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A few questions for our esteemed leader

#40: Nov. - Dec. 2007 (Non-Fiction)
irishrose

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Mad wrote:I got a little bullied in jr. high, but that's because I was smaller than everyone else until about 10th grade. And even the guys that bullied me one week would be my friends the next.
And how did that make you feel? BTW, I'll send you a bill at the end of the calendar year.
So reading the dialogues is pretty baggage-free so far as philosophy goes, and very free of jargon.
And that's probably why I've gotten through some of Plato. As for your not holding my lack of interest (which is probably more of a lack of discipline than interest) in reading philosophy against me, thanks. Though you probably have plenty of other fodder as far as that is concerned.
Something, in other words, that necessitates the temporary cessation of the normal behavior of government and requires some other kind of behavior, possibly even something criminal or immoral.
Yeah, I'm not extrapolating the temporality requirement from the text. I'm not reading "extraordinary circumstances" as rare because they are confined by a specific time, or state of emergency. I'm reading "extraordinary circumstances" as rare because they happen only in the most unusual of circumstances, but a state can live in a perpetual threat of those circumstances. And I'm not finding anything in the text to contradict my first assumption, so I'm going to stick with it for the moment. (Please note, I'm not trying to argue anyone to that point, because there's also nothing to concretely demonstrate that Arendt isn't talking about temporary states of emergency.)

Anyway, sticking with my first assumption, let's drop the capital punishment because I think it's muddying the waters. (Mad, you're aware that when I was talking about capital punishment I meant on the federal level, used in cases of treason or other crimes against the state? I'm not talking about executions on the state level, essentially as retribution for a murder crime.) For the moment, let's go with the Guantanamo example. Isn't it possible to easily imagine that such civil violations will continue indefinitely? In reality, they already have. The United States have, for upwards of five years, incarcerated people who have never been granted a trial. Thus, even without the U.S.'s rather lenient incarceration laws, I think "according to normal standards" these would be considered criminal acts. The U.S. has shown no intention of making this a temporary measure. The laws have been approved more than once by its legislative branch; and the judicial branch is proving to be ineffective in trying to deal with it. (Not that much of the current judiciary cares to nowadays.) What's to prevent the U.S. from declaring that this is how it will indefinitely handle cases involving defendants who pose a terroristic threat to the U.S.? And, really, would that change the claim that it is an act of state for Arendt? It would still fulfill the "extraordinary circumstances" category, wherein not all defendants are relieved of their habeas corpus rights, only those who in the extreme cases pose a terroristic threat. It would also fulfill the criminal means requirement, that would not be justified under normal circumstances
irishrose

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Mad wrote:I got a little bullied in jr. high, but that's because I was smaller than everyone else until about 10th grade. And even the guys that bullied me one week would be my friends the next.
And how did that make you feel? BTW, I'll send you a bill at the end of the calendar year.
So reading the dialogues is pretty baggage-free so far as philosophy goes, and very free of jargon.
And that's probably why I've gotten through some of Plato. As for your not holding my lack of interest (which is probably more of a lack of discipline than interest) in reading philosophy against me, thanks. Though you probably have plenty of other fodder as far as that is concerned.
Something, in other words, that necessitates the temporary cessation of the normal behavior of government and requires some other kind of behavior, possibly even something criminal or immoral.
Yeah, I'm not extrapolating the temporality requirement from the text. I'm not reading "extraordinary circumstances" as rare because they are confined by a specific time, or state of emergency. I'm reading "extraordinary circumstances" as rare because they happen only in the most unusual of circumstances, but a state can live in a perpetual threat of those circumstances. And I'm not finding anything in the text to contradict my first assumption, so I'm going to stick with it for the moment. (Please note, I'm not trying to argue anyone to that point, because there's also nothing to concretely demonstrate that Arendt isn't talking about temporary states of emergency.)

Anyway, sticking with my first assumption, let's drop the capital punishment because I think it's muddying the waters. (Mad, you're aware that when I was talking about capital punishment I meant on the federal level, used in cases of treason or other crimes against the state? I'm not talking about executions on the state level, essentially as retribution for a murder crime.) For the moment, let's go with the Guantanamo example. Isn't it possible to easily imagine that such civil violations will continue indefinitely? In reality, they already have. The United States have, for upwards of five years, incarcerated people who have never been granted a trial. Thus, even without the U.S.'s rather lenient incarceration laws, I think "according to normal standards" these would be considered criminal acts. The U.S. has shown no intention of making this a temporary measure. The laws have been approved more than once by its legislative branch; and the judicial branch is proving to be ineffective in trying to deal with it. (Not that much of the current judiciary cares to nowadays.) What's to prevent the U.S. from declaring that this is how it will indefinitely handle cases involving defendants who pose a terroristic threat to the U.S.? And, really, would that change the claim that it is an act of state for Arendt? It would still fulfill the "extraordinary circumstances" category, wherein not all defendants are relieved of their habeas corpus rights, only those who in the extreme cases pose a terroristic threat. It would also fulfill the criminal means requirement, that would not be justified under normal circumstances
MadArchitect

