Wednesday, December 28, 2011

Will he won't he in Iran

American and Israeli animosity towards Iran is at the heart of Middle East politics. It has nothing to do with Iran's nuclear program, which is obviously for peaceful purposes only. The IAEA has found no Iranian violations of the NPT. Anyone with any doubt on this score should read Gordon Prather's articles. So what's going on? To be sure, the US has been hostile to Iran ever since the Iranian Revolution knocked Iran out of Washington's orbit. They encouraged the Iran-Iraq war, in part, to get it back. But that has been a simmering pot for some time. What is the saber-rattling now about? Obviously, the aftermath of the Iraq invasion.

It's not entirely clear what the US intended in Iraq. If the intention was to overthrow Saddam Husein and install a compliant puppet they seem to have intentionally botched the job. The dismantling of the Iraqi army and governmental apparatus at the very beginning guaranteed the disintegration into the present factions. Perhaps that was the real intention all along, a brainless application of the principle of divide and conquer. In any case, Iraq is what Iraq is, a US caused mess and abomination coming apart at the seams. The US, having dragged itself from Iraq, has taken its last shreds of influence with it. Iraq, though destroyed, defeated it. There will be no more US invasions in the Middle East, though the US is not above trying to control the region with drones and proxies.

In the north of Iraq the Kurds vie for what looks like an ever less viable independent state. The American presence, and Iraqi central weakness have allowed the Kurds to get this far. But the Iraqi Prime Minister,  Nouri al-Maliki, has warned the Kurds not to make oil deals. Also, Turkey seems no longer reluctant to cross the Iraqi border to war with the Kurds now that it need not fear bumping into the US military. If the Kurds did form a separate state it is not likely Turkey, given the Kurdish uprising within Turkey itself, would allow the Kurds to use their oil wealth to buy weapons They would need to invade and gobble Kurdistan up. They couldn't sit idly by. So Maliki's warning might not be so unpleasant to the Kurds. Better pro-forma subservience to a weak Baghdad than real subservience to a strong Ankara. Realism should tell them that they cannot break from Iraq without being engulfed by Turkey. And Iran might also invade if it weren't for the United States threatening it with Atomic weapons.

In the south the Shi'ites have beaten the Sunnis and control the government, but which Shi'ites have power? Al Maliki, the Prime Minister, is not westernized like our man Ayad Alawi, or in an case did not spend long periods in the secular west. He seems to be an intellectual who worked his way up in the al-Dawa party. Now Americans think political parties are just people who have grouped together as a strategy for gaining power with no reason for wanting power other than to have it. Yippee, power! That's the American way. But political parties can also be alliances for a way of life, for example, Shi'ism. What kind is al-Dawa? The “Dawa” is the “summons to allegiance” in Shia Islam. It is not a political party though our media call it one to give Americans the wrong impression, or out of sheer ignorance. It is a call, a call to allegiance to Shi'ism. Are they serious when using it? How could they not be? Shi'ism is a pretty much all or nothing thing. That Muqtadā al-Ṣadr can ally with Maliki suggests that Maliki is a “real” Shi'ite. Alliances of convenience can be part of Shi'ism. but, at this point, such an alliance would seem superfluous, and anyway, no al-Ṣadr's style . Both Maliki and al-Ṣadr have spent a long time in Iran and are probably loyal, not to the government of Iran, but to the clerical hierarchy. So Shi'ism, probably real Shi'ism, will be in control both in Iran and Iraq.

Now Shi'ism is, in principle, a rigid hierarchy of clerics culminating in an Imam. Twelver( Iranian and Iraqi) Shi'ites hold that the Imam is in seclusion, but they still have a rigid hierarchy of clerics. This is a very solid structure that does not promise material wealth. For this reason, it is worth mentioning, it is hard to see how sanctions can hurt it.

The US lingers on in Shi'ite Iraq in the world's biggest bunker. The mercenaries who remain in it are mercenaries. They are careful not to hurt themselves and have equipped themselves with a shitload of firepower. They will enjoy hunkering down within the bunker, but they will not venture out . They are not capable of organized military operations. Fear not. They will have plenty to do --they probably have WiFi. Hunkered down with a big mac or two, this apparently large force in the huge compound will have a political influence of zip. It will just be left there to rot so American presidents can look like they still have some sway in the Middle East. Over whom? You tell me.

The only military leverage, or leverage of any kind, remaining to the United States is atomic weapons. A ground invasion of Iran, impossible with the worn out American army, would, in any case, be catastrophic. The world has learned a lot about how to fight invading armies since 2003. Let them in, then slice them up. Pick them apart with IED's, and make them pay beaucoup health care for soldiers with permanent brain damage. Armies are obsolete. Other than executing sponsored assassinations and lighting an occasional carefully-deniable bomb, the US can do nothing against Iran except launch atomic war. For once Iran and the United States are at war, Iran will close the straits of Hormuz and quickly capture the oil fields of Kuwait and probably Saudi Arabia. Oil will stop flowing, and the world economy will spiral down like a smoking jet. A war, even of a few months, will demolish the world economy, and it will never rise again. The US must annihilate Iran immediately, launching WW III, or do nothing.

So after the dust settles, assuming no atomic war, Iraq and Iran will be Shi'ite dominated states and the US will have no leverage other than what it can get from continuing to threaten, less and less convincingly, species annihilation. This does not mean that Shi'ite Iraq and Shi'ite Iran will be tempted to attack Sunni Saudi Arabia and Sunni Kuwait. That might send the US goobermint over the top. But the Shi'ites already within these countries are not likely to remain peacefully in their second class position either. The west, not the natives, made the Middle Eastern boundaries and the Shi'ites in Iraq and Iran will certainly think of other (Twelver) Shi'ites across western made borders as part of their own “body of the faithful.”

