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Review: The Rule of the Clan

Wednesday, April 20th, 2016

[by Mark Safranski / “zen“]

Rule of the Clan by Mark Weiner

I often review good books. Sometimes I review great ones. The Rule of the Clan: What an Ancient Form of Social Organization Reveals about the Future of Individual Freedom  by Mark S. Weiner gets the highest compliment of all: it is an academic book that is clearly and engagingly written so as to be broadly useful.

Weiner is Professor of Law and Sidney I. Reitman Scholar at Rutgers University whose research interests gravitate to societal evolution of constitutional orders and legal anthropology. Weiner has put his talents to use in examining the constitutional nature of a global phenomena that has plagued IR scholars, COIN theorists, diplomats, counterterrorism experts, unconventional warfare officers, strategists, politicians and judges. The problem they wrestle with goes by many names that capture some aspect of its nature – black globalization, failed states, rogue states, 4GW, hybrid war, non-state actors, criminal insurgency, terrorism and many other terms. What Weiner does in The Rule of the Clan is lay out a historical hypothesis of tension between the models of Societies of Contract – that is Western, liberal democratic, states based upon the rule of law – and the ancient Societies of Status based upon kinship networks from which the modern world emerged and now in places has begun to regress.

Weiner deftly weaves the practical problems of intervention in Libya or counterterrorism against al Qaida with political philosophy, intellectual and legal history, anthropology, sociology and economics. In smooth prose, Weiner illustrates the commonalities and endurance of the values of clan and kinship network lineage systems in societies as diverse as Iceland, Saudi Arabia, Kenya, India and the Scottish highlands, even as the modern state arose around them. The problem of personal security and the dynamic of the feud/vendetta as a social regulator of conduct is examined along with the political difficulties of shifting from systems of socially sanctioned collective vengeance to individual rights based justice systems. Weiner implores liberals (broadly, Westerners) not to underestimate (and ultimately undermine) the degree of delicacy and strategic patience required for non-western states transitioning between Societies of Status to Societies of Contract. The relationship between the state and individualism is complicated because it is inherently paradoxical, argues Weiner: only a state with strong, if limited, powers creates the security and legal structure for individualism and contract to flourish free of the threat of organized private violence and the tyranny of collectivistic identities.

Weiner’s argument is elegant, well supported and concise (258 pages inc. endnotes and index) and he bends over backwards in The Rule of the Clan to stress the universal nature of clannism in the evolution of human societies, however distant that memory may be for a Frenchman, American or Norwegian. If the mores of clan life are still very real and present for a Palestinian supporter (or enemy) of HAMAS in Gaza, they were once equally real to Saxons, Scots and Franks. This posture can also take the rough edges off the crueler aspects of, say, life for a widow and her children in a Pushtun village by glossing over the negative cultural behaviors that Westerners find antagonizing and so difficult to ignore on humanitarian grounds. This is not to argue that Weiner is wrong, I think he is largely correct, but this approach minimizes the friction involved in the domestic politics of foreign policy-making in Western societies which contain elite constituencies for the spread of liberal values by the force of arms.

Strongest recommendation.

Federal Court Rules In Favor Of Today’s Children

Monday, April 11th, 2016

[ by Charles Cameron — further education & elucidation in matters scientific and legal are welcome ]
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Tablet DQ generations

**

Full disclosure: Forbes‘ headline in its entirety reads Federal Court Rules On Climate Change In Favor Of Today’s Children — and that’s not a bad intro to the topic of this quite exceptional ruling.

Other reading:

  • Cotchett, Pitre & McCarthy, Victory In Landmark Climate Case
  • US District Court for the District Of Oregon, Kelsey Cascade Rose Juliana, et al v USA, et al
  • Scientific American, Exxon Knew about Climate Change almost 40 years ago
  • Avian Intelligence Ops

    Thursday, February 4th, 2016

    [ by Charles Cameron — with a sideward glance at the rights of dolphins and trees ]
    .

    For your refreshment and edification:

    — while:

    I fully agree with Ohad Hatzofe who says in that second clip:

    Birds and other aninmals, but especially flying animals, don’t know political boundaries, and if there are fences on the ground, to them it’s not a barrier, and we’re to protect them and to treat them as such. The birds are not Israeli birds or Lebanese birds, or European birds passing over our skies; these are this earth’s birds..

    **

    Sigh:

    We are asked to decide whether the world’s cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. We hold that cetaceans do not have standing under these statutes.

    Judge William A. Fletcher

    It looks as though it is past time for birds, dolphins and other creatures to have international legal standing of the kind suggested by Justice Douglas in his dissenting opinion, Sierra Club v. Morton, 405 U.S. 727 (1972):

    The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.

    —and further discussed by Christopher Stone in what is perhaps the only law book I have found it a pleasure to read, Should Trees Have Standing?

    Juxtaposition: Qutb & Bahnsen

    Sunday, January 24th, 2016

    [ by Charles Cameron — edited version, see final para ]
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    SPEC DQ Qutb Bahnsen

    I’ve said before that juxtaposition does not imply eqivalence. It does, however, provide a striking means of raising questions, pointing up similarities where differences are also present and differences where similarities may be more easily discerned — questioning easy assumptions, in other words.

    In this juxtaposition, I want to make it clear that a small subset of Christians (Dominionists or Theonomists, here exemplified by Greg Bahnsen, lower panel) like a highly visible subset of Muslims (Islamists, represented here by Sayyed Qutb) seek the universal imposition of what they believe to be God’s law.

