Cuban society today is subject to less criticism for torture or systematic cruelty than the nation operating Guantanamo's concentration camp. American concern for freedom of speech is difficult to believe when readers from many nations may witness my daily struggle against government-sanctioned censorship and suppressions of speech which officials pretend is not taking place or is unknown to them. ("How Censorship Works in America.")
Much of the world is skeptical concerning the genuiness of this U.S. concern with free speech which is seemingly part of a campaign of vilification aimed at China, with many negative articles featured prominently in the paper focusing on Beijing's "human rights failures." Human rights failures that are just as severe (or worse) for which New Jersey is responsible are ignored by the media. The American media's orchestrated silence in reaction to the rape, thefts, destruction of the life of a dissident intellectual living in the city where this newspaper is published -- along with many others elsewhere in America -- makes a lie of these expressions of concern for a single Chinese dissident. ("How Censorship Works in America" and "What is it like to be tortured?" as well as "What is it like to be plagiarized?")
December 9, 2009 at 10:40 A.M. "Is it rational to believe in God?" was vandalized once more and corrections have now been made. Evidently, God is suspected of Communism by New Jersey and Miami Cubanazos. Perhaps Pope Benedict is suspected of affiliations with the Cuban Revolution. ("Havana Nights and CIA Tapes.")
December 4, 2009 at 5:55 P.M. Several essays were altered and corrected, including "Foucault, Rose, Davis and the Meanings of Prison."
December 5, 2009 at 5:00 P.M. to 9:00 P.M. "A Holiday Appeal Will be Made for Class-War Prisoners and for the Freedom of Mumia Abu-Jamal," District Council 1707 Hall, 75 Varick Street, 14 th Floor, Manhattan, N.Y. http://www.partisandefense.org/
December 1, 2009 at 9:40 A.M. Spacing was affected in this essay overnight. I have now corrected inserted "errors."
November 28, 2009 at 2:15 P.M. An advertisement was imposed on this site, against my will: "Harassment Attorneys, Castronovo & McKinney, LLC Free Consultation -- 973.920.7923. CandMLegal.com "
The crude allusion to "Castronovo" ("the new Castro") leads me to believe that clever Right-wing Cubanazos in wife-beater t-shirts, munching cigars, and unshaven (this is only to describe the women) disapprove of this essay. I disapprove of them.
November 27, 2009 at 10:38 A.M. Spacing was affected, but there were fewer "errors" inserted than I expected. Maybe N.J.'s hackers were enjoying their Thanksgiving turkeys, probably at the taxpayers' expense.
November 26, 2009 at 10:00 A.M. This is the essay to infuriate the Cubanoids, who may continue to demonstrate their commitment to freedom of speech through inserting "errors" in these writings. Senator Bob, Dick Codey, and Speaker Roberts will not be in Trenton forever, boys, so make the most of these opportunities. ("Miami's Cubanoids Protest AGAINST Peace.")
July 18, 2008 at 11:32 A.M. After writing the comments that appear below, this essay and several others were vandalized yesterday. I will now attempt to repair the harm done to these works, once again. Please see "Senator Bob, the Babe, and the Big Bucks" and "Does Senator Menendez Have Mafia Friends?"
July 17, 2008 at 10:47 A.M. Once again "errors" not found in print versions of this essay have appeared in the text. It is obvious to me both that such harassment and induced frustration of creative or intellectual efforts are based on the contents of my opinions, and also that they could not take place for so many years without the active cooperation of corrupt local politicians from the Cuban-American community. These people indulge, publicly, in censorship as well as sadism.
Sanctioned censorship is disgusting proof that wherever such low-level political types appear on the scene, democracy and the rule of law are in trouble. I am saddened and humiliated to think that these persons are members of my own ethnic group. I now fully understand some unpleasant things said about Cuban-Americans in the past. I hope that there are many of us who do not reflect these hateful Fascist opinions and tactics. It is possible that these thugs will fail to realize they are alienating their own potential allies and every other decent person in the nation through the use of these tactics. No wonder the Cuban Revolution is thriving by comparison with this opposition. Do you wish to delete another letter from this essay?