Since Saudi Arabia and Kuwait are Sunni family fiefdoms, any yielding to the Shi'ites in these countries is likely to intensify demands from the ordinary Sunnis, too. The ordinary Sunnis wouldn't join the Shi'ites, but might try to turn a chaotic situation into a Sunni “Arab spring” revolution. This is doubly true because Saudi Arabia's burgeoning Sunni population, ever more impoverished, is likely to embrace the “democracy” movements sweeping the area. Saudi Arabia, Kuwait and the little kingdoms around them are not so much afraid of Iranian invasion as of the simple crumbling of their regimes. They must either continue to repress or yield to their own populations, and they are terrified that any yielding will be a sign of weakness. Maybe they are right, but with the US gone they will have no choice.

If they don't, what will they do when IED's start blowing up along Saudi roads? If not for Americans threatening everybody, the Saudis would likely already be in a civil war, and their own Shi'ites would be getting aid from the Shi'ites in Iraq and Iran. The US has several times accused Iran of aiding Shi'ites in Iraq and have threatened to use such cross border supplying as a causus belli. The threat is always atomic war, or in dippy speak, “leaving all options on the table.” The image is apparently of a warlike bureaucrat who has lost his filing cabinet. But how many times can you make the same threat? For that is all the US can threaten now that exhausted, suicidal armies can't scare the Iranians, and Russia, China, and Japan, at least, refuse to employ further sanctions which, even if employed would not shake the hierarchy of Shi'ite clergy that extends down to everybody— in theory, but a long way into the population in reality. For them such suffering is part of the religion.

Saudi Arabia thinks that if it pulverized Iran it might be able to eliminate the domestic Shi'ite threat. Of course they dream they would then go back into Iraq and make it Sunni again. They know that now in any war they will have to face Iran, Iraq, and their own Shi'ites. They would certainly lose without US help, which is no longer there. They, like the US, need the mother of all blitzkriegs, for an Iraq or Iran that would remain intact even for a few days of war would destroy them. Since they haven't the tools, they are jumping up and down demanding that the US blow Iran away. They must imagine that would solve their problem.

Because the US is not quite ready to end the world, they have settled for the destabilization of Syria, a gesture of war with Iran. Since war with Iran, other than world ending atomic war, is impossible, the US must go to war with Iran using gestures. Presto-chango, you have undermined an ally of Iran. Maybe, just maybe, the Iranian government will fall? But it will not fall because Shi'ism promises no walk on easy street. On the contrary, they flay themselves. Suffering will only strengthen them, as anyone who knows anything about Shi'ism could tell you.

We pretend secretly that destabilizing Syria is the first step to war with Iran, as if war needed steps. Of course it does need steps if you want to approach war but not ever fight it. For war with Iran is species threatening and absolutely nutty. On the other hand perhaps the US, knowing the war is nutty, and also that the Empire is kaput without it, hope to be pushed into it so they don't have to choose a nuttiness they want in spite of its species annihilating implications. The layers of denial we hide under are piled high. Then again, perhaps this is part of O'bama's clever wait-a-little-longer before doing anything policy? On the horns of a dilemma, he just settles in. But every day he waits will make pulling out look more and more like an act of weakness. And we wouldn't want that. Rather torch the world.

There are, no doubt, people with real grievances in Syria. Bashar Assad's rule is no doubt harsh, maybe as harsh as it is said, but anyone who has been paying attention to Iraq, Lybia, and Afghanistan knows Syria is letting itself in for a lot of murder, mayhem, torture, humiliation, and destruction if they ever open that can of worms called NATO. Then after that there will be foreign domination or a fight against it. Syria is right next door to Iraq. Many of the Iraqi refugees streamed into Syria. The Syrians saw first hand what happened— girls becoming prostitutes, boys, thieves and beggars, men sinking into despair, women, into street whores, everyone fleeing even worse things. Could any Syrian patriot want that?

Will Assad hold on in Syria? If not NATO backed stooges will vie for power. I am inclined to think they would fail. Anyone tainted with connection to the west in an Arab country will be vilified. We will see what happens in Libya, but that is my feeling. The great plums of US stoogedom have all been picked. Hunger will overcome fear in these populations and they will not tolerate another Muburak. I tend to think Assad will not fall but be strengthened, whatever his faults, given the enormous revulsion at American incursions of the recent past. But if the bomber boys of NATO man their consoles, and keep their cups of ketchup off their keyboards, watch out.

Without being able to eliminate Iran, the US will prove itself useless and unthreatening to Saudi Arabia, and Saudi Arabia, with turmoil growing, will look for help elsewhere. They might think of liberalizing their regime and launching a program of public works, especially in the realm of water desalination. For that they would turn to China, and so will be inclined to sell oil in, who knows, yuan, but anyway in something other than American dollars. For everyone knows dollars are about to blow in the wind and certainly will if Saudi Arabia refuses dollars for oil. Now they selling oil for what is soon certain to be dry leaves they can use only to buy war toys the US makes them buy to protect them from Iran and palace coups. Since the US can't eliminate Iran, and no longer can afford a palace coup, why should Saudi Arabia keep taking dollars? Arms are the last thing they need. Why buy them if the US is no longer a threat to them or Iran, and the only hope is an expensive liberalization? No arms, no need for dollars. The US is a friend to Saudi Arabia the way a mafia Don is a friend to a restauranteur paying him protection. When the Don loses power, the friendship ends.

Without the US hold on Saudi Arabia, “dollar hegemony” is gone. With “dollar hegemony” goes the dollar and with the dollar goes the United States. With the exception of its atomic weapons, the US is now impotent in the Middle East, as it is elsewhere. It's hold on Saudi Arabia is relaxing fast. The Saudis, were they rational, would do very well to stop buying arms and instead use the oil wealth to improve the lives of their people.