    It is worth noting, btw, that Gregory Bahnsen was a postmillennialist, which is to say he expected, to quote Wikipedia, that “increasing gospel success will gradually produce a time in history prior to Christ’s return in which faith, righteousness, peace, and prosperity will prevail in the affairs of men and of nations.” The dominionist / theonomist movement in which he partakes, in other words, is one which is busy making the world ready for Christ, not expecting him at any moment before that work is done.

    Please note, also, that this juxtaposition does not mean that Christian and Islamic apocalyptic movements divine law movements are “the same” —

    **

    I have now edited this post in light of Joel Richardson’s comment below, and removed the second half of my original post, in which I’d invited Joel to comment, which will shortly to be found in edited and revised form at Juxtaposition: Christian and Islamic apocalypticisms.

    The ROE to Nowhere

    Wednesday, December 23rd, 2015

    [by Mark Safranski, a.k.a. “zen“]

    Many of you have seen the controversial NRO essay by David French on absurdly restrictive rules of engagement that enlisted men and their NCO’s and junior officers have been forced to wrestle with in Iraq, Afghanistan and miscellaneous conflict zones. This is a problem that began under the Bush II administration as the Army and Marine Corps wrestled with pop-centric COIN theory, but ROE became increasingly self-defeating under the Obama administration’s philosophy of micromanaging the world from the White House staff conference room. If you have not read the article yet, here it is with a blurb:

    .

    ….This evening, however, our troopers believed that the car ahead wasn’t full of civilians. The driver was too skilled, his tactics too knowing for a carload of shepherds. As the car disappeared into the night, the senior officer on the scene radioed for permission to fire. His request went to the TOC, the tactical operations center, which is the beating heart of command and control in the battlefield environment. There the “battle captain,” or the senior officer in the chain of command, would decide — shoot or don’t shoot.

    .

    But first there was a call for the battle captain to make, all the way to brigade headquarters, where a JAG officer — an Army lawyer — was on call 24 hours a day, seven days a week. His job was to analyze the request, apply the governing rules of engagement, and make a recommendation to the chain of command. While the commander made the ultimate decision, he rarely contradicted JAG recommendations. After all, if soldiers opened fire after a lawyer had deemed the attack outside the rules, they would risk discipline — even prosecution — if the engagement went awry.

    .

    Acting on the best available information — including a description of the suspect vehicle, a description of its tactics, analysis of relevant intelligence, and any available video feeds — the JAG officer had to determine whether there was sufficient evidence of “hostile intent” to authorize the use of deadly force. He had to make a life-or-death decision in mere minutes. In this case, the lawyer said no — insufficient evidence. No deadly force. Move to detain rather than shoot to kill. The commander deferred. No shot. Move to detain.
     .
    So the chase continued, across roads and open desert. The suspect vehicle did its best to shake free, but at last it was cornered by converging American forces. There was no escape. Four men emerged from the car. American soldiers dismounted from their MRAPs, and with one man in the lead, weapons raised, they ordered the Iraqis to surrender. Those who were in the TOC that night initially thought someone had stepped on a land mine. Watching on video feed, they saw the screen go white, then black. For several agonizing minutes, no one knew what had happened. Then the call came. Suicide bomber. One of the suspects had self-detonated, and Americans were hurt. One badly — very badly. Despite desperate efforts to save his life, he died just before he arrived at a functioning aid station. Another casualty of the rules of engagement.
    .
    Such a system, where brigade headquarters must be consulted by low level patrols or checkpoints before any combat action can be taken is essentially organizational paralysis of the fighting force, an fundamental principle of the art of defeat. What to do?
     .

    If we are to take the premises of the domestic-politics driven ROE imposed on front-line troops by the Obama administration and a pliant senior leadership because they believe that our soldiers and Marines cannot be trusted with even the smallest decisions, the solution is obvious: we could field platoons composed entirely of lawyers. At least until robot soldiery becomes fully autonomous.

     .
    Our newly established ObamaCorps Lawyer-Infantry units would have troops all certified as JAG officers in charge of supervising themselves in decisions to fire. No officers or NCOs will be required since they are effectively expected to defer to a lawyer over the radio anyway, they no longer serve a useful purpose in modern battle.
     .
    We will save time, save money on radios and radio operator positions ( we will have lawyer-pilots to do CAS and lawyer-artillery men to decide on when to bombard the enemy). We can also save money on general officers by drafting retired Supreme Court justices to serve as a Board of Appeal in place of a theater or combatant commander. Should work better than what we do now at least.
     .
    [End rant]
     .
    JAG officers are not to blame for this situation, they are inserted where commanders and politicians demand they be inserted and they must follow orders in interpreting ROE as best they can.  You could remove the lawyers entirely from this process and a SSG or LT having to call up a 24 hour “hot line” to brigade headquarters (!) to talk to staff officer colonels of infantry before letting privates fire their weapon in a normal combat situation remains equally ludicrous and ineffective.
     .
    What the Obama administration has done by incremental steps, aided by a careerist and risk averse leadership, is put American troops under unworkable “police model” warfighting constraints without openly admitting this is their policy goal.  Moreover, the longer these constraints and procedures remain in place, the more institutionalized they become as the new “American way of war” and legal Catch-22 for low level troops is the normal way of doing business.
     .
    Without serious pushback, the risk to troops and tactical harm becomes likely to endure long after the Obama staff apparatchiks leave office.

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