February 19, 2008 at 10:32 A.M. "errors" were inserted in this essay. I will continue to correct and re-post it. If you remain passive and apathetic to torture and censorship, along with other evils designed to bring about the destruction or death of any person, then you are complicit in these crimes. This blog and everything that I write in this torture chamber becomes a question for you, the reader, and for America: Will you be a guilty bystander to atrocity?
Religious persons should know that, while I am respectful of religious beliefs, I do not believe in the supernatural. I am sure that there are natural explanations -- even for phenomena that we do not yet understand -- and this includes the natural human inclination for religion and spiritual life.
I.
In discovering a vocation for struggle against oppression, American intellectuals today face frustrating theoretical difficulties. There is a "feeling" (a dirty word in political discourse for some law school graduates is "feeling"), on the one hand, that traditional sources of insight and inspiration for revolutionary struggle, Marxist and anarchist literature, are bankrupt and dated. On the other hand, too much of the best philosophical and jurisprudential work in the United States -- which should be devoted to social justice within the American post-revolutionary and Constitutionalist "situation" -- is made safe and sanitized by coopted intellectuals, whose function is to legitimate the actions of government, whatever those actions may be. Many of these intellectuals (tragically) are law professors; others are judges; still others are journalists or "pundits."
One result of this state of affairs is apathy. Nearly half of all elligible voters in the U.S. are opting out of the process because they feel that elections are a sham, offering few real options among candidates who are essentially identical because they are representative of wealth and corporate interests exclusively. I disagree with this view. However, I understand it. Furthermore, what I do agree with in the so-called "postmodernist disillusion" is the criticism or insight that politics has become -- indeed, it could not avoid becoming -- "show business." ("Colin McGinn's Naughty Book.")
All political dialogue in the future must take account of entertainment values because it will unfold in a media-televisual setting as well as at the level of ideas. The goal must be to avoid sacrificing substance -- by becoming irrelevant or trite -- while remaining serious and contemporary. The challenge of creating a genuine politics of meaning for the future is formidable.
There are two typical responses to this dilemma concerning a loss of political meaning and threats to the status quo: First, the pacifying intellectuals' role is to disarm political theory by the marginalized and oppressed population in America with calls for "patience" and "understanding of the complexities of the situation." (George Will) I am well beyond both at this point in my life. Noam Chomsky is eloquent on the ways in which government intellectuals -- who often gravitate towards media jobs after their "service" -- convince people that "they cannot be involved in [social justice reforms] or foreign affairs because they do not (and can not) understand the 'subtleties' of the situation." Robert F. Barsky, Noam Chomsky: A Life of Dissent (London: MIT Press, 1997), p. 167; and Noam Chomsky, Objectivity and Liberal Scholarship (New York: New Press 2003), p. 13. Second, some radical legal scholars (CLS) suggest that reforms within the conservative, middle-brow culture of the courts and legal academia is impossible because adjudication is too-often a smoke-screen for ideological discourse and a mask for oppression. See Duncan Kennedy, A Critique of Adjudication (Cambridge: Harvard University Press, 1997), pp. 339-379.
I do not accept that American Constitutional theory and law is inherently conservative, or that "maturity" implies accepting necessary limitations on transformative possibilities. I continue to believe in the U.S. Constitution and in the American Revolution. I refuse to give up on the courts, with the possible exception of New Jersey's hopelessly tainted tribunals. Today the real contest concerns the meaning of America and the Constitution for us and the world. I refuse to allow Fascists or a tiny segment of the population in possession of great wealth and power to define the American Revolution and Constitution for the rest of us. A critique of pacification has been offered by Roberto Unger and Cornel West, for example, whose crucial insight (for me) has to do with the atrophy of imagination in American political-legal discourse and debate. This criticism is particularly relevant to liberals and the Democratic party's "pundits":
"A major contention of this book is that Americans should use the tools of institutional experimentalism to rethink and rebuild each strand in their religion of possibility: the hope of social opportunity and mobility for the individual; the hope that practical ingenuity can resolve, one by one, the problems people face; and the hope that under democracy individual men and women can achieve the largeness of vision and experience that less democratic civilizations have reserved for the exceptional few. Our message is that unless Americans prove themselves to be as open-minded about the institutional arrangements of the country as they have been about almost everything else they will continue to find their hopes frustrated. It is not enough to rebel against the lack of justice unless we also rebel against the lack of imagination."
The Future of American Progressivism, pp. 23-24.
