tools of the other side—stop at nothing,” he said. “There never was a time that I did not love and follow him.”

In both his trials Darrow pleaded not guilty, took the stand, swore an oath and testified that Franklin’s testimony against him was a lie. But in the telegram to his brother and other correspondence to family and friends, Darrow distinguishes between legal and moral guilt. “Do not be surprised at any thing you hear,” Darrow warned his son, in a note newly unearthed from the Minnesota files. But, he told Paul, “my mind and conscience are at ease.”

Indeed, in his second trial, Darrow virtually dared the jury to convict him, making arguments that seemed to justify the McNamaras’ terrorist attack. Jim McNamara placed the bomb in the Times building, Darrow told the jury, because “he had seen those men who were building these skyscrapers, going up five, seven, eight, ten stories in the air, catching red hot bolts, walking narrow beams, handling heavy loads, growing dizzy and dropping to the earth, and their comrades pick up a bundle of rags and flesh and bones and blood and take it home to a mother or a wife.” Darrow went on,“He had seen their flesh and blood ground into money for the rich. He had seen the little children working in factories and the mills; he had seen death in every form coming from the oppression of the strong and the powerful; and he struck out blindly in the dark to do what he thought would help....I shall always be thankful that I had the courage” to represent him.

After hearing that, the jurors told reporters, they were convinced that Darrow would surely resort to bribery, and other illegal acts, to defend or advance his beliefs and clients.

How should we judge Darrow?

He left Los Angeles in 1913 a changed man. “The cynic is humbled,” his friend Steffens wrote. “The man that laughed sees and is frightened, not at prison bars, but at his own soul.”

After he returned to Chicago, he rebuilt his practice and his reputation by taking cases that other lawyers would not touch. Mentally ill men accused of heinous crimes. Black men charged with raping white women. Communists and anarchists snared in the reactionary fervor of the Red Scare. He defended Frank Lloyd Wright when federal prosecutors hounded the architect for violating the Mann Act, which made it a crime to transport women across state lines for “immoral purposes.” He saved the killers Nathan Leopold and Richard Loeb from the gallows. Most famously, he scored a triumph for academic freedom after John Scopes was accused of violating a Tennessee law that prohibited the teaching of evolution.

“The marks of battle are all over his face,” the journalist H.L. Mencken wrote. “He has been through more wars than a whole regiment of Pershings....Has he always won? Actually, no. His cause seems lost among us.

“Imbecilities, you say, live on? They do,” wrote Mencken. “But they are not as safe as they used to be.”

A biographer must assess a subject’s good and bad—all the black, white and grays of character. And it was Darrow’s actions in another case, largely neglected by previous biographers, that finally put me, firmly, on his side.

In 1925, in the wake of the Scopes trial and at the height of his fame, when Darrow sorely needed money and could have commanded titanic fees on Wall Street, he declined to cash in. He went, instead, to Detroit, to represent the Sweet family, African-Americans who had fired into a racist mob that attacked their new home in a white neighborhood.

It was the summer of the Klan—when thousands of hooded bullies marched down Pennsylvania Avenue in Washington. Darrow defended the Sweets in two grueling trials that spanned seven months, for a token fee raised by the NAACP. He won the case, establishing a principle that black Americans had a right to self-defense.

Sweet “bought that home just as you buy yours, because he wanted a home to live in, to take his wife and to raise a family,” Darrow told the all-white jury. “No man lived a better life or died a better death than fighting for his home and his children.” At the end of his speech, James Weldon Johnson, the NAACP’s leader, embraced the aged lawyer and wept with him there in the courtroom. A few weeks later, Darrow was staggered by a heart attack. He was never the same.

He had been, said Steffens, “the attorney for the damned.” Ultimately, I forgave him.

John A. Farrell has written Clarence Darrow: Attorney for the Damned.

En este tiempo en que presidente y vicepresidente rinden culto verbal a la niñez, aquí está este texto del profesor Manuel Restrepo, que levantará roncha antes que finalice el 2011, un tiempo repleto de paradojas y sorpresas. El artículo mira con atención crítica el rumbo de la economía nacional y los sobresaltos políticos. N de la R.

Entre la maldita niña y el bendito niño

Durante la ultima década en Colombia el producto interno bruto PIB no paró de crecer. La economía se comportó como una de las prosperas de América Latina. La inversión extranjera acudió sin demora al llamado del gobierno que la motivó con significativas exenciones tributarias superiores al presupuesto asignado a la educación. Colombia en la primera década del siglo XXI pasó de la explotación agropecuaria a la explotación agroindustrial y a la minería intensiva (reprimarizacion, según L. Sarmiento). Se inició la construcción de nuevas y amplias autopistas, se multiplicaron las megaobras y los megacontratos a consorcios hoy cuestionados, antes benditos, hoy malditos. Se entregaron subsidios tanto a los mas ricos entre los ricos, como a los mas pobres entre los pobres, creando una especie de clientelismo emocional (C. Angarita), que retribuyó con pasión y votos a los mesiánicos gobernantes.

