Conversations After Reading Friel (Part One)
- By Amanda Minervini and Adam Sitze, with Jim Hicks
Editor's Note: After attending a launch event for Howard Friel's Chomsky and Dershowitz: On Endless War and the End of CIvil Liberties, we asked a couple of friends of MR to sit down for conversation about the book and the crucial issues it raises. What follows is the first of a five-part discussion.
I. The Logician vs. the Lawyer
Jim Hicks: As you both know, I was simply fascinated with the way Howard Friel sets up his new book’s central argument. I think that the issues summarized by its subtitle—“On Endless War and the End of Civil Liberties”—are even more essential that the two warring titans of his title, Chomsky and Dershowitz. In a sense, I see both of these figures (and I think he does as well) as world-historical individuals—if they didn’t exist, history would have had to invent them. In point of fact, just in the time that we’ve been deciding how to get together, a whole passel of news stories have rolled out, and rolled directly into this discussion, which makes our discussion even more daunting, yet perhaps more important as well.
Amanda Minervini: The book is much more than the confrontation of two figures; the stakes are much larger. That subtitle made me think immediately of its hero-villain narrative: if this has to be the pattern, then I would have been curious to know what made the “villain” become a villain. How did Dershowitz move from quoting Alice in Wonderland in order to oppose preventive detention (C & D 65), to his current arguments in support of the limitation of civil rights, of “preventive and preemptive detention,” and, even, of torture?
As I read the book, which illustrates the intellectual trajectory of both Chomsky and Dershowitz from the 60s to today, I saw the collaborations between the two figures turn into a rivalry between the linguist, the logician, the philosopher Chomsky and the lawyer Dershowitz. In all sorts of matters, since from the beginning this rivalry was characterized as a battle of words and of interpretations. Friel himself motivates this titans-at-war reading, for instance when he writes “thus began the rivalry” (C & D 54). But you are right, Jim, there is much more to Friel’s work; his major concern becomes clear by looking at the structure of the book, an its division into sections. Is the US becoming an authoritarian state? Friel certainly comes up with strong arguments to nurture this worry/doubt, and to answer affirmatively. He also brings up brilliant counter-arguments that illuminate the corruption within Dershowitz’s “logic.” This central question is even more important if one considers that it refers to a country that acts as if it were applying and exporting the highest form of democratic values (the value which Chomsky actually believes in and that he has actively supported).
Jim Hicks: Friel describes a vicious circle, or cycle, where aggressive warfare leads to terrorism and measures of counterterrorism lead to an increasing authoritarian state. I like how you, Amanda, emphasize that, besides just having two figures, we also have very different figures. So we’ve got a linguist, logician, and philosopher in Chomsky and then we’ve got Dershowitz, and he is, principally, a lawyer. And the emphasis that Friel puts on Dershowitz’s self-appointed role as the public defender of Israel in the United States really emphasizes that identity. He’s also an activist, but his methods are those of a lawyer. Does that make sense to you as well, Adam? And if so, what are the implications? If you’ve got such drastically different figures battling it out, what comes of that? In the public sphere, how are the effects they have different?
Adam Sitze: Yes, I also feel that Amanda has framed the issue quite nicely. Beyond Chomsky and Dershowitz, we have a book that gives us an allegory of two ways of thinking about, let’s call it, the American liberal left, in the period since the Vietnam War. And you have as well two almost incommensurable concepts of law. On the one hand, you have the typical hired gun, the lawyer who understands that he has a client for whom he has to produce a victory, no matter what implications that victory might have for law in general. In his book The Case for Israel, Dershowitz clearly understands his subject as from the standpoint of the trial, and with reference to the client. That’s one particular way of thinking about the concept of law. And, in general, I would say it leads to an instrumentalization of the concept of law, a reduction of law as a means to the end for producing a victory for one’s client, whether it be Israel or the United States.