Imagination is desperately needed. It is only imagination in our readings of the Constitution today that will make possible the transformations that these thinkers and many others -- myself included -- demand. I am sure that such transformations are possible within the structures and constraints of American governmental institutions. Imagination is connected to emotion and feeling responses ("Soul") that may allow for greater creativity in resolving issues of pressing moral concern in the public sphere.
For an example of the sort of scholarship that is an effort at a Sartrean "totalization" and still a revolutionary work, see Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories, 2003), pp. 60-83. The Jena 6 case should call out for resolution and protest. It should infuriate all of us that such grotesque travesties of justice take place in America. ("America's Holocaust" and "Foucault, Rose, Davis and the Meanings of Prison.")
Senator Obama's candidacy and (now) presidency is inspirational not only because America's language of political symbols is already altered and enriched by Obama's mere presence on the scene, but also because Obama is the only political figure who understands that suffering humanity lives, thrives, or dies on the basis of possibility, what Tennessee Williams describes in "The Glass Menagerie" as the long hoped-for "something" that keeps us going. Ernst Bloch's humanistic Marxism may be brought into relation with the writings of liberation theologians on this question of hope. President Obama is no lightweight on philosophical matters, displaying a theoretical sophistication not equalled by any rival in this election, with the exception of Hillary Clinton in the primaries:
" ... not only art but philosophy -- and especially the latter -- has consciously to bear the responsibility of prefiguration, and the prefiguration at that of an objectively real appearance, of the world of process, of the real world of hope itself. Furthermore, the latter remains uniquely based in matter -- in something that is certainly mobile in a polymorphic and not stereotyped manner; in that-which-is-in-accordance-with-possibility, and as such has a duly determinative effect, and in that-which-is-in-possibility, and as such has a substantively opening effect. To perceive this genesis is the function of philosophy. Its new shape is the dialectically aimed, systematically open, vista into matter as it takes tendential form.
On Karl Marx (New York: Herder, 1971), at p. 43 (emphasis in original).
You can live with almost anything if you still have your future, the future as potentiality. Once that future is taken from you, then you are already dead. Physical disintegration then becomes only a matter of waiting for the inevitable. Persons in such a condition are living in limbo. Prison? Frustration tactics used against me -- insertions of identical "errors" in these essays dozens or more times -- are attempts to take away all that is left to a still struggling and dissenting intellectual, hope. It ain't gonna happen. (Fidel Castro's 'History Will Absolve Me'" and "'The Prisoner': A Review of an AMC Television Series," then "Freedom for Mumia Abu-Jamal.")
The real reason to do such an unspeakably evil action as to "deny hope to the hopeless" is delight in cruelty, unconvincingly rationalized with a patina of political rhetoric. Fascists (like Miami's Cubanoids) believe nothing -- except, perhaps, for the efficacy of cruelty. Keep your eyes on further defacements of this essay. ("Today's Cuban Revolutionaries Are on the Internet" and "Does Senator Menendez Have Mafia Friends?")
The works of Professor Angela Davis should be required reading in U.S. law schools because one of her subjects is the way that racism in prisons -- which is reflected in every aspect of prison life -- is an instantiation of the pervasive and more subtle racism and sexism in society. Much the same is true in courts. There is a substantial literature called "Critical Race Theory" (CRT), which is associated with the work of scholars such as Richard Delgado. I have read several of Professor Delgado's law review articles. However, I do not feel qualified to discuss Delgado's work or CRT, unless I were to spend weeks reading to bring myself up to date. Perhaps that will be a future project.
In America, all major political issues become legal controversies sooner or later -- usually sooner -- which means that the role of courts in important civil transformations that lead to institutional changes (that is, to "new" Constitutional and social interpretations) cannot be overstated. At this point, the obligatory reference is to Karl Marx's early (1843) essay "On the Jewish Question," in Karl Marx: Early Writings (London: Penguin, 1975), p. 211.
We need to transform civil society before meaningful instrumental political reforms, new laws, will be possible or meaningful. This sounds contradictory to the standard law school product ("it's got to be one or the other!"). I am asking you to think dialectically. In fact, I am asking you to think seriously and profoundly. Most importantly, I am asking that you do what you are told not to do in American law schools -- to think originally and creatively about ultimate political and legal values.