La economía de Colombia no ha parado de crecer, ni dejado de ser un país democrático. Democracia y Mercado o viceversa se presentan como las dos caras de la misma moneda. Es común oír que somos el país con la mas solida democracia y la mas estable economía de América Latina, eso creemos, eso decimos, eso repetimos. Sin embargo también es común que los estudios y las realidades muestren lo contrario. La FAO señala que somos el país numero 61 en corrupción en el sector agropecuario, que los paramilitares en connivencia con empresarios hacen la reforma agraria con fusil y palma de aceite.

Diversos estudios coinciden en que somos un país con un nivel de pobreza presente en mas del 40% de la población y mas del 12% en la indigencia. Sin atención a niños/as, ancianos, discapacitados/as, con racismos, exclusiones y discriminaciones instaladas en la vida cotidiana. Señalan también que somos uno de los 10 países mas desiguales del mundo; uno de los tres con mayor numero de asesinatos por razones políticas y sociales; el segundo con desplazamiento forzado con cerca del 10% de la población en destierro y otro 2% en el exilio o refugio en el exterior; el primero en asesinato de sindicalistas en el mundo; el primero en secuestros. Con violencia sexual permanente, utilización de la violación como botín de guerra; comunidades lgtb perseguidas; pena de muerte como practica (no como ley) sobre insurgentes y opositores políticos incorregibles; cárceles convertidas en campos de concentración con hacinamiento y sin derechos a los reclusos que no pueden comprar poder y en cambio lujosas casa cárcel o resort en guarniciones a la delincuencia con poder y capital .

Por ir tan bien como creemos, la banca internacional nos presta dinero sin descanso sobretodo para hacer la guerra, hoy debemos el doble que hace diez años, (cada niño que nace hoy ya tiene deuda). A mas recursos mas guerra y menos derechos. Talvez no sea cierto que el país vaya tan bien como decimos y creemos. La clase en el poder va muy bien, los medios lo dicen y el congreso lo ratifica haciendo leyes a favor de pocos, aunque en las calles las gentes protesten sin descanso. Se firman todos los días nuevos billonarios contratos de obras y megaobras que a medio terminar se desmoronan con la lluvia, mientras miles de familias empobrecidas que viven sobre montañas de ricos minerales son sepultadas por aludes.

No va bien la redistribución de la riqueza, ni la democracia para las mayorías. Unos pocos van muy bien, la gran mayoría no. El presidente de Colombia cree que es por la maldita niña, (se recompensará por su captura o por darla de baja?), los que están afuera del poder creen que es por la corrupción que asalta los presupuestos de la prevención y las garantías a los derechos. Ahora viene en contrapeso la época del bendito niño, el del pesebre. Juntos (la maldita y el bendito niño) nos recordaran con inocencia que la realidad no se puede ocultar con palabras descalificadoras y desafiantes, tampoco con el acostumbrado modo de convertir las consecuencias en causas.

Las catástrofes no son tan naturales ni ocurren por culpa de la maldita niña, el bendito niño sabe bien porque ocurren las cosas. Mas allá del agua desbordada, hay un responsable recorriendo el planeta, es el sistema de democracia de mercado, conducido por los benditos señores en el poder que se benefician con los recursos públicos, no hacen las obras requeridas por el país si no las que les favorecen sus propios intereses; estimulan la voracidad de los inversionistas extranjeros (nuevo fortín: minería de cielo abierto que cubre medio país); ofrecen garantías de impunidad a criminales y delincuentes; que degradan los derechos humanos en general, que a educación, salud, trabajo y justicia los someten al arbitrio del mercado, pero en cambio pagan a tiempo los intereses de la deuda de la guerra, que se consume la cuarta parte del presupuesto nacional.

La maldita niña no puede merecer odio, ni ser otro falso positivo que sirva para desviar la mirada hacia las acostumbradas cortinas de humo del gobierno, mientras el capital y el mercado se empecinan en llevar al olvido a los responsables del desastre nacional permanente, ininterrumpido, cruel y asolador, que permite a unos pocos contar el capital en dólares y diseñar normas, mientras las mayorías cuentan a sus victimas. Ojala el bendito niño nos ayude a entender de que hablamos cuando hablamos de Colombia como el mejor país del mundo. Ojala el bendito niño contribuya a hacernos comprender que Colombia para unos es una, para otros (inversionistas, políticos, militares) y Estados Unidos, es otra, por eso maldicen la niña o bendicen al niño.

Manuel Restrepo Dominguez. Ph.D, Profesor Titular UPTC. Colombia, Nov 16 de 2011

A new book by Paul W. Kahn

Political Theology: Four New Chapters on the Concept of Sovereignty

Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty, Columbia University Press, 2011, 207pp., $32.50 (hbk), ISBN 9780231153409.

Reviewed by Lars Vinx, Bilkent University

Notre Dame Philosophical Reviews

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Paul W. Kahn's Political Theology is best described as a philosophical commentary on Carl Schmitt's famous work of the same title.^[1] Like Schmitt's Political Theology, the book is divided into four chapters (plus an introduction and a short conclusion). These chapters bear the same titles as the chapters of Schmitt's Political Theology and attempt to reconstruct the arguments in the original Political Theology.