The US threat to Iran is no more than the ability to sneak a drone or two (without missiles) into Iran, or to sponsor a saboteur here, an assassin there, or a terrorist group crawling under the wire. They will not overthrow the Ayatollahs like that and Shi'ite strength will grow. The American Sixth Fleet, based in Bahrain, is not really a threat but rather a chip set out on the Imperial shoulder. Knock one of these ships off and prepare for atomic incineration. But why wear such a chip and demand that your enemy knock it off? It is a way to threaten but not go to war, or, again, a provocation to spark a nutty war you want to fight but not to choose. Madness.

In threatening atomic war the US in employing Nixon's “madman policy,” known elsewhere as a temper tantrum. “If you don't give me my way I will destroy everything.” The US government is a two year old. But the threat of atomic war does not compel people to do what you want them to do. It is simply not credible, and even if it were, why acquiesce?The US is no longer able to threaten anyone into obedience. Saddam Hussein acquiesced to everything, but the US invaded him anyway. So why would anyone now give in to US threats? Iran, clearly, has learned this lesson well. We threaten them with atomic war and they go right on doing what they are doing. They only refrain from any overt act of war, that is, knocking off the chip. But why should they go to war? Time is on their side. The threat of atomic war will not influence the Shi'ites and disgruntled Sunnis in Saudi Arabia not to organize politically, and it will not stop Iran and Iraq from aiding them. If Iran stands, Saudi Arabia will fall —to its own people.

In short, to maintain the US relationship with Saudi Arabia, the US must remove Iran, which will offer aid and a refuge for Saudi Arabia's own disgruntled Shi'ites. The US is incapable of removing Iran without initiating world atomic war. So the US hold on Saudi Arabia is broken. Saudi Arabia will turn from the US, and, if they act rationally, from the US dollar, which until now they poured into US arms. Sovereign states, now using dollars to buy oil, will want to unload them. Hyperinflation would then destroy the United States.

What about Israel? Israel really does believe Hezbollah is a threat to it, and Hezbollah has fired missiles into Israel during the most recent Lebanon war. Hezbollah is an Iranian client. So Israel could want to get at Hezbollah through Iran, or at Iran through Hezbollah. But Hezbollah is not capable of invading Israel other than with a secret incursion and immediate retreat, has always acted defensively, and, anyway, Israel has atomic weapons. They could incinerate Lebanon, wiping out Hezbollah and much else. So Israel could, if it had no designs on Lebanon, live with Hezbollah on its northern border in peace with a treaty entered in good faith by both sides. For neither could gain from invading the other. Faced with Israel's nuclear weapons, Iran would not think of invading Israel either. Israel does not border Iran. Iran could gain nothing from a war with Israel. In reality, Iran is not a serious military threat to Israel and Hezbollah, though it is an annoyance and certainly could kill some people, is not a reason to threaten to blow up the whole world. So you don't get along with your neighbor. That's life.

But the Israeli government, with its holocaust thinking, sees any threat, even the smallest, as “existential.” I have no doubt that in Netanyahu's mind Iran truly is a military existential threat. But Israel knows that any attack from it will be considered an American attack and will unleash Shi'ite hell on the Sunnis who control Saudi Arabia and Kuwait. They would be looking at a Shi'ite giant. So he knows Israel, like the US, must attack Iran with nuclear weapons or not at all. That makes human life on earth hang on Netanyahu's sanity or Obama's strength in restraining him. Good luck to us.

However, it is in its questioning of the holocaust that Iran offers Israel the real existential threat. They sponsored a conference about the holocaust and now represent, in their existence, the legitimacy of holocaust questioning. And if holocaust denial, or holocaust revisionism, or even holocaust scholarship were to catch hold, Israel, the Jewish baby that the horrible birth pangs of the holocaust produced, might look illegitimate. The raison d'etre of the Jewish state would be brought into question. What will the Germans feel after having apologized and paid reparations all those years? They had to sit in school to learn how bad they were? What kind of trust will they have in a government that would make them do that if the premise becomes questionable? Holocaust revisionism is a political earthquake just waiting to happen in Germany. Such an earthquake would likely delegitimize a government that had tried to prevent studying it. How far behind would antisemitism be? Denial thrown off would erupt into an orgy of holocaust scholarship that will reveal what it reveals, and nobody can know ahead of time what that will be. The shock would shake Israel all the way back to the patriarchs. Israel might do well to take a step toward making peace with this rather than continuing to war with it.

Iran is an existential threat to Israel and the United States, but not a military existential threat. Iran, unlike Iraq, is a spiritual threat. Iran can make war against neither Israel or the US, has no motive for doing so, and would be a fool to try. Conversely, militarily, the US and Israel can do nothing against Iran but use atomic weapons. But to use military force against a spiritual threat is to declare ones own defeat.

The US and Israel cannot eliminate this threat without WWIII. China and Russia both hope the US will keep its internal disintegration to itself, instead of blowing the world up in an hysterical panic. For the American encirclement of both of them is surly an hysterical panic at a rapid loss of all moral, economic, cultural, indeed all sources of power other than military. What is the point of this encirclement? Are we intending to threaten or actually attack Russia and/or China? Is the US creating of itself the 'doomsday machine” straight from Dr. Strangelove? Is this not hysterical panic?

Both Russia and China, it seems, have decided against further appeasement. Probably the Libya War persuaded them. The UN resolution 273 that the US twisted so violently as to disprove once and for all the possibility of written law, probably made it unmistakable, even to the very last wheeler-dealer wannabe in Russia, that the US intended to retain its world ruler-ship with force. American warships are also strutting up and down China's coasts, and the US is tweaking the Taiwan question. China has a raft of dollars it can float to swamp the US into deep recession any time it chooses. So far it has had no reason to unload them, and continues trade with the US, especially for scrap metal it seems better able to use than we can. But China cannot afford to be cut off from Middle East oil. Were the US to seriously threaten Iran, China could send the US economy down simply by outbidding us for oil with all those dollars.