O.K., science buffs, try "symbiosis." We need new (non-racist, non-sexist, radically egalitarian) attitudes in society to cope with our more complex world; that need should express itself in new readings or understandings of the Constitution; these new understandings of our Constitutional relations may then lead to more profound changes in society, giving rise (again) to new needs and attitudes. The process will never end. Revolutions are always "unfinished." (See "Manifesto for the Unfinished American Revolution.")
If there is such a thing as a forum in the U.S. where ideas and Dworkinian "principles" (I think I just made up the word "Dworkinian") are SOMETIMES debated, as opposed to pragmatic compromises ("deals") being struck, it must be in law courts and not the legislative or executive branches. As moronic as some legal arguments are, any appellate court is Plato's Academy compared to legislatures and local government. If we hope to encourage a meaningful debate on fundamental moral-political values -- on what America is or means today -- my guess is that it will take place only in the courts and with reference to our always new understandings of the Constitution. Such a debate will be meaningful only if everyone is invited to participate. Jurgen Habermas is a source here, as is Ronald Dworkin's discussion of "The Forum of Principle."
To borrow from Hegel, American law and the courts (heaven help us!) have become the societal equivalent of the third movement in Hegel's dialectic, seeking to make use of some of the best features of the political branches and yet to "do the right thing," in Spike Lee's terms. Law and judges provide the "resolution at a higher stage" of the contradictions of both the executive and legislative branches. If there is to be a hope of resolving these contradictions -- in what is now a viciously divided society -- then it can only happen in the courts, because it is certainly not going to happen elsewhere in government. The political branches are just too responsive to popular pressures and a little thing called "money" to be able to heal the wounds in America's national psyche today. Maybe judges are sold-out too. I said if there is a "hope of resolving these contradictions." The key word in that last sentence is "hope."
The next time you see a judge, walk up to him or her and say: "You are aufheben." Then run. And no, I am not "running" anywhere. Anyone who wants to "get" me, should know where to find me. "What is aufheben? And does it involve a sexual act?" Don't worry, boys and girls, this is not on the bar exam. Compare Walter Dean Myers, Malcolm X -- By Any Means Necessary (New York: Scholastic, 1993) with Mumia Abu-Jamal, Live From Death Row (New York: Avon, 1996).
To suggest that imprisonment of these men -- Malcolm and Mumia -- had nothing to do with politics is absurd. Racism as a motivation for their incarceration is obvious. Given recent incidents of black rage that are all too understandable and the puzzled commentary of experts, a discussion of the conditions bringing about this social reality and response from individuals is desperately needed. I plan to write an essay on this worrisome topic.
Thank goodness that on "Good Morning America" today Mr. Stephanopoulous expressed concern for the homeless by showing a video of a homeless man seeking a job. This concern is so touching and quite rare. The hosts were charmed and amused by the homeless individual's video efforts that produced a chuckle from them.
II.
Aufheben is best defined by Frank Ramsey in his Foundations of Mathematics, pp. 115-116:
"The truth lies not in one of the disputed views but in some third possibility which has not yet been thought of, which we can discover by rejecting something assumed as obvious by both the discussants." ("John Searle and David Chalmers on Consciousness.")
In this sense, judges may yet provide some "truth" for the rest of us. How about this truth? We must never torture or enslave people in America. Robert C. Solomon, "Hegel's Epistemology," in From Hegel to Existentialism (Oxford: Oxford University Press, 1987), p. 17. I am not surprised that, among his first official actions, President Obama listed the closing of the Guantanamo prison. I am confident that, eventually, most of the men tortured at that facility will be released because they were never involved in terrorism in the first place. Those released victims of American torture may now become the terrorists we fear and have made them into. ("American Doctors and Torture.")
Accompanying and introducing this essay, I have provided a picture of a conversation between Ernesto "Che" Guevara -- someone with whom I disagree as to the scope of legitimate State power -- and Jean Paul Sartre, whose work I admire much more. That image was blocked. I have replaced it with another photo of Guevara. This image will also be blocked. My ability to post images, together with my access to MSN has been obstructed. I find myself making the same correction in this essay ten or more times. Frustration tactics? ("How Censorship Works in America.")