The aims of Kahn's Political Theology, however, are not primarily exegetical. Though he offers some very illuminating perspectives on Schmitt's text, Kahn is primarily interested in using Schmitt's arguments as a foil to develop a conception of political theology that is applicable to contemporary debates in political and legal theory. This attempt to update the idea of political theology is consistently interesting and intriguing but ultimately fails to convince.

The project of political theology might appear irrelevant to contemporary politics for the simple reason that we are living in a secular state which refuses to give official recognition to any particular religious doctrine. In response to this challenge, Kahn argues that the point of political theology is not to subject politics to the beliefs or demands of some religious tradition or other, but rather to acknowledge that "the state is not the secular arrangement that it purports to be." (p. 18)

Even a state that, like the US, sharply separates politics and religion "maintains its own sacred space and history," (p. 19) and political life in the modern state is therefore "not a life stripped of faith and of the experience of the sacred." (p. 18) Political theology, consequently, remains relevant even where there is a clear distinction between church and state.

Like Schmitt, Kahn believes that the existence of a political community depends on a willingness on the part of its members to sacrifice their lives in the defence of the existence of the community against internal or external enemies. The idea of sacrifice, Kahn claims, is implicit in the American understanding of democracy, which grounds the legitimacy of the constitution in a revolutionary exercise of popular sovereignty. A democratic revolution cannot take place without a willingness to sacrifice on the part of a people rising up against its oppressors. Sacrifice, therefore, stands at the beginning of modern political experience and the idea of popular sovereignty is inseparable from it.

The view that one ought to be willing to sacrifice oneself for the state, Kahn argues, is incommensurable to a liberal political theory that bases the state on a social contract designed to further the satisfaction of individual interest. In political sacrifice, the individual willingly subordinates its personal interest to the life of the community, on the basis of the belief that the sacrifice for the state "holds forth an ultimate meaning." (p. 155) A completely de-theologized liberal political theory has no access to that ultimate meaning, and it must consequently fail to offer a complete and adequate understanding of political experience in the modern democratic nation state committed to the principle of popular sovereignty. (p. 17)

Kahn's charge that liberalism must fail to understand the modern experience of the political remains ambiguous. The charge is based on the fact, presumably, that a liberal who denies that 'the state maintains its own sacred space' is likely to see only regrettable slaughter where the political theologian sees a noble sacrifice imbued with transcendent meaning. But to justify a dismissal of liberal political theory one must do more than to point out that a liberal's political experience will differ from that of a committed political theologian. One must show that the liberal perception of the sacrifice as regrettable slaughter is a misperception.

The liberal, the political theologian might argue, wrongly denies that the act of sacrifice for the state is objectively valuable from a moral point of view. But Kahn does not want to make an argument of this sort. He claims that his political theology is "a project of descriptive political analysis." (p. 25) He goes on to point out that one can be engaged in this project without endorsing the "values that are revealed in this account." (p. 26) The goal of political theology, Kahn suggests here, is merely to describe the forms of political experience prevalent in American society. The question is not whether the beliefs and attitudes described by political theology are true or false, but rather how they "figure in the construction of a broader political imagination." (p. 10)

The charge against liberalism, it would seem, must then be a charge against liberalism's capability to offer an accurate descriptive account of political experience, not a charge against the liberal denial of the perceptions of value embedded in that experience. Kahn claims, in this vein, that "we will never find an adequate explanation of the politics of sacrifice in liberal theory or positive political science." (p. 17) So understood, however, the charge against liberalism is either irrelevant or false. If the task of explanation is not to be understood as the task of giving justification or endorsement, but rather as the task of theoretical description, the criticism does not apply to normative liberal political theory, since such theory does not aim to offer explanations.

And it is hard to see, on the other hand, why a descriptive social scientist should be unable to offer explanations, be they historical, cultural, social-psychological, etc., for why people are attached to a political-theology of sacrifice, or why he should be unable to understand what it is that those people believe or what their acts of sacrifice mean to them. Of course, the acts in question will not mean to the social scientist what they mean to those who perform them, unless the scientist is himself attached to the political theology that motivates those acts. But if we were to say that the understanding of the non-attached scientist is therefore deficient, we would fall back, it seems, into the view that the scientist's mistake consists in a failure to perceive the sacrificial acts he observes as objectively valuable.

In response to this dilemma, Kahn admits that a popular sovereign acting outside of the law "is no more imaginable from without than is a god to those outside of the faith." (p. 12) But Kahn claims that this is no reason to worry for the political theologian: "Just as no one will be convinced by argument to believe in God, no faith was ever defeated by argument alone." (p. 26) The failure of the liberal political theorist, then, is neither a moral failure nor a failure of description or explanation. The failure, rather, is the liberal theorist's lack of faith in the civil religion that Kahn's political theology is about.