The US military is right now riding on borrowed money, and we can't really borrow any more. Threatening to make the dollar worthless would be a very effective strategy for China. Since the US keeps threatening and pulling back from war with Iran, Chinas restraint must come not from confidence that they can read the tea leaves of overt US intentions, but some back door assurances. Even so the Libya double cross must make them leary of back or front door US assurances. The desire to hold things together for a little longer, and perhaps fear of an itchy American finger on the nuclear trigger, has kept the Chinese playing their inscrutable game. But the US is going down so fast both Russia and China might fear it will attempt an outright rule by force, and that would mean destroying Iran with atomic weapons.

Russia has put an aircraft carrier at Tartous, Syria that is, like all aircraft carriers, indeed all warships, a chip on a shoulder. An aircraft carrier, easy prey for missiles, is a message that says, “touch this and it's atomic war.” So the threat now goes both ways. China is supplying Iran with surface to air missiles that make any “conventional” attack even more problematic, for they really work but are also a similar chip. Make no mistake. An attack on Iran, and even Syria, will not be contained.

Hope seems to rest upon the United States finding someone intelligent and brave. He won't come out of next year's elections, that is for sure. Since Iran's threat is, neither for the US nor Israel, military, and any military action against Iran is suicide, the US and Israel, rather than ending the world in atomic war, might best consider Iran a reality, and turn their attention to the earthquake this sets off.

The US will lose control in the Middle East and the rest of the “empire of bases.” They will have to abandon them. Dollar hegemony will vanish, and the dollar will hyper-inflate, making it impossible to continue our military adventures all over the place. That's the good news. The bad news is that the American economy is over. We won't be able to afford the gas. With all this clearly in view perhaps we can eliminate the superfluous military-industrial complex and Department of Defense to leave some resources for preparing for the austere future. If we follow the usual American methods we will just let the chips fall where they may, excuse me, I mean, let the markets handle the problem. It cannot work, and will exhaust the resources desperately needed elsewhere. As the economy doggedly fails to reinflate through yet one more debt bubble, a society of desperate street children will challenge every cop in the country. Many of them will have guns, and guns take the manhood out of fighting. But the hope of finding someone with half a brain and two balls who sees this is slim.

As the US withdraws from Europe, Germany's government, throwing off US domination, will find it impossible to suppress holocaust scholarship. Holocaust denial will percolate, and percolate more openly the more Israel tries to suppress it. German children are now taught to be ashamed of the past in school. How could they resist re-examining this humiliating episode if they have some hope it wasn't so? You can be sure this process is already well advanced. I have no idea what the real opinion of the German people is about the holocaust, but repression of all thought and expression can only have inflamed a curiosity hope already fed. There must be an enormous underground distribution of holocaust denial literature. Israel must allow holocaust scholarship to emerge into the open. Whatever the truth here is, let it be revealed. If the holocaust deniers are crackpots, prove it, not with repression and violence, but with scholarship. Any lie about history or suppression of the truth is a blasphemy against or repudiation of the creative God. For what is the creation but what is and was? Anyone who would, with lies, reshape the past into what he thinks ought to be is tinkering with the creation, thinking he knows better than God, and putting himself in God's place. Reshaping history has no place in Judaism, and suppression of discourse flies in the face of the principle of free thought that governs civilized life. Holocaust thinking has turned Israel into a non-Jewish state.

Friday, December 2, 2011

Rules on Rails

Constitutions are laws about the set-up of a community. Like all laws they are supposed to be rules for human conduct. We read the law, and if we are law-abiding, we do what it says. Wittgenstein, in another context, points to a problem:

But am I not compelled, then, to go the way I do in a chain of inferences?” --Compelled? After all I can presumably go as I choose!-- “ But if you want to remain in accord with the rules you must go this way.” – Not at all, I call this 'accord'. – “Then you have changed the meaning of the word “accord”, or the meaning of the rule.” --No; – who says what 'change' and 'remaining the same' mean here? However many rules you give me-- I give a rule which justifies my employment of your rules.

You may think my interpretation outlandish, absurd, ridiculous, but nothing in the written rule allows you to do so. The little marks on the page do not force me to do this or that. How could they? I can insist that virtually any action is in accord with the rules. What prevents me from doing so is convention. “Certainly you can't possibly think that doing THAT is in accord with the law.” The general scorn of others forces me to acquiesce. We have always taken the rule to mean thus and so! But who has always taken it thus and so? How we “always took it” is lost in the mists of time. Writing about that time is just more words on a page, subject to the same mutability as the written laws. What allows the rule to have any affect is a general agreement as to what actions accord with the rule and what do not. But it is not the rule nor any argument about how we have always taken it in the past that forces this agreement. It comes only from a general willingness to agree in the course of life as it is lived now. The rules do not allow us to escape from conventional usage, and our agreement about conventional usage depends upon good will. Someone who doesn't want to agree will find a way not to. Usage is conventional because we agree on it or, in any case acquiesce. Neither the law, nor convention, can force agreement.

People held power without law. How did they do it? Let us take a little excursion. Aristotle, in The Constitution of Athens writes, “The ancient political order that existed before Draco was as follows: The magistrates were selected from the noble and the wealthy.” We might ponder that “selected.” How selected? We tend to think of something like our own elections, but this was a very small group of people who had no media, no airplanes, in short no way of distancing themselves from one another. They were all out in the agora every day. No noble or wealthy citizen of Athens ever moved to another city, so these people all knew one another since childhood. For one reason or another, alliances formed. For one reason or another someone became a leader without actually being chosen in any way. That is the way when kids grow up together. They spoke to one another day after day not in whitewashing telepromptese, but extemporaneously. Everybody knew what shit a guy stepped into five years ago. Everybody knew who was a fool, a hothead, a coward. Everybody also knew who was wise, worth listening to, brave, clever. Everybody knew who would obey whom. And most important, everybody knew who was likely to further the interests of whom. In short a man's human qualities emerged. Everybody already knew who was whom just from having hung out with them for their whole lives. There were no surprise candidates like Barak “Who-the-hell-is” Obama or Mitt “Who-the-hell-is” Romney. Those who held the offices gained the acquiescence of others through their personal qualities that emerged in the course of daily public life over a lifetime. The Greeks called these qualities of excellence virtu.