This use of images and present focus has nothing to do with whether I agree with Che. It is a protest against censorship and cyberstalking, even when such crimes take place under the protection of corrupt politicians from New Jersey or Florida. I do this mostly to infuriate those members of the Cuban exile community in the U.S. who fail to appreciate what is free speech even as they speak of bringing "democracy" to other places. Efforts by such persons with political protection to destroy these writings are an example of the opposite of democracy. You cannot defeat an argument with brutality and violence or the threat of violence. Threatening me with physical harm is not a response that proves me wrong. In fact, just the opposite. If it is true that my writings are being read in Cuba and that an effort is underway to publish writings that are suppressed within the U.S. in Havana, then I am very grateful for the attention. (One letter was deleted from the foregoing sentence since my previous review of this work.)
In case you have not figured me out yet, as a non-Communist who is a democratic socialist concerned to protect civil liberties, allow me to be clear: There are more important things than living a long life or personal survival, like "speaking truth to power" (Malcolm X) and fighting for what one believes. No one is going to prevent me from doing that. In fact, it is because I claim the right to such FREE speech that I love and live in this society. These beliefs make me "unethical" in New Jersey. You decide who is unethical. ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "Does Senator Menendez Have Mafia Friends?")
You will spend weeks trying to find a single judge in New Jersey who is competent or not a political whore subject to influence by the boss system. Good luck with that effort. Sending off-duty real estate lawyers to threaten me with physical harm will not affect my views or their expression on-line. Inserting "errors" in my writings after attacking my computer will not help you. ("New Jersey's 'Ethical' Legal System" and "New Jersey is the Home of the Living Dead.")
As a critic of human rights violations in Cuba, I have no doubt that I would have been imprisoned or executed if I were on the island in 1960; I also have no doubt that exactly the same would have happened to me under Batista; and if the Right-wing fanatics -- often my fellow Cuban-Americans -- in Miami or New Jersey were to govern anywhere, exactly the same fate awaits me should I be unfortunate enough to find myself in their power.
Publication of my writings in Cuba may indicate a greater willingness to discuss ideas in that society today than exists in Union City, New Jersey. The levels of corruption and complicity with organized crime on the part of Cuban-American politicians makes any hopes for such people ridiculous. Cubans are much better off with what they have than with what such so-called "leaders" in New Jersey or Florida can possibly offer them. This would be a good time to insert another "error." ("Is Senator Menendez a Suspect in Mafia-Political Murder in New Jersey?" and "Is Senator Bob 'For' Human Rights?")
There is no doubt in my mind that New Jersey's legal system and politics are more corrupt and hypocritical than anything in the Cuban system today. The only reason that the tortures and rapes to which I have been subjected by N.J. have not resulted in my fraudulent imprisonment or death is probably public attention. The lowlifes observing these events and doing nothing are as culpable as the cybercriminals. This includes Ms. Milgram and her minions. I wonder why the number of hits at my blogs has not changed? Sabotage? 1 out 3 hits are counted? Or is it less than that? ("Censorship and Cruelty in New Jersey.")
People forget that today's leading Cuban dissident and philosopher, Elizardo Sanchez, is also a self-described "democratic socialist." Professor Sanchez is Cuba's Noam Chomsky. It may be that my experience in the U.S. is worse than what Professor Sanchez has endured in Cuba. My primary emotion in reacting to the daily vandalisms of my writings is embarassment that persons in the Cuban-American community can be so stupid, also that American politicians and jurisdictions can be so corrupt. ("Corrupt Law Firms, Senator Bob, and New Jersey Ethics.")
Cuba is transitioning into a more democratic and open society, despite the attempts to obscure this truth on the part of Cubanazos with political power. I think we should encourage that transition and be a part of healthy changes in Havana now, before we are made more irrelevant by other nations (like China). I refer to changes not only to Cuba's possible future, but also to the destiny of Latin America. Positive change is what matters, not your opinion of Fidel Castro. ("Time to End the Embargo Against Cuba.")
We are being edged out of power and influence in Latin America by other nations whose diplomatic skills exceed our own "tactics" for winning hearts and minds. ("Fidel Castro's 'History Will Absolve Me.'")
I offer the same disdain and defiance to the "puppet masters," pulling strings behind the scenes in New Jersey's smoke-filled and foul-smelling back rooms, where all deals are cut concerning who gets what for next year -- not to mention who steals what in the legal and political system -- right before the hacks go on the judicial bench in order to speak to others of "ethics" and "legality." If you are an American, living anywhere in this country, New Jersey's legal and political system should sicken you. ("Law and Ethics in the Soprano State" and "We don't know from nothing.")