The liberal theorist simply does not believe that the sacrifice for the state 'holds forth an ultimate meaning.' One cannot prove by argument, Kahn concedes, that the liberal theorist is wrong not to have faith, since faith is inaccessible to reason. But if a political community is constituted by a shared political faith in the state as a source of ultimate meaning then one can conclude, it would seem, that the liberal cannot be a true member of that political community. Kahn's criticism thus appears to come down to the troubling claim that the liberal is a political heretic, an unbeliever in the American civil religion, and thus an internal enemy.^[2]

Understandably, Kahn does not dwell on this implication of his attack on liberal political theory. His rhetorical strategy, rather, is to issue an invitation to join in the faith.

Kahn attempts to show that some key features of American constitutional practice, like the institution of judicial review, the veneration of the constitution, or the strong executive power of the president make better sense if they are seen in the light of a political theology. Two key claims emerge in the course of these discussions--claims that are supposed to make attachment to the faith appear attractive, even in the absence of any possibility of reasoned proof of its superiority over a liberal-individualist perspective. Kahn argues that a political religion is needed to avoid inauthenticity and to achieve collective autonomy.

The deepest symptom of liberal inauthenticity, according to Kahn, is the belief that political opponents can always be brought to agreement through reasonable deliberation. Liberals consequently deny that there are states of exception or political crises that are essentially beyond legal regulation and that require a sovereign decision beyond the law.

Such a view, Kahn argues, overlooks the possibility of existential crisis: "The mistake is to think that law without sovereignty -- in particular, international law -- has solved the problem of perpetuating its own existence." (p. 56) A state without sovereignty will, in a moment of crisis, fail "to defend its own self-ordering as an existential value." (p. 57) The Schmittian state, by contrast, is mindful of the possible need to defend itself and thus achieves a more authentic form of political existence: "Like Heidegger's authentic individual, Schmitt's state always confronts the possibility of its own death." (p. 60)

It seems to make little sense, however, to argue that liberal states or liberal systems of legal ordering are inauthentic because they fail to solve 'the problem of perpetuating their own existence.' Clearly, a Schmittian state doesn't solve that problem either. Even if citizens share a political religion that motivates them to sacrifice their lives for the state, they may still fail in their struggle to defend their state if faced with a stronger external enemy.

What is more, the liberal state is explicitly based on the goal of mutual protection of individual rights and interests. If a state fails to realize this goal, or if it excludes significant proportions of the citizenry from its realization, a liberal would likely argue that the state in question is illegitimate and that its preservation may not be desirable. It is hard to see why such a stance should signal inauthenticity or a failure to confront the possibility of the death of the state. It would be inauthentic, rather, for liberals to attribute unconditional value to the existence of a state that fails to realize liberal aims or even thwarts the realization of those aims.

According to Kahn, however, liberalism is not just guilty of inauthenticity, it also precludes the realization of a form of collective freedom that could not exist without a political faith (see pp. 91-122). Kahn models the free act on the paradigms of aesthetic creation and philosophical dialogue. A genuinely creative act, or a genuine contribution to an ongoing philosophical debate, must be related to the conventions, the language, and the content of previous creative acts or philosophical interventions in order to be understandable to its audience.

But it must also distance itself from the earlier conventions, languages, and contents to which it refers and on which it is based in order to create something new. Moreover, the creative act must be surprising in order to be an exercise of freedom. If the act were predictable on sociological, psychological, or ideological grounds, it would fail to qualify as an authentic exercise of freedom. Schmitt's sovereign decision on the exception, in Kahn's view, is the paradigm example of an act that is free in this sense.

As Kahn acknowledges (p. 101), his conception of free decision is in danger of collapsing into mere arbitrariness. To solve this problem Kahn argues, in a rather freewheeling interpretation of the third chapter of Schmitt's Political Theology, that the free act must be based on analogical reasoning (see pp. 101-114).

Analogical reasoning bridges the gap between a norm and its application, suspension, or change in a way that goes beyond mere deduction and thus introduces an element of creativity. Since it is impossible to predict what analogies will be drawn and be found convincing in the future, the results of analogical reasoning cannot be predicted by causal analysis. But analogical reasoning nevertheless forges a meaningful relation between antecedent normativity and the free act.

It involves seeing a new situation as relevantly similar to past political experience. To participate in a community's political life, one must therefore participate in the practices of analogical reasoning that maintain and develop a community's political self-understanding through history. In doing so, Kahn claims, the members of a political community collectively realize a form of freedom that is akin to the freedom experienced by the aesthetic genius or the great philosopher.

This conception of collective freedom, it would appear, is no more intimately related to a political theology of sacrifice than it is to a liberal narrative focusing on the extension of liberal freedom and equality. Using the method of analogy, one might, following Kahn, interpret contested judicial decisions or uses of extra-legal force on the part of the executive as re-enactments of acts of revolutionary popular sovereignty that transcend legality (see pp. 31-90).

But one might just as well use the method of analogical reasoning to show that situations of crisis are relevantly analogous to conditions that have previously been considered amenable to legal control. Hence, the method of analogy as such does not support the idea that every legal order must be based on a sovereign power capable of taking a decision on the exception. Analogical reasoning may, with equal justification, be used to extend the range of legality instead of curtailing it.