The noble and wealthy ruled because they could afford a soldier's equipment. The leaders emerged naturally from life lived together, and they ruled the poor by force. The rich owned the land and the serfs paid steep rent or had themselves and their children sold into slavery. To the poor this quality of virtu was no virtue. But they couldn't do anything about it. The poor obeyed out of fear, not because of any law. Those who ruled did so because of their monopoly of military equipment. They were rich because they were tough. They didn't have to explain why they did what they did.

The poor had “no share in anything,” Aristotle says. What kept them down was military force that easily overwhelmed them. It seems like a stable situation, but apparently it wasn't. The problem arose between the very-rich and the barely-rich. The very-rich were the officers in this military city, the barely-rich merely foot soldiers. The very rich exploited the barely-rich too. Sometimes the barely-rich interfered with the plans of the very-rich at which point the very rich might treat them not that much differently from the way they treated the serfs. The loyalty of the barely-rich to the very-rich was shaky. The “Draconian” laws Draco made created a treaty of peace between the very-rich and the barely-rich to assure that the barely-rich would remain foot soldiers in the threatening class war with the poor. For the very-rich needed the loyalty of the foot soldiers if they were to maintain their military superiority. Draco made the ability to supply oneself with a soldier's equipment the criterion for citizenship. But you needed quite a bit more to be appointed to office. He created a council of four hundred chosen by lot from among the citizens. This Areopagus could judge complaints one citizen might have with another. Thus the poorer of the rich could bring complains against the richer. There were other rules that favored the barely-rich-but-rich -enough-for-armor. It gave them a way to protect themselves somewhat against the more powerful.

The very-rich obviously agreed to this set-up only reluctantly, for it deprived them of opportunities to exploit the barely-rich. That was what it was supposed to do. They agreed to it only because they knew they needed the barely-rich against the poor. In other words they agreed to it because the threat of civil war weighed more heavily than their “interests.” If the poor later offered no threat the rich would again use force to take whatever they wanted. The laws would not stop them if they thought they didn't any longer need the less rich. They would reinterpret the laws as they wished. The laws themselves, like all laws, are open to any interpretation, and can only serve as a reminder that civil war looms and compels good will and fairness in interpretation to insure the loyalty of the barely-rich. So the whole enterprise hinges upon incipient civil war and the rather artificial good will this inspires between different naturally hostile classes. The law depends upon the good will of parties who by nature mistrust one another and so harbor ill will. They agree to read the law with a good will they don't really have because of the threat of civil war.

Draco's laws solidified the rule of the rich. By buying the loyalty of the foot soldier it strengthened a repressive force. Aristotle concludes his account of Draco's laws with, “but loans were secured on the person of the debtor and the land was in the hands of the few.” But repressing the poor with force apparently didn't work. Aristotle continues with a report that the common people rose up against the upper class and “the civil discord became violent.”

When that happened they called in Solon. Solon's laws were a second attempt at law, this time to take from the rich and give to the poor to bring the civil war to an end. Repression had failed, so they thought to compromise. The parties agreed to Solon as lawgiver because he was from an ancient family but not that rich. His interests seemed not to lie clearly with either party. From his poetry one gets the idea that his interest is with the community as a whole. Aristotle quotes him:

I observe, and my heart is filled with grief when I look upon the oldest land of the Ionian world as it totters.”

The existence of a citizen, someone who's interest is with the good of the whole, is hereby tacitly acknowledged. By agreeing to Solon they have agreed that it is possible to be a citizen, someone whose “heart fills with grief” when he sees the polis in danger. But all they have agreed to, when they agreed to accept Solon as lawgiver, was the possibility of a citizen. Either side might, at any time, withdraw this sobriquet from Solon himself. Indeed Aristotle mentions this happening, or nearly happening. Solon canceled debts, but some said some of his friends went into debt just before he did so, reaping big rewards. Making a move he said was to help the poor, he actually aided his own interests proving that he put his interests above those of the community as a whole. Apparently Solon weathered this storm whereas some well-known selfish man in his place probably wouldn't have. His reputation pulled him through. But he saw that if he remained he would lose his status as citizen, and the laws would become suspect. For to people, that is to the whole city, who see all human action as self-interested, Solon's actions would seem self-interested too. So he left the city thus preserving his claim to be its one true citizen.

Being a citizen, one whose interest is with the good of the whole, and appearing to be one after having made the laws, are two different things. Was Solon out for himself or trying to do what was best for the city as a whole when he canceled debts? The interests of the rich as a whole are made up of the individual interests of the rich. Although they regularly screw the poor they are not above screwing one another. The rich can use laws that redress the sufferings of the exploited poor, which always take something from the rich, to screw others of the rich by putting themselves temporarily in the position of the poor to take advantage of these laws. Those who knew Solon was going to cancel debts borrowed to the hilt and made a bundle.

Neither the rich nor the poor have any ability to assess Solon's integrity. For both, integrity is a purely theoretical concept beyond their experience. They both acknowledge their self-interest. They choose Solon because he looked like a citizen and the denizens of Athens recognized that the law needed good will to serve its purpose. The words on the page had to have a meaning everyone thought “fair,” and wouldn't have that meaning if written by a self-interested man. Solon wrote laws that definitely benefited the poor. The rich accepted these laws as part of a peace treaty. They had to believe that their sacrifices were for the good of the whole, that is, the peace treaty. They had to believe that Solon was wise and had the good of the whole at heart, even though they had no feeling for the good of the whole. They were making a trade that depended upon mutual good faith, and this good faith would exist because everyone had faith in Solon. For the rest of the city good faith was as unreal as the tooth fairy. Acceptance of and trust in Solon was essential even though what was essential in Solon, his integrity, was beyond everyone else's experience.