I distinguish between hacks and real judges. The key criteria in making this distinction is fearlessness in upholding the rights of the least fortunate and privileged litigants. Fearless protection of rights is something (sadly) I have not seen lately in many state courts. I say this as efforts are still being made to obstruct my writings. Anybody heard of the First Amendment?
Jurisprudential imagination is desperately needed to reinterpret our great Constitution so that it will address, in a meaningful way, the need for social justice and freedom of a people now burdened with crushing economic suffering and spiritual deprivations. I am referring to Americans.
Only one new "error" since my review this morning? That's good. Spacing between sentences and paragraphs will be altered by New Jersey's whores on retainer. I am thinking of referring to Senator Menendez as "the Prostitute." ("Senator Bob Struggles to Find His Conscience" and "New Jersey Mafia Culture in Law and Politics" then "Abuse and Exploitation of Women in New Jersey.")
What is a spiritual deprivation? Widespread and trendy nihilism, for a start, also denials of education to people who cannot pay for it because too much public money has been stolen by political leeches. Clear enough? Our contemporary "Search for a Method" (see Sartre's Preface, first published as "Search for a Method," in the Critique of Dialectical Reason) in American politics and jurisprudence still comes as news to many judges. Jean Paul Sartre, Search for a Method (New York: Alfred A, Knopf, 1963).
Compassion and some common sense or shared humanity, as well as solidarity with fellow human beings is required from New Jersey's judges, for example, who are often found chuckling and guzzling Champagne at black tie dinners -- provided at public expense -- as persons who are "detained" and not convicted of any offense are tormented by ferocious dogs, beaten, raped and tortured, even murdered in the state's jails, or maybe tortured in their homes. Those who have been tortured or otherwise violated, "for their own good" in New Jersey will not go away. I will not go away. (See "Deborah T. Poritz and Conduct Unbecoming to the Judiciary in New Jersey" and "Jaynee La Vechia and Conduct Unbecoming to the Judiciary in New Jersey.")
Judges are often surprised to discover that they are not universally admired. Ruthless though they can be, judges are mere human beings, "who excrete and yearn," like the rest of us, "suffering sometimes from insomnia and insecurity." (Christopher Hitchens) "They are also vain in the extreme, and often wish to be liked almost as much as they desire to be feared." The intensity of hatred directed at such officials -- often with good reason -- should worry you. No objective observer of New Jersey's legal system will fail to appreciate the impossibility of legitimacy in so corrupt a setting. Persons deserve better that what that terrible place has to offer by way of a court system. The very sight of the people growing rich on taxpayers' money in New Jersey should be revolting to all of us. ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Legal System is a Whore House.")
The cultivation of feelings by judges is not something to be discouraged, but a necessity. There is no non-emotive form of legal cognition. All legal reasoning is evaluative and in that understanding of the term which relates it to public values, therefore, political. This is not to suggest that legal decision-making is "relative," "non-objective," merely "subjective," so that time and effort must be spent pretending that judicial opinions are deductions from a priori premises. The time for the sort of rubric that insisted that: "It is nothing personal," or that "the" law MECHANICALLY "requires" only one result, is over. (Compare "America's Holocaust" with "Driving While Black [DWB] in New Jersey.")
This has nothing to do with whether there is a right answer to each legal dispute. I am arguing for such right answers. Positivist legal analyses are now known -- even by the general public -- to be nonsense. The violation of a person's rights and denigration of any individual's humanity is always "personal." Legal reasoning is merely a branch of political and moral thinking. Nevertheless, it can be objective and yield truths. There is and can be no excuse for New Jersey's jurisprudential reality. ("New Jersey's 'Ethical' Legal System.")
Unlike Rawlsian or Kantian philosophy, legal reasoning is not best thought of as "pure" abstract reasoning because: 1) there is always a specific case to decide (remember the "case or controversy" requirement in Supreme Court jurisprudence?); and 2) there are always relevant and pre-exisiting legal materials to consider. Reasoning in terms of principles that "fit" a tradition (Dworkin, Fried) is indeed relevant at the point when courts seek to elaborate their own answers to legal conundrums in a fashion that renders coherent both particular decisions -- that means "cases" -- and the system as a whole.