In Dershowitz’s case, I think this produces a number of manifest inconsistencies that Friel, and Chomsky as well, have done an excellent job of documenting. But the trial lawyer, remember, doesn’t claim to be a jurist. The trial lawyer doesn’t want to become a philosopher of law whose concept of law is internally consistent and well-founded. His desire is victory and victory alone: it’s a desire that is universally particular, that in each case aims at winning the case. And the jurisprudence that Dershowitz currently proposes to produce—his so-called “preventive jurisprudence”—is clearly particularized in that exact sense. He’s not trying to think. He’s trying to win victories for Israel and the United States and he doesn’t pretend otherwise.
Chomsky, by contrast, universalizes law, treating lawfulness as an end in and for itself, as if law were or at least should be an unswerving norm. That’s a very different concept of law than the law that Dershowitz proposes to use. It’s almost Kantian, a concept of law as a noncontradictory system that’s perfectly consistent, or at least ought to be, such that violations of it and inconsistencies within it are self-evidently wrong. So on the one hand you have a concept of law for which exceptions and inconsistencies are no counterargument, since law here is simply a means to the end of producing victory. And on the other hand you have a concept of law that—even if it’s not Kantian, maybe it’s closer to a formalism of the Kelsenian type—where law is universal and any exception to it is self-evidently a violation of law, self-evidently antithetical to the very idea of law. With such different concepts of law, is it even possible to have a dispute?
Dialectically speaking, there’s a deeper problem here. Whereas Dershowitz is explicitly committed to a universally particular concept of law, the converse holds for Chomsky’s universalism: it’s implicitly particular, since the history of international law, not to mention the history of the rule of law, is equally the history of empire, and Anglo-American empire in particular. Chomsky, without question, is a critic of empire, but from the standpoint of the history of concepts the imperial premises of his criticisms militate against the anti-imperial desires that animate his criticisms. Conceptually, in other words, he leaves us in a deadlock. The same, I think, is true relative to his analyses of the contemporary world. Today, the geopolitical presuppositions of international law are shifting in ways that Dershowitz seems to understand better than Chomsky, and yet in relation to which Dershowitz reacts not with intellect but with polemical aggression, with a desire for victory at any cost. For example, I do think that today we’re experiencing a shift in terms of the time of war (which traditionally began with a declaration and ended with an amnesty) and also its space (which traditionally was organized around the concept of the front—the notion that you could face off against an enemy, or have a uniformed enemy against whom you fight). Both the time and space of war today, under pressure from new technologies and new global phenomena, seem to me to be an anachronism at this point. Dershowitz grasps this, and proposes to win in these conditions at all costs, a position that ends ultimately in lawfare and in an affirmation of the worst of the worst—the legalization of torture, for example. Chomsky grasps this change too, but he seems to want to stand outside of it, to judge its excesses with reference to a reified concept of law, or in what amounts to same thing, by universalizing a particular concept of law whose implicit politics undercut his explicit politics.
That was a long response, but it was really a way to extend Amanda’s framing: I too am persuaded that this book is about more than just these two figures. These are two different philosophies of law, the lawyer’s philosophy of law (which more accurately is an anti-philosophy) and the philosopher’s philosophy of law. And my response, upon finishing the book, is that dialectically speaking it would be useful to think beyond both concepts. Neither gives us the politics we need.
Jim Hicks: Yes, much of what you said, Adam, reminds me of a feeling I often have in reading Chomsky, and even in reading Chomsky as summarized and presented in this book. That somehow he feels that it’s enough to be right, and to point out the inaccuracies and contradictions and abusive logical moves of the other. As if that will be the most effective means of furthering his goals. There’s a willed purity of position that may be ineffectual, and almost, I don’t know, arrogant. I’m reminded of Bruno Latour’s presentation of the messiness of politics in his commentary on the debate between Socrates and Callicles. In watching these two pitted against each other, at some level it’s almost impossible not to feel that Chomsky may be right but completely ineffectual and Dershowitz is clearly wrong but likely to gain the field.