So laws are either alliances between rich people with different interests to continue the civil war against the poor, or a peace treaty between rich and poor to end the civil war. One might argue that all laws are alliances of rich and less rich, for there are always people even poorer than the poor. In Athens there were slaves and foreigners, both unprotected by Solon's laws. A citizen lawgiver is important whenever the poor or less rich see that their interests are different from those of the rich, that is when the poor are class conscious. This is often not the case, for it is usually not too difficult to convince the barely-rich that their interests and those of the very-rich are the same. No one seems to have worried about Draco's bonafides. During the last quarter of the twentieth century most Americans thought their interests were the same as those of the very rich. Even the poor thought themselves “entrepreneurs.” Where being barely-rich ends and being poor begins is a matter of opinion. In any case the citizen lawgiver, where mistrust exists, must make the laws and vanish, forcing the inhabitants of the city to think as the citizen thinks in any dispute. The citizen lawgiver is essential when the sides openly have different interests.

So where does that leave our own Constitution? Americans generally imagine the “founding fathers” bubbling over with good will, sitting around a large solid table, and trying with their formidable intelligences to craft or better, “hammer out,” our marvelous system of checks and balances to protect our liberties. But at that time the debate was all about whether or not the Constitution would take away American liberties. For example, here is Patrick Henry, one of the most prominent anti-federalists speaking against ratification.

 “The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others.”

Those who supported the Constitution tried to calm this fear. The complex and ingenious structure of “checks and balances” would guarantee our freedoms, they said. The Articles of Confederation under which the United States actually came into being was a loose affiliation of truly independent states. There was no standing army and the Confederate government had no power to tax citizens and no real way to force the states to contribute. It protected freedoms quite admirably, was nearly broke, and opened the opportunity for foreign powers to play one state against another. The Constitution was a proposal to “form a more perfect union,” that is, cede sovereignty to the federal government. No one, for or against, thought of it as protecting freedoms. Those for the Constitution could argue, at best, that it would not take them away.

During the Constitutional Convention Jefferson was in France. We must remember that communication between France and the US was, in those days, arduous. Jefferson wasn't getting daily reports. Hamilton and Madison were the most important proponents of the Constitution. What were their concerns? The English had remained in the Northwest Territory (Ohio, Indiana, Illinois, Wisconsin and Michigan) longer than they were supposed to, and Spain controlled a large part of the Mississippi. John Jay had been sent to negotiate navigation on the Mississippi and had been humiliated. In fact American diplomats in general had been treated with contempt in Europe. Our founding fathers, who look so dignified and gentlemanly to us, were bumpkins to the incredibly refined European aristocracy. They were made to squirm in the role of the bourgeois gentilhomme. They were looked upon as the representatives of some rag-tag mockery of a country--or so Hamilton and Madison said. In addition in revenge for the revolution the English were restricting American shipping and it seemed war was about to break out with France. With pressure from all these sources some of the states had made private deals with other countries, and the union seemed likely to break up.

Hamilton argued that not only England, France and Spain, but also Holland was a potential enemy of the Confederation. Others thought these threats exaggerated. Jefferson, in France, tried to calm everyone on that score. Here is Patrick Henry again:

We are threatened with danger for the non-payment of our debt due to France. We have information come from an illustrious citizen of Virginia, who is now in Paris, which disproves the suggestions of such danger. This citizen has not been in the airy regions of theoretic speculation: our ambassador is this worthy citizen. The ambassador of the United States of America is not so despised as the honorable gentleman would make us believe. A servant of a republic is as much respected as that of a monarch. The honorable gentleman tells us that hostile fleets are to be sent to make reprisals upon us: our ambassador tells you that the king of France has taken into consideration to enter into commercial regulations, on reciprocal terms, with us, which will be of peculiar advantage to us. Does this look like hostility?....

Do you suppose the Spanish monarch will risk a contest with the United States, when his feeble colonies are exposed to them? Every advance the people make to the westward, makes him tremble for Mexico and Peru. Despised as we are among ourselves, under our present government, we are terrible to that monarchy. If this be not a fact, it is generally said so.

We are, in the next place, frightened by dangers from Holland. We must change our government to escape the wrath of that republic. Holland groans under a government like this new one. A stadtholder, sir, a Dutch president, has brought on that country miseries which will not permit them to collect debts with fleets or armies. 

Patrick Henry tried to minimize every threat Hamilton saw; Hamilton seems not to have believed him. In any case Hamilton had one obvious motive —to shift sovereignty from the states to the federal government-- that would have made him ready to profess fear of whatever the Union would protect against. Hamilton's interest was entirely in creating an unbreakable union with the power to tax and raise an army. Jefferson recounts a meeting (page 96) with Hamilton in which Hamilton expressed his preference for Julius Caesar over Enlightenment luminaries Jefferson admired. He called Caesar the greatest man who ever lived. Jefferson told Washington that Hamilton had asserted that only force and interest could rule men. Unless Jefferson was lying, Hamilton had no faith in the Constitutional Government's complex structure, but went along with it to centralize the government. It is hard not to see Hamilton having used Madison to argue to the other Enlightenment influenced men for the checks and balances where he could not. Henry and Hamilton both fixed their eyes firmly upon who was to control military force. They differed in that each saw the other's preferred result as a disaster.