Notice, again, that spacing between paragraphs will be affected regularly in this essay by New Jersey's hackers. This is one of their favorite tricks, which they find amusing, despite the violations of the Constitution and copyright laws. ("Have you no shame, Mr. Rabner?")
You still with me law school graduates? I hope so. Ask the philosophy majors for some help, if you get lost. If courts will engage in social legislation for the "public good" (as defined by them), which they may have to, then please do so intelligently, with a frank acknowledgment of the emotive and value basis underlying legal reasoning as well as your "alleged" reliance on authoritative legal materials.
Be honest, if you are a judge, about the politics at the heart of the judicial enterprise. Be welcoming of non-traditional contributions from interested third parties in society, say, parties filing amicus briefs on behalf of the Constitution. Admit your politics and value choices because we can tell what they are anyway. Do not offer a smoke screen for yet another level of obfuscation and denial of legal justice to oppressed masses, who are stuck with the courts as the only protection we have against the abuse of power by government. Do not become only another level of oppression. If there is a jurisprudential or political equivalent of what theologians call a "salvific mission," then it rests with judges in American society. Scary, huh? ("Roberto Unger's Revolutionary Legal Theory.")
Judges must be good at formulating and applying legal principles (requiring an INDIVIDUALIZED focus), at an abstract level, but they must also keep an eye on the policy impact of decisions (which requires a social or COLLECTIVE focus), balancing a need to protect freedom and rights -- which is primary -- with the responsibility to protect the public or common good, that is, to foster social equality. The most important way in which the public must be protected is by having each person's rights guaranteed, individually. If you agree, then direct your demand for both freedom and equality, for justice with civil liberties, to the tainted courts that most need to hear it:
http://www.judiciary.state.nj.us/supreme/images/justices.jpg ("New Jersey's Feces-Covered Supreme Court" and "New Jersey's Political and Judicial Whores.")
In reading the tepid and forgettable legal prose churned out by appellate tribunals in America (which is deemed, for some reason, to be "good" writing in the legal academy) one is struck by the lack of affect and heavy-handed abstractness in discussions of legal controversies that reveal -- to those with the technical training to see it -- the blood and sinews of U.S. society. This revelatory power in case law is something which cannot be admitted by judges. Discussions of the death penalty are notable in this regard. Such discussions focus on everything except race and economic desperation, which is the crux of the issue. Take another look at my citations to the work of the important philosopher of law and politics, Angela Y. Davis and also, "Mumia Abu-Jamal and the Unconstitutionality of the Death Penalty." Francis Wheen, Marx's Das Kapital (New York: Atlantic Monthly Press, 2006). (Law as "instrumental" or superstructural to the economic-power base and also, in postmodernist Marxism, as "constitutive" of social realities.)
One senses intellectual mediocrity and smugness in judges, absence of passion ("isn't absence of passion a good thing?"), and lukewarm commitment to an enterprise that is concerned with life and death, freedom and justice, punishment and redemption. Context is all. To ask for compassion and intelligence from writers of such dismal legal prose may well be a doomed enterprise. Yet there is no alternative. Dispassionate, cool "legal" rationality may be a virtue; inhumanity is not. In confronting Nazi war criminals at Nuremberg, judges did not engage in creative tax accounting, rule-mongering, or policy anaysis, they spoke of justice and freedom, of human dignity, and of what the very idea of law will not tolerate with regard to the treatment of a person. I am not a slave. I am not a laboratory animal. Even minority attorneys who are solo practioners challenging the system should be considered persons. If you will be wearing black robes today, then think of what you have become ... and of what you are supposed to be, even in New Jersey. Get it, Stuart Rabner? ("Stuart Rabner and Conduct Unbecoming to the Judiciary in New Jersey" and "Maurice J. Gallipoli and Conduct Unbecoming to the Judiciary in New Jersey.")