Moreover, if the method of Kahn's political theology is simply the method of analogy, it is hard to see what is supposed to be specifically theological about it. Kahn claims that a political-theological inquiry into American political culture will show that "our political life remains deeply embedded in a web of conceptions that are theological in their origin or structure." (p. 120)

Even if this were an uncontroversial observation, it would fail to support Kahn's claim that liberal political theory "lacks a conception of the political." (p. 121) If political thought is simply a hermeneutics of social meaning based on analogical reasoning, we will find that the content of 'the political' is culturally variable because different communities understand their politics in different ways. Kahn's general claim that any community which does not subscribe to a political theology of sacrifice doesn't have a true political life is therefore ungrounded.

Kahn complains that liberal theory considers much of American political practice to be pathological, "as if the aim of a political practice is to satisfy some normative theory." (p. 121) But to say that liberal theory ought to be rejected because it considers political practice to be pathological evidently begs the question against a normative theory.

Since Kahn fails to establish that political theology is necessary to secure political authenticity or collective freedom, he is in no position to assume that the practices criticized by liberals deserve to be preserved. That he makes that assumption, nevertheless, gives the lie to his initial claim that his project is merely descriptive. At the end of the day, Kahn has little of substance to add to the intolerant and sectarian idea that liberals are un-American since they do not adhere to what he takes to be America's civil religion.

Perhaps this should not occasion surprise. Kahn attempts to distance himself from Schmitt's own views by claiming that his Political Theology differs from Schmitt's in that it "substitutes the popular sovereign for his idea of sovereignty." (p. 9, see also p. 39) But it should be evident to even a casual reader of Schmitt's major works that Schmitt thought his conception of sovereignty was perfectly applicable to the democratic state. Schmitt's project throughout the Weimar-period centers on the attempt to transpose the decisionist idea of sovereignty into a democratic key.^[3] It is an unavoidable condition of this transposition, for Schmitt, that we conceive of the principle of democracy as being completely distinct from and as taking priority over the principles of liberal-democratic constitutionalism.

Democracy, as a result, comes to be fused with authoritarianism in the call for a plebiscitarian dictatorship that is empowered to act beyond the law. Those who want to employ Schmitt's conception of sovereignty to interpret a constitution which is clearly committed to a separation of powers and to the rule of law must explain why we should accept the authoritarian consequences of Schmitt's conception of sovereignty, or else they must tell us how it is possible to disavow those consequences while using a Schmittian conception of sovereignty. Kahn skirts this issue.^[4] One suspects that the political implications of his political theology may not be as different from those of Schmitt's own as Kahn seems to believe.

The problems and gaps in the argument of Political Theology indicate a failure of Kahn's declared project of separating political theology from intolerant sectarian conviction, of making it safe for a society committed to a separation of church and state and to the principles of tolerance and equal concern that underpin it. Kahn's Political Theology may, despite its argumentative failings, have an important lesson to teach, namely that political theology is not a viable paradigm for contemporary political thought.

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^[1] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. by George Schwab, with a foreword by Tracy B. Strong (Chicago: University of Chicago Press, 2006).

^[2] Of course, a similar assessment will presumably have to apply to those inclined to reject Kahn's sacralization of the state on religious grounds.

^[3] See Carl Schmitt, Constitutional Theory, trans. and ed. by Jeffrey Seitzer, with a foreword by Ellen Kennedy (Durham and London: Duke University Press, 2008).

^[4] This criticism equally applies to Andreas Kalyvas, Democracy and the Politics of the Extraordinary: Max Weber, Carl Schmitt, and Hannah Arendt (Cambridge: Cambridge University Press, 2008).

Theory Talk #43 - Saskia Sassen

Theory Talk #43 - Saskia Sassen

Tuesday, September 6, 2011

Saskia Sassen on Sociology, Globalization, and the Re-shaping of the National

Globalization has been a key feature of contemporary IR, but nobody has challenged our understandings and misunderstandings of that contested concept as eloquently as sociologist Saskia Sassen has. For over twenty years, she has contributed to IR theorizing by vigorously arguing for a sociological view on the shifting relations between the national and the global. In this Talk, Sassen, amongst others, discusses global cities and the differences that sociological approaches to IR make, and elaborates on the constant and multiple re-articulations of the national and the global.

Print version of this Talk (pdf)

What is, according to you, the biggest challenge / principal debate in current IR? What is your position or answer to this challenge / in this debate?

Good question…but to answer it, I need to expand it to include much more than IR. IR is one formalized knowledge vector. There are others. I found it interesting to read the Theory Talks interview with Keohane (Theory Talk #9): Here is a foundational IR theorist who tells us also that he needs a broader framing and, in that spirit, proceeds to speak of global politics. Wendt (Theory Talk #3) also agrees. I think there is a historical reality out there that is pushing us to recognize the need for more encompassing frameworks.

IR, narrowly defined, can keep producing good work that adds to our knowledge. But eventually it will be dealing with a smaller and smaller segment of global politics. At one time –the height of the modern inter-state system—the 20^th century-IR captured most of what there was to be said with regards to formal international politics, especially in terms of formal actors and institutions.