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irishrose wrote: (Mad, you're aware that when I was talking about capital punishment I meant on the federal level, used in cases of treason or other crimes against the state? I'm not talking about executions on the state level, essentially as retribution for a murder crime.)
No, I didn't infer that distinction. I'll have to think a little more about how that changes the circumstances.
For the moment, let's go with the Guantanamo example. Isn't it possible to easily imagine that such civil violations will continue indefinitely?
They could, yes. But at some indefinite point during that continuation, it will be possible to make the argument (and difficult to deny it) that civil violations of that sort are not longer exceptional, and represent rather the normal course of American jurisprudence. That is, they will no longer serve as justifiable criminal acts, but will simply stand as law. It would ultimately represent the reversal of legality as we previously recognized it. The acts-of-state argument recognizes the criminality of the acts in question, but argues that they're necessary in order to maintain the very legal structure that brands them as criminal. What we're seeing with Guantanamo, I worry, is the subtle erosion of that legal structure, and its replacement with a new, more permissive legal structure.
Thus, even without the U.S.'s rather lenient incarceration laws, I think "according to normal standards" these would be considered criminal acts.
Right, but I think it's important to note that the criteria for "normal standards" are the recognized legal conceptions of the acting state itself. So Guantanamo is only qualifies so long as it stands as an exception to a legal structure that would normally, and will presumably continue to, disallow the sort of behavior being practiced there. If the manner of dealing with civil rights exemplified by Guantanamo turns into perpetual practice, then I'm not sure that there would be any meaningful sense in which we could talk of it as an exception to normal standards -- it would have become the normal standard.
What's to prevent the U.S. from declaring that this is how it will indefinitely handle cases involving defendants who pose a terroristic threat to the U.S.? And, really, would that change the claim that it is an act of state for Arendt?
I think so. Isn't that precisely what she's arguing in her second point about how the Nazi acts-of-state argument fails to fit the underlying theory? Acts of state are, as she defines them, criminal from the perspective of that state's legal framework. If the U.S. legal system approves what we would previously have regarded as civil rights abuses, then those abuses are no longer criminal, and no longer conform to the acts of state theory.
By drawing a comparison between acts of state by "sovereign governments" and those by totalitarian governments, whether those acts are temporal or perpetual, is Arendt accepting acts of state in the one and not the other?
Can you point me to the distinction between sovereign governments and totalitarian governments, so I can see the context? All I see from page 38 and 39 is a distinction drawn between fascist and totalitarian dictatorships.
So to use our Guantanamo example, would Arendt see such measures by the U.S., even if they are argued to be temporary, defensible as an act of state?
I'm not even sure that Arendt is arguing in favor of the acts-of-state defense. It's a defense recognized among nations as valid, so she may simply be discussing whether or not, given that provisional validity, the Final Solution would qualify.
irishrose

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Mad wrote:Right, but I think it's important to note that the criteria for "normal standards" are the recognized legal conceptions of the acting state itself.

Ta-da! Take a bow good sir, there is our point of contention. I wasn't reading Arendt's "normal standards" as applying solely to the acting state. I thought she was speaking more universally. So when she says that the Nazi government's executions of German citizens were criminal according to "normal standards," she is speaking directly to German standards and not say Western European standards? I thought she was speaking universally (which I know can only be applied as universal to a specific culture) because she was essentially discussing the legal defense as applied to a case before an international court. But I'll concede that normal standards meant normal German standards.
Can you point me to the distinction between sovereign governments and totalitarian governments, so I can see the context?

Top of p 38 (second full sentence): "Now, the theory behind the formula of acts of state claims that sovereign governments may under extraordinary circumstances be forced to use criminal means because their very existence or the maintenance of their power depends on it..." And this is essentially where my ultimate question lies.
I'm not even sure that Arendt is arguing in favor of the acts-of-state defense. It's a defense recognized among nations as valid, so she may simply be discussing whether or not, given that provisional validity, the Final Solution would qualify.
No, not in favor. I don't even think "acts of state" itself constitutes the bulk of her discussion. But, and correct me if I'm wrong, the way she sets up the discussion, arguing against the reason of state theory for totalitarian governments, specifically for the Nazi government, she seems to be accepting as inevitable the reason of state argument with regard to "sovereign governments." Now she does introduce a possible caveat when describing acts of state, saying that "they are presumably sovereign acts over which no court has jurisdiction" [emphasis mine]. I think in noting the presumption, Arendt is introducing the idea that it is not necessarily something with which she agrees. But the matter is not pursued and she moves on to rebutting only the reason-of-state argument with regard to totalitarian governments, never again addressing the matter among sovereign governments.