Among the concepts that may be helpful to the sort of argument I am sketching for a revolutionary understanding of legal method, is Professor Unger's work on "deviationist doctrine and argument," as set forth in his essay on CLS. In speaking of the disenchanted "serious law student" with a philosophical and moral-political vocation, Professor Unger says:
"The individual who has undertaken this spiritual itinerary [a life in law] cannot easily regain the faith in a world in which justification comes from the good faith performances of well-defined roles, a world in which the system of roles is itself taken as the outward manifestation of an authoritative moral or even cosmic order. Without either that faith or its successful replacement by the idea of a transformative vocation, work appears as a mere practical necessity, robbed of higher significance or effect. Apart from the pleasures of technical intricacy and puzzle solving, it becomes solely a means to material comfort and an incident, if you are lucky, to domestic felicity or personal diversion." ("Fidel Castro's 'History Will Absolve Me.'")
One either becomes a slave to money and sexual conquests, to status and the grovelling tribute of fellow professionals -- as many American lawyers and judges do -- or one comes to accept a devotion to political change, which is more important than professional status, by becoming a true advocate (maybe for the first time) for those without representation in this broken and wounding legal system. I am thinking of New Jersey. Look at the final paragraph of Unger's essay and visualize that state's befouled Supreme Court, not to mention the Garden State's political bosses (Boss Bob) secretly running the lives of the "little people":
"When we came, they were like a priesthood that had lost their faith and kept their jobs. They stood in tedious embarassment before cold altars. But we turned away from those altars and found the mind's opportunity in the heart's revenge."
"O.K.," my friends in the tax department of a local corporate law firm say, but "is all of this practical"? My response is: Where do you want the argument about fundamental values in America to take place -- because it is certainly coming, given the high level of frustration and anger people feel -- in the streets, violently, with riots? Or would you prefer that discussion to take place in a forum where rationality and persuasion are the weapons of struggle? Let us begin by foresaking violence, censorship, and all attempts at destroying the communicative efforts of others. Has spacing been affected in this essay, again?
I am "for" argument and debate (even feisty debate), just as I am always against terrorism, violence, torture, rape or abuse of any kind, even when it is sanctioned, secretly, by apologists for the State in black robes. Censorship is always wrong. Debate does not have to mean a discussion taking place exclusively in the bland language of privileged, upper middle-class whites (by which I mean all persons, whatever their ethnicity or race, who "choose" such a conformist identity). Rather, the conversation concerning who we are now, as a people, should allow for wit and anger, demonstration and performance. Poetry, literature and philosophy must be welcome at today's debates concerning the politics of the future. ("American Courts Must Not Condone Torture.")
In the choice of companions, I am astonished to find that -- in my forties, when I expected to be anywhere but where I am, much more as I turn fifty -- I prefer the company of oppressed people to that of their oppressors, of the poor (like me) to well-fed and successful "professionals," making the big decisions and staring at their plasma television sets, while wearing black ties or fancy gowns. Maybe wearing both. They say that God or the universe has a wicked sense of humor. I am beginning to believe it. Unger says:
"To live in history means, among other things, to be an active and conscious participant in the conflict over the terms of collective life, with the knowledge that this conflict continues in the midst of the technical and everyday. We teach this by pushing the negative lessons to the extreme point at which they start to become constructive insights."
Unger concludes:
" ... in a world of broken dreams and paper pushing, of abstractions that have long ceased to be living theory and that, once routinized and mutilated turn into the guiding principles or the empty slogans of forms of social practice to which they lend the spurious semblance of sense, authority, or necessity ... The conventional concept of revolution combines at a minimum the notion of basic if not total change in the formative context of routine social life with the idea of more or less widespread participation in the remaking of a social order that the state has temporarily ceased to control. In the ruling traditions of historical and critical social theory and in the vulgar beliefs that these traditions have inspired, [for me, non-violent] revolution [within the structures of American Constitutional jurisprudence] appears as the best hope of real social change, the only clear alternative to the endless reproduction of society through reformist tinkering or to its slow and obscure remaking through the accumulation of an enormous number of largely unrelated decisions and conflicts."
The Critical Legal Studies Movement, pp. 112-114.
Perhaps similar approaches are needed at the international level, not resorts to military invasions or "cruel embargos." (Fidel Castro's latest speech at the United Nations.) This may be an argument for the U.S., finally, to join the community of nations in supporting an International Criminal Court and strengthened human rights tribunals.
Does Cuba support the International Criminal Court? The responsibility for resolving fundamental social conflicts -- in a manner consistent with our deepest values -- rests, first, with judges ... and then, maybe, with all of us. Judges must remember: "No justice, no peace."