That no longer holds. The domain of global politics has expanded to include a growing diversity of other actors and vectors –it now includes, besides the familiar actors, such diverse entities/ideas/manifestations as the politics of Tahir Square in Cairo, the informal jurisdictions that the Somali pirates have carved out, and the power of global financial institutions over national state policy even in the most powerful states. Indeed, Keohane and Joseph Nye (Theory Talk #7) wrote an early book on transnational relations, which they defined as international processes that are not government-to-government relations—such as the activities of multinational corporations or international tourism. I was at the center at the time, at Harvard, and added irregular international migration as a section of all transnational migrations.

In my own work, I have sought to generate disciplined concepts and analytic strategies to capture this transformation. Pivotal in my research is that that the global—whether an institution, a process, a discursive practice, or an imaginary concept—both transcends the exclusive framing of national states, and also partly emerges and operates within that framing. Seen this way, globalization is more than its common representation as growing interdependence and formation of self-evidently global institutions. It also includes sub-national spaces, processes, and actors (as I have argued in this article). The global gets partly structured inside the national—and this process entails a denationalizing of what was historically constructed as national.

Denationalization, by which I refer to this fact that much of the global gets constituted partly inside the national, has three consequences. First, it means that much of the global is dressed in the clothing of the national, even though it is not national. The national is gradually becoming a different condition from what it used to be up until about 20 years ago. Second, this process of denationalization can coexist with ideological nationalisms; in fact, the insecurity it brings about might well fuel passionate nationalisms. But, in the meantime, history continues to re-position the meaning of the national in the deep structures of society and political systems. Third, understanding the global must then focus in greater detail on what happens inside the national. It is not only about counting the number of global firms and foreign investors. Immigrant communities and high-level foreign professionals, and international artists are also part of this process.

This is largely absent from the most widely accepted definitions of globalization. I agree with that definition in many ways, but I think it leaves out those critical parts of the global that get constituted inside the national—and thereby leaves out the consequences of this for the state, for citizens, for norm-making, for the definition of what is “national security,” and further, for what is membership in the “nation”. Moreover, it leaves out the potential internationalism that is brewing deep inside the national, no matter the ideological nationalism.

In this context, IR is one component of global politics; it leaves out multiple, less formal international processes as well as the creation of global politics inside nation-states.

How did you arrive at where you currently are in IR?

I have come to recognize that one succinct way of understanding my trajectory as a scholar/researcher is that from the beginning, when confronted with a powerful explanation, I was immediately on alert, and wanted to understand what was actually being obscured/hidden by that explanation. So, when the study of globalization began in the 1980s and then really took off in the 1990s, I found myself interested in, and researching, the counter-intuitive elements that one can find in that or any complex other situation.

You can see this in what I think of as my three “big” books, each of which took me about 8 to 10 years (that is why I love doing little books; they keep me sane). In the first (The Mobility of Labor and Capital, 1988), I went against established notions that foreign investment in the global south would retain potential emigrants. In my research I found that it can actually raise the likelihood of emigration if it goes to labor-intensive sectors and/or devastates the traditional economy. In the second (The Global City, 1991), I went against established notions at the time that the global economy transcends territory and its associated regulatory umbrellas; in my research, I found that leading global firms, far from being placeless, need very specific territorial insertions, and that this need is sharpest in the case of highly globalized and digitized sectors such as finance.

In the third (Territory, Authority, Rights: From Medieval to Global Assemblages, Princeton University Press, 2008), I went against established notions about globlization, e.g., that the stronger the global, the weaker the national state. In my research, I found that today’s foundational transformations consist not only of globalizing dynamics but also of denationalizing dynamics. By the latter, I refer to a) in my reading, much of the global gets constituted inside the national, b) it does so at a price: it denationalizes the national as historically constructed. This denationalizing can happen in economic, criminal, governmental, cultural, subjective, and many other domains. I also think that even with these developments, the national continues to be probably the most significant and encompassing condition, but that the imbrications of global, national, and denationalized will proliferate and begin to produce overall dynamics we have not yet seen.

What would a student need to become a specialist in IR or understand the world in a global way?

I hear two very different questions here. To become an IR person… On that one, I would say you have enough IR people answering that question in Theory Talks—they probably have said it all, though let me add that some IR scholarship is far more rigid or strict; I would argue that IR is precisely that which global politics is not. I can see this in my own research.

What it takes if you are doing my kind of research is probably far less familiar than standard IR. Let me develop this idea. Rather than national states and the inter-state system, you focus on transversal flows that cut across existing units. For instance, I have developed and constructed empirically emergent geographies of centrality, especially among global cities that connect across old divides. Another instance of these transversal processes are operational spaces, for instance WTO law allows firms to bypass national states and deal directly with local jurisdictions—that is a constructed operational space for global firms. WTO also gives formal, cross-border, portable rights to professionals hired through WTO, which are recognized in all signatory countries—that is another operational space. One of the aspects I emphasize in my work is how national governments have been critical for the making of a global operational space for firms: there is no such legal persona as global firm, but there is that operational space that allows them to conduct themselves as if they were a global firm established as such in law (that is, as a legal persona). I only mentioned economic actors and spaces here, but this also holds for other domains, especially civil society and the new types of cross border arrangements amongst various groups of states that have proliferated over the last 15 years—anti-terrorism agreements, drug trade policing agreements, etc.