Hamilton may or may not have believed in the threats he warned of, but he was definitely a patriot, or at any rate thought of himself as one. For he was surely correct about the states going their own way and making independent arrangements with foreign, or simply other, states. Independent states make their own treaties. Hamilton wanted a constitutional monarchy, and his British Plan, introduced at the Constitutional Convention included a “Governor” and Senators elected for life, and state governors appointed by the national legislature. Hamilton was a visionary, a genius, and probably a paranoid who saw a United States mortally threatened during its infancy, but, if protected, growing into a colossus ruled by a Caesar. That was what he wanted to have happen, that is what he believed was best, and that is what has happened.

Hamilton's greatest fear was the nightmare of a continent full of petty states, like Europe. After the introduction his first three entries in The Federalist Papers are all on this subject. Here is a sample of his language:

A man must be far gone in Utopian speculations who can seriously doubt that, if these States should either be wholly disunited, or only united in partial confederacies, the subdivisions into which they might be thrown would have frequent and violent contests with each other.

Madison's primary concern seems to have been Shay's Rebellion that had shaken the Massachusetts establishment. Shay had been in the continental army, had loaned money to the Continental Congress to pursue the war, then had found the Federal Government, without the power of taxation, could not redeem the bonds and they were almost worthless. On top of that when he had returned home he found he had lost his land for debt. He was not the only one thinking he had gotten a raw deal, and many others were also outraged. A rag-tag army of, some said, 30,000 seemed to grow overnight. To Madison Shay's rebellion was the ultimate nightmare. Patrick Henry, on the other hand criticized Shay only for lack of capacity, and Jefferson actually welcomed the rebellion.

Both Hamilton and Madison reflexively thought it was necessary to suppress Shay and his ilk with force. Here is Hamilton:

"Should a popular insurrection happen in one of the confederate states the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound.

“Quell” and “remain sound” are for curing diseases. The Union is the cure.

Here Madison:

The insurrections in Massts. admonished all the States of the danger to which they were exposed. Yet the plan of Mr. P. contained no provisions for supplying the defect of the Confederation on this point. According to the Republican theory indeed, Right & power being both vested in the majority, are held to be synonymous. According to fact & experience, a minority may in an appeal to force be an overmatch for the majority. 1. 15 If the minority happen to include all such as possess the skill & habits of military life, with such as possess the great pecuniary resources, one third may conquer the remaining two thirds. 2. 16 one third of those who participate in the choice of rulers may be rendered a majority by the accession of those whose poverty disqualifies them from a suffrage, & who for obvious reasons may 17be more ready to join the standard of sedition than that of the 18 established Government. 3. 19 where slavery exists, the Republican Theory becomes still more fallacious.

The appeal to force and repression is direct. So it is clear that the American Constitution is a Draconian alliance of the rich for the repression of the poor. Neither Shay, who would have been the proper representative of the poor, nor anyone sympathetic to him, ever ratified the Constitution. That was done entirely within the state legislatures. However, what the Constitution created was something almost new, a Republic, and this threw a monkey wrench into the workings of the rich. For we must remember that it is Patrick Henry and other rich men who opposed the Constitution on the grounds that it restricted their freedom. Henry would never have been in Shay's shoes, but here he was in apparent alliance with him.

The Constitution of the United States created a new body politic where there never had been one. Henry feared that the federal government, once created, would have interests of its own. He conjured up a constitutional tyrant repressing the states. In this he was on the money. Henry, Madison, Monroe, Jefferson and similar others ruled Virginia very comfortably. Their freedom consisted in being able to shape the world around them with others who talked it out with them and acted from a sense of justice. Having to talk to others, equals, face to face, was what kept them honest. That, what they called “freedom,” was what they would lose. Oh they would still be able to talk, but they would not be able to manage the life around them. The federal government, with its ability to tax the citizens directly and raise an army, would be a power all its own which, of necessity, would repress the states and so take away this freedom. The Civil War decided the issue once and for all. Henry was right and he lost.

It is hard to believe that Hamilton, who thought only force and interest could rule men, ever believed in the checks and balances of the constitution. Henry certainly never did. But such constructs of government were all the rage in those days, and it seems almost certain that Madison had real faith in them. The Enlightenment had changed the idea of law to correspond to its new idea of natural law. Natural law, like Newton's law of gravitation, had come to consist of a set of procedures. Each of these procedures when done carefully, produced a predictable result. But Enlightenment men did not think of them as a set of procedures, but as revelations about the laws of nature. Newton's Law of Gravitation gave people license to think we knew how all things worked in the cosmos, for it applied both on earth and in the heavens. We still live with this epistemological commitment. No one noticed that Newton's gravitational formula can describe any eliptical or hyperbolic planetary path depending upon the masses and initial velocities involved. But these numbers were just plugged in to make the orbits what we already knew to be right. The game was circular, but no one was good enough at math to see it. The idea that science examines nature (which is somehow always found in the laboratory) obscures science's real nature as a collection of recipes for operations that, done carefully, produce predictable results. Everybody thought of the Enlightenment as having discovered the real truth about everything. The universe was merely a succession of repeatable procedures. It ran, as it were, on rails. Since such procedures were ideal for producing commodities, the rapid creation of wealth cemented the belief. Mass production here we come, but the idea of life as made up of a complex of rigid procedures, the Enlightenment idea, infected the Constitutional Convention. Belief in rigid procedures —the checks and balances and election rituals-- substituted for belief in the one true citizen, Solon and in his good will, as essential for law's success. The checks and balances, rules for human behavior, could, it was thought, be specified. These procedures would cancel out private interests automatically so that only the interest of the whole would result. Madison specifically renounces and hope for good will in Federalist 10.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The Constitution was, so to speak, Draconian rather than Solonic, that is an alliance of the rich against the Shay and the poor rather than a peace treaty between rich and poor. But it was also Solonic as a peace treaty between the rich and the Federal government. The anti-federalists feared the new body politic itself wold be a constitutional tyrant. Whereas in Greece the poor sought protection from the rich, here the rich seek protection from the government. It is for this that an American Solon was needed. For that Solon we have the checks and balances.