And to put the denouement of this specific train of thought on page so we both have the an idea of where this is going: this seems, to me anyway, to contradict the rest of Arendt's thesis. Is this rational because it applies to a state rather than an individual? I've read Arendt's essay as a criticism of the individual for not upholding Socrates's argument. And though I think it's unreasonable to expect a state to prefer to suffer harm than to do harm, I don't think it's unreasonable to find it necessary to rebut the reason-of-state argument in every situation. Assuming acts of state require the state to engage in some sort of criminal activity, how can we just dismiss it as inevitable in sovereign governments? Arendt, not two pages before, argues that the position of choosing the lesser of two evils is a tool that a totalitarian government uses in order to garner compliance. Well isn't that exactly what accepting acts of state for sovereign governments entails
MadArchitect

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irishrose wrote:Take a bow good sir, there is our point of contention. I wasn't reading Arendt's "normal standards" as applying solely to the acting state. I thought she was speaking more universally. So when she says that the Nazi government's executions of German citizens were criminal according to "normal standards," she is speaking directly to German standards and not say Western European standards?
I thought that might be where the breakdown was occurring. I'm interpreting to some extent, but I think it unlikely that an author as pre-eminently practical would assume some abstract yet objective notion of normal standards. So yes, I think it entirely likely that she means relative to the normal standards asserted by the state itself. Naturally, I might be wrong on that point, and if you or anyone else can point to some passage in the text that draws that interpretation into question, I think it worth discussing.
Top of p 38 (second full sentence): "Now, the theory behind the formula of acts of state claims that sovereign governments may under extraordinary circumstances be forced to use criminal means because their very existence or the maintenance of their power depends on it..." And this is essentially where my ultimate question lies.
Gotcha. I'm certainly open to other points of view on this matter, but it seems to me that Arendt has no intention of drawing a distinction between sovereign states and totalitarian states, per se. That is to say, they are not mutually exclusive. The sovereign rights of a totalitarian state would still be recognized by other states because there is, so far as I can tell, no universal standard for determining a state's right to sovereignty. Essentially, if a state can manage to stay intact, it's sovereign. At least, I don't see anything in Arendt's essay that would lead me to suppose some other principle is at work. She does, on the next page, draw a clear distinction between a fascist dictatorship and other forms of dictatorship -- namely that fascist dictatorships rarely exhibit any contradiction between the acts of government and the legal code, mostly because legality is defined according to the will of the dictator. By definition, the will of the dictator is law, so it is literally impossible the dictator to engage in a criminal act. That isn't necessarily so with other forms of dictatorship, particularly when you're dealing with a totalitarian dictatorship that seeks to conform with an ideal -- eg. Maoist communism.
But, and correct me if I'm wrong, the way she sets up the discussion, arguing against the reason of state theory for totalitarian governments, specifically for the Nazi government, she seems to be accepting as inevitable the reason of state argument with regard to "sovereign governments."
Tomorrow (ahem, later on today) I'll try to go back and review the broader context, but I thought that the point of bringing in the acts-of-state argument was that it demonstrated the difficulty of maintaining a sense of personal responsibility vis-a-vis notions of legality and criminality. The context can change so swiftly that entire populations can be made to accept what was previously regarded as criminal to suddenly represent the pinnacle of conformity to the law.
But the matter is not pursued and she moves on to rebutting only the reason-of-state argument with regard to totalitarian governments, never again addressing the matter among sovereign governments.
Part of the reason, I suspect, is that a government that acted in the way she describes would automatically stand as a candidate for categorization as a totalitarian government. So bringing in a discussion of how these same objections would apply to other forms of government (I think she'd probably contrast totalitarian governments to republics or democracies or simply liberal governments, rather than sovereign governments) would be a bit superfluous. At least, that's how I interpret the essay.
I've read Arendt's essay as a criticism of the individual for not upholding Socrates's argument.
This isn't to say that one reading goes more to the heart of the essay than another, but I read it as an exploration (taking the term "essay" in its original sense) of the question of how humans, as contingent, socially oriented beings, can be expected to exhibit personal responsibility in a context that militates against it.
Well isn't that exactly what accepting acts of state for sovereign governments entails
irishrose

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Mad wrote:I thought that might be where the breakdown was occurring.
Well, dammit, then why didn't you just say it? j/k
I'm interpreting to some extent, but I think it unlikely that an author as pre-eminently practical would assume some abstract yet objective notion of normal standards.
But in the context of an international legal proceeding, those notions wouldn't be entirely abstract would they? In fact that's what made me just assume from the start that "normal standards" refers to, essentially, European standards, rather than German standards. But I definitely think I misconstrued that.