Adam Sitze: Right, exactly. We could also look at it this way. In his 1950 text The Nomos of the Earth, the German jurist Carl Schmitt criticizes what would later become Chomsky’s position. Schmitt opposes the idea that law doesn’t have a space, that international law is an abstract concept akin to the laws of nature—something that one studies scientifically and for which one amasses evidence in one’s scientific studies. That’s what I think about Chomsky: he engages in the scientification of law. He seems to suppose that amassing evidence on the model of a scientific study somehow will enable an effective political response to lawlessness of the Dershowitzian type. Again, there’s a history to that way of thinking about law; it goes back to the scientification of jurisprudence in the nineteenth century that took place under the rubric of legal posivitism. In the twentieth century, Hans Kelsen is the first person who comes to mind.
Schmitt’s response to this sort of thinking is to call it “space-less universalism,” and to remind us that no concept of law is complete unless we can think it in relation to some or another concrete jurisdiction. If you’re going to think law, you have to think the concrete assemblage—comprised not only of laws but also of technologies, populations, spaces—that together constitute a particular jurisdiction. Dershowitz understands this, and thinks jurisdiction masterfully, but in the worst and most reactive sense possible. His arguments seem designed to appeal to the sort of readers who spend an inordinate, a symptomatically inordinate, amount of time worrying about, for example, sex predators. He’s very skilled, in other words, at manipulating the worst fears of the jury, and in this sense he understands jurisdiction perfectly, but also in the most intolerable way. Against this, Chomsky’s evidence of Dershowitz’s many distortions is necessary but not sufficient. What I find missing in the Chomskyan position is what we find articulated so forcefully, but also so cynically, in Dershowitz: the thought of concrete jurisdiction.
Faced with all of this, the remedy Friel proposes certainly has merit. At the outset of the book, he names that remedy as “respect for international law and human rights abroad and the security mandates [and…] civil liberties at home” (C & D 15). But what we need to do if we are going to realize this remedy is to think more carefully about the spaces where it might concretize. And here I am caused to recall the February 15, 2003 protests against the Iraq War. They were, on the one hand, the largest coordinated demonstration in human history—to my understanding, there’s never been another single protest event that was more coordinated around a single cause on a single day. People massed in hundreds of cities, and a number of cities issued formal declarations against the war. By one measure this was a manifestly ineffective politics, since it failed to stop the war. By another measure, though, I think these demonstrations demonstrated the emergence of a new type of concrete jurisdiction, where the populations of interlinked global cities—Cape Town, Rome, New York, Singapore, London, Tel Aviv—found themselves capable of producing a clear expression of will, that precondition for law, that exceeded the policies of the territorial states that contained those same cities. This will wasn’t nationalist; it wasn’t determined by the institutions and jurisdiction of the nation-state. But it wasn’t spaceless either. It was determined by the concrete political space—the city—where most people in the world in fact live, and that more and more people will in fact live in the future (since globalization is at one and the same time urbanization). Of course, military might is not under the jurisdiction of cities, but the same does not hold for intelligence about how best to use military might: no one today thinks the Iraq War was a good idea, not even Dershowitz. Quite beyond the military issue, whether it’s gun control or the living wage, fossil fuels or education, I’m actually hopeful that the global city could emerge as a jurisdiction that’s concretely capable of hosting the sort of emancipatory politics that’s absent at the level of the nation-state.
Jim Hicks: If cities don’t have armies, they do largely control elections. The number of votes in major metropolitan areas means that they aren’t negligible in terms of their force, and that may be the beginning of a lever.
Amanda Minervini is Visiting Assistant Professor of Italian and German at Salem State University. She has published translations of Giorgio Agamben, Wendy Brown, and Carlo Galli, as well as essays on Saint Francis, Italian cinema, and the work of the philosopher Roberto Esposito. Her essay on the war years of Saint Francis and Pope Francis will appear in MR this fall.
Adam Sitze is Assistant Professor of Law, Jurisprudence, and Social Thought at Amherst College and author of The Impossible Machine: A Genealogy of South Africa's Truth and Reconciliation Commission (Univ. of Michigan Press, 2013). He has also edited, with Timothy Campbell, Biopolitics: A Reader (Duke UP, 2013) as well as Carlo Galli's Political Spaces and Global War (Univ. of Minnesota Press, 2010).