The new Solon was “due process.” The founding fathers counted on the governmental processes to preserve their freedom. Men are self-interested and the best we can do is try to balance these interests so that, in the tug of war, the general interest will emerge. “We are a nation of laws, not of men,” is a description of just this reliance on process rather than good will.

It is interesting to compare the Bill of Rights to other earlier laws. Earlier laws are about who owes what to whom, who had the right to hunt where, who has the right to tax whom, and the like. There is nothing like the right to free assembly or the right to free speech or freedom of the press, all of which seem not to be a question of one person's interests over another's. These are rights one needs to oppose a government structured upon ideas, a government that, supposedly, can be opposed or persuaded through argument. The separation of powers, election of officials, and shortly after ratification, the Bill of Rights were supposed to protect against constitutional tyranny. Many believed it would work. Henry and Jefferson did not. Henry was one of the few who saw no problem with the Articles of Confederation. He believed that free men in the states could protect themselves without such a repressive structure as he saw the new Federal State to be.
This Enlightenment faith in procedure was not only American, but took hold wherever the Enlightenment spread. In France, The Declaration of the Rights of Man is full of principles that are to be secured by law. The Code Napoleon supposedly created the system of procedures for France. This all came crashing down with the Dreyfus affair that I treat with more detail here.

The Dreyfus Affair revealed that the system of procedures could not insure justice and in fact mitigated against it. At the time it was quite clear to everybody. Zola's J'accuse is about how, with the Dreyfus Case, France betrays it's foundation in The Declaration of the Rights of Man. He mentions antisemitism only once. Even Theodor Hertzl, for whom The Dreyfus case was a revelation of eternal antisemitism, saw the case as a repudiation of France's deepest principles. What was so appalling was that to implicate Dreyfus court officials introduced flagrantly false evidence. They went through the motions, the procedures and produced a mockery. Their shameless falsehoods flew in the face of reason itself, but when they refused to withdraw what to any reasonable man were outrageous forgeries, there was nothing within the law to stop them.

Franz Kafka's story In the Penal Colony illustrates perfectly what had happened. In it, the penal colony has inherited a machine for administering justice from an earlier “Commandant.” The machine is the centerpiece for the whole penal colony which is itself a machine meant to run by itself.

We who were his friends knew even before he died that the organization of the colony was so perfect that his successor, even with a thousand new schemes in his head, would find it impossible to alter anything, at least for many years to come.

The colony was a process resistant to human intervention. The machine is designed to operate a set of needles to write the criminals crime on his back in wounds. A tattoo of words kills him. The officer, who runs the show, explains it in French, which the soldier and the condemned man don't understand. Even though the officer tasked with administering the punishment was there at the machine's construction, he does not know how to fix it. Anyway, he can't get parts. The machine is falling apart. No one any longer knows how it was supposed to work. When the officer finally subjects the prisoner to it, it mangles him horribly and writes nothing on his back.

The justice system of the West, set up as a machine for justice meant to run rigidly according to strict procedures, has substituted procedure-following for justice. Supreme Court Justice Scalia's infamous comment reveals this:

"This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged "actual innocence" is constitutionally cognizable."

The quotes around “actual innocence” sets it off against innocence found through the procedures of the law. That he didn't do the crime is irrelevant if the procedures produced a “guilty” verdict. Scalia is not being a monster here unless being a good judge is being a monster. For he is just following what every lawyer learns in law school. The result of the procedures is what matters. All else is juvenile folderol. How the machine was supposed to work no one can tell. It is outside our ken.

The hope that rigid procedure, law, as it were, on rails, could substitute for good will, was vain. Wittgenstein has shown decisively that nothing written can dictate rule-following, even in the most basic case, that of counting. If someone insists he is obeying the rules in following 1000 with 1002 we might banish him from further math study, or even send him to the insane asylum, but what we cannot do is show him where he is wrong by pointing to a rule. For he will insist he is following it. Mathematics works because of a rigid training. It is a tyranny, a tyranny of teachers, not marks on a page. Those who won't or can't obey are thrown out.

Since law is a peace treaty between two classes who have no good will but see ending their hostilities as more important than some of their private interests, both sides want to reinterpret the law in their own favor. If the guarantee for the laws fair interpretation is not good will but some rigid procedure, both sides are free to exercise themselves fully to have things go their way within the letter of the law. The reliance on procedure is a license to pursue self-interest. Since laws do not actually prescribe anything unless there is good will, it is quite easy to manipulate them. For example:

In the United States the use of the phrase "enemy combatant" was used after 9/11 by the Bush administration to include an alleged member of al Qaeda or the Taliban being held in detention by the U.S. government as part of the war on terror. In this sense, "enemy combatant" actually refers to persons the United States regards as unlawful combatants, a category of persons who do not qualify for prisoner-of-war status under the Geneva Conventions.

To circumvent the law one need merely rename someone so that they fall outside the category. Want to circumvent labor laws, rename the workers “independent contractors.” Can't have an office slave? Call her an “intern.” “War?” no, “kinetic military action.” Conversely, if you want to include some entity under the protection of the law, use the same trick in reverse. A corporation is a “person;” money is “speech.” But these are only the most obvious techniques. Techniques are limited only by human ingenuity itself. Perhaps the law has a spirit as well as a letter, but rigid procedures refer only to the letter, and it can be twisted to mean anything. The faith in procedure is misplaced and relieves the parties, especially the rich, of the obligation of good will, essential to the success of any system of law. And thus we see the ever more Kafkaesque government going ever further along the rails as law is piled upon law in the vain attempt to turn human action into procedures done on rails of written language. We imagine these procedures forged of steel but they are woven of cobwebs.