Actually, I think I really read too much into the whole section. It just took me 97 readings, and this entire thread to realize that. I thought by criticizing acts of state in totalitarian governments, Arendt was essentially accepting acts of state in all other non-totalitarian governments (which is what I meant by picking up her use of the term "sovereign" governments). That is, of course, a concern in the U.S.'s current climate, which we touched on a bit, and which is why I had such a problem with how I had interpreted the passage. Now I see Arendt was really more saying: the acts of state and reason of state arguments ignore how monstrously they can be abused
MadArchitect

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irishrose wrote:But in the context of an international legal proceeding, those notions wouldn't be entirely abstract would they?
That's part of why international legal proceedings are so difficult to justify. There is no broadly accepted set of standards by which to judge the actions of a sovereign nation, and most attempts to establish normative standards have failed -- not because some panel failed to come up with any, but because there's no practical way to insist that anyone conform to them. That's a problem that Arendt deals with in more depth elsewhere -- a more profitable examination of those problems is offered by E.H. Carr's "The Twenty Years' Crisis", and it seems to me that their points are largely consistent.

That leaves us with a couple of options -- by which I mean, historical precedents. One is to envision a higher court of authority, which, as I read it, is essentially what some post-war tribunals did by coining the notion of "crimes against humanity." We can set that aside at the moment, I think.

Another -- and this is the one that I think Arendt has in mind here -- is to try a sovereign state for breaking its own laws. Whatever degree that is effective depends largely on the state's unwillingness to contradict itself. That's largely because self-contradiction is a threat to one's claim of sovereignty.

I'm not sure I can really talk about why that's so without talking a little about how sovereignty works as a principle, so forgive me if what follows in this paragraph is old hat for you. Basically, states recognize one another's sovereignty because they want their own sovereignty recognized. And part of what motivates any given state to protect another is their desire to preserve the validity of the principle of sovereignty. If someone were to really set a precedent by making it politically possible to set aside sovereignty, the whole system of relationship between modern states would have to change. That's part of why a great many of the nations in the U.N. -- few of whom had any love for the Baath regime -- objected to the U.S. invasion of Iraq. Even if regime change in Iraq was good for most everyone, setting the precedent of ignoring sovereignty at one's convenience threatened a status quo that it was in everyone's interest to observe. So you protect the sovereignty of others (according to certain criteria) in order to preserve the principle that obligates others to observe your own sovereignty.

Certain forms of behavior can potentially invalidate a state's claim to sovereignty -- in other words, can free others from the obligation of recognizing sovereignty in that state's instance -- but they're not always determined by the considerations we'd like them to be determined by. Thus, having part of your industry reliant on slave labor may exclude you from membership to the U.N., but no one's likely to deny your sovereignty over that issue alone. Encroaching on another state's sovereignty is one invalidating act (as when Iraq invaded Kuwait and was in turn confronted by the U.S.); self-contradiction sometimes constitutes another.

If I understand Arendt properly, the acts-of-state argument serves as an exception to this. If a state violates its own legal principles, it may risk the censure of its sovereignty in the eyes of other nations. A consensus on the matter could be fatal. But if the state in question can convincingly argue that it's only being inconsistent (unjust) in order to preserve its ability to resume consistency (justice), then it may warrant a pass on the matter.
That is, of course, a concern in the U.S.'s current climate, which we touched on a bit, and which is why I had such a problem with how I had interpreted the passage.
Which may be why you assumed Arendt had something similar in mind. It happens all the time. I'm sometimes re-read books and am shocked to realize how a change in my own context makes it obvious that the author was talking about something significantly different from what I initially supposed.
I let myself get mired in the minutiae of this one section; oddly enough, I knew it was happening as it was happening.
That's really easy to do with Arendt, so don't kick yourself over it. The sub-arguments that contribute to her total argument are often so involved that it's not at all difficult to lose sight of the wider context.
Thanks for sticking with me through this though.
No prob. Talking it through helps me clarify my own thoughts on the essay, so it's worthwhile all around.
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