To make that explicit, doing this kind of research requires going beyond traditional disciplinary boundaries: you need to mix not just the empirical information about technologies, jurisdictions, transnational firms, the specific national laws of countries governing the diverse domains you might be covering –from economy to civil society. Beyond the empirical, which in a way is not so difficult—though it takes a lot of time—there is the challenge of developing conceptual framings that allow you to accommodate these fragments from diverse disciplines. In my experience one has to construct a kind of conceptual architecture that encompasses (as does a building!) many diverse elements. The critical challenge here is the organizing logic.

With its bias towards the state, cities are not a widely studied unit of analysis in IR. What’s the big ‘selling point’ of cities; that is, how do cities help us understand dynamics such as globalization in ways that studying states can’t?

The city can make concrete what can otherwise remain rather elusive. For instance, what we call “global governance challenges” become material and urgent in cities. Additionally, I think that the critical dimension is transversal cross-border geographies that connect cities, and scalar dynamics: Much of what happens in the global cities of the world is already global phenomena [that is cloaked in the guise of the national] as I mentioned before.

It becomes clear that ours is a multi-polar world through the proliferation of global cities. This multi-polarity is wired into the functioning of just about all of our cross-border systems. It might become far more consequential and “real” than the G2 notion (China and the US). Already you hear people talking about how the G20 is the real entity, even though it is informal!! The multi-polarity of the diverse cross-border networks of global cities is also informal. I think these formats are the future, not the big, slow-moving heavy dinosaurs of leading nation-states, such as the US and China...

To borrow a title from an existing article: “Is globalization today really different than globalization a hundred years ago?”

Indeed, I have devoted some very serious research time and writing time to this question. I find there are major and significant differences: the surface resemblances are not enough to support the comparison. I also focused on a more recent period the Bretton Woods agreement, which is often seen as the beginning of the global era—it was not. Nor was the era of the big transnational banks of the 1970s the beginning.

All I can give you here are brutally short answers. The late 1800s contained many of the capabilities with think of today as necessary for a global world. But the larger organizing logic was one of empires in the traditional historic/geographic sense of the concept. There were enterprises that operated globally; there were agreements between firms to collaborate on certain massive projects in mining and transport; and there was an international (largely among the major European powers, of course!) regime of patents and property rights. This is a fascinating history that I develop at some length in Territory, Authority, Rights.

Secondly, the Bretton Woods system that dominated the international political economy up until the 70s was definitely an international agreement—but at the heart of its internationalism as developed in the post WWII years, was the notion of the need for such an international agreement to protect national states from excessive fluctuations in the international economy; there was an effort to strengthen national states in their capacity to govern their economies. This is the opposite from the global era that takes off in the 1980s (though it begins to develop in embryo already in the 1970s). I develop this difference in chapter 4 of Territory, Authority, Rights.

Thirdly, the transnational corporations (TNCs) of the post war era operated in a period of massive protections—sure there were tariffs on exports and imports, but there were also the major European powers privileging in ways small and big, their TNCs. Again this is different from our current global neoliberal era.

In your most recent book, A Sociology of Globalization, you explain that globalization consists both of global institutions and of local accommodations or agency. Hasn’t the first pillar of globalization, global institutions, received a blow since the year 2000? The United Nations seem increasingly incapable to warrant international peace; global financial institutions have difficulties dealing with the unfolding financial crisis; and the growth of the BRICS relative to the US-EU-Japan triangle seems to predict multi-polarity. How deeply institutionalized is global agreement on economical and political cooperation?

I see other alignments. The IMF and the WTO have done their jobs, but they matter less in this phase, even though there was a bit of a resurgence in response to the 2008 financial crisis. But, to interpret this loss of power as meaning ‘less globalization’ is not quite right: they have done their job, they matter less now. The work is done.

Further, global institutions are different from the supranational system you refer to, which is centered in national states, even though sometimes they operate as if they were global institutions. Strictly speaking, we have very few global institutions and global laws. So, much globality gets constituted inside the supranational system in the zone of international relations, and inside the national, including certain branches of the national state itself.

Again, with the current wide-spread economic crisis, unfettered globalization seems to be subject to the elasticity Karl Polanyi was talking about—is the liberal restructuring of the state you wrote about now finished, or is this crisis yet again an impulse to restructure state-market relations?

I have a sense of the decay of the liberal state. Decay is different from responding to new challenges and thereby contributing to the future of the institution. What you describe was the case over the last several centuries in the history of the west, but now the west is seeing the decay of this algorithm. There is much to be said about finance and the hyper-financialization of our economies; it has certainly contributed to this decay of the liberal state (at least that is my view). To give an example: in the most extreme sites, we were seeing the disassembling of the middle class: some strata became richer than they ever expected, forming a high-income professional class, a tendency most extremely visible in global cities; but, it also created a more provincial form of this upward mobility. However, the more modest sectors of the middle class became impoverished, ceased to be, as I like to put it, the historic subject that constituted Keynesianism—with its vast incorporation of people as workers and consumers given mass production, mass consumption, mass construction of suburban housing, etc. The future renovation/reinvention of the state may lie elsewhere—in Morales’ project for Bolivia, in Indonesia’s effort to develop an electoral system that is also a Muslim state…

How does a sociological approach to international relations differ from a political-science approach?

One key difference is the notion that the global gets partly structured inside the national—and this process entails a denationalizing of what was historically constructed as national. This is mostly not part of the most widely accepted definitions of globalization—which focuses on the growing interdependence of the world—with which I agree only partly. Why only partly? Because I think it leaves out those critical parts of the global that get constituted inside the national –and thereby leaves out the consequences of this for the state, for cities, for citizens, for norm-making, for the definition of what is “national security,” and for what constitutes membership in the “nation”. These are all either deeply social/sociological questions or, if not (e.g. national security) they taken on a very different form and content when examined through sociology.

More generally, I would say we have created the technology of globalization, the economics, the politics, and the culture—perhaps not as aptly as possible, but we have done it. What we have not done is the sociology of globalization… This is a project under construction. The social is far more elusive, in a way, than technology. Where the national and the global begin when it comes to the social is an empirical question, which is not as easily an a priori as you could have with real politics.

Final question. Can you help us to make methodological sense of contemporary global relations?

Theory is critical: we need to grasp that which we cannot reduce to empirical measures. Empirical data to document globalization is important, but it is not enough. We are dealing with new interaction effects, new scalings, and new subjectivities; my denationalization notion is but one example. Let me use the rise of organized religions to illustrate how I think at least some of us should be working the empirical materials of our period.

The rise of organized religions is structurally part of our complex global modernity, even when their doctrines are not modern. I make a similar argument about a range of very diverse contemporary trends that we experience as regressive or as belonging to the past. This argument rests on my research (2008) about the partial and often highly specialized post-1980s disassembling of the nation-state as historically constructed in the West. That disassembling produces structural holes, or blank spaces, in the older (secular) fabric.

A key outcome of these tendencies is that “the center,” as constructed in modern history, holds less today than in the 20th century. That “center” found its most complex instantiation in the modern state. The disassembling made room, so to speak, for the rise of older complex assemblages that had been pushed out of diverse spheres of the polity and of social life through the expanded power of the secularizing modern state. Organized religions are a major example of this possibility. They are also heuristic in that their high visibility helps us understand how old formations can resurface as part of new global organizing logics. Insofar as this rise is linked to large structural transformations that produce structural holes in the older secular fabric, I see this rise as part of our modernity. Whether this is good or bad is a separate matter.

This disassembling of the national as the dominant condition of early modernity also enables the emergence of novel types of assemblages at both the global and sub-national scale. Among these are global financial networks that have little resemblance to traditional nation-state-centered banking. A very different example is that of the complex organizational architectures we see in global civil society struggles, with Oxfam, Amnesty International and Forest Watch as examples of diverse causes. The key organizational feature is the link between multiple local (non-cosmopolitan!) struggles that take on global projection through the existence of a major organization with worldwide recognition. The rise or global expansion of old and new organized religions also follows this pattern.

In sum, conceiving of globalization must not occur only in terms of interdependence and global institutions, but also as inhabiting and reshaping the national from the inside, which opens up a vast agenda for research and politics. It means that research on globalization needs to include detailed studies and ethnographies of multiple national conditions and dynamics that are likely to be engaged by the global and often are the global, but function inside the national. This will take decoding: much of the global is still dressed in the clothes of the national. Deciphering the global requires delving deeper into subsumed phenomena and structures, rather than simply considering the self-evident.

Saskia Sassen is the Robert S. Lynd Professor of Sociology at Columbia University. Her research and writing focuses on globalization (including social, economic and political dimensions), immigration, global cities (including cities and terrorism), the new networked technologies, and changes within the liberal state that result from current transnational conditions. She serves on several editorial boards and is an advisor to several international bodies. She is a Member of the Council on Foreign Relations, and a member of the National Academy of Sciences Panel on Cities.

She has received a variety of awards and prizes, most recently, a Doctor honoris causa from Delft University (Netherlands), the first Distinguished Graduate School Alumnus Award of the University of Notre Dame, and was one of the four winners of the first University of Chicago Future Mentor Award covering all doctoral programs. She has written for The Guardian, The New York Times, Le Monde Diplomatique, the International Herald Tribune, Newsweek International, Vanguardia, Clarin, the Financial Times, among others.

Related links

• Saskia Sassen’s home page
• Faculty profile at Columbia University

• Read Sassen’s The World’s Third Spaces (openDemocracy 2008) here (html)
• Read Sassen’s Globalization or Denationalization? (Review of International Political Economy, 2003) here (pdf)
• Read the first 10 pages of Sassen’s first book, The Mobility of Capital and Labor (1988) here (pdf)
• Read the introduction of Sassen’s 2006 book Territory, Authority, Rights here (pdf)
• Read Sassen’ The Global City: Strategic Site/New Frontier (American Studies, 2000) here (pdf)