Foucault on crime, truth, confession and justice: Post Seven

On to my seventh post on Mal faire, dire vrai [Doing bad, telling truth], published a few weeks ago by Presses Universitaires de Louvain, based on lectures Foucault gave in Louvain in 1981.  English edition out in December of next year.

The lecture of twentieth May is the last in these series, but there is an interview in this volume, which I will discuss in my next post.

The last Louvain lecture deals with the development of confession as part of the criminal justice system since the sixteenth century.  The story goes back to the medieval Inquisition, that is the activities of the Catholic church in hunting for, punishing and eliminating heretics.  Foucault does not get into the history of the Inquisition, but it starts in the twelfth  century campaign in France against Alibigensians (Cathars), which involved a complete armed crusade against their mountain communities.  Behind these dramatic events, the Inquisition was engaged in methodical work in detaining suspected heretics and torturing them for confessions.  Unpleasant though this was, it did not always involve the extremes of torture, and as Foucault indicates serves as a kind of truth drug.  That is if suspected heretics maintain their innocence despite the pain incurred for a period as a result of not making a confession, then their innocence is confirmed.  Foucault refers to this as a duel between the suspect and the ecclesiastical power.  This takes us back to Foucault’s discussion in his 1977 book Discipline and Punish (Surveillir et Punir) of torture, and even spectacular execution, as a form of duel between suspect or convict and the sovereign punishing power.  The suspect or criminal has the chance to establish some kind of heroism in resistance to pain and death.

The Inquisitorial interest in a confession is the analogue of the confession as activity of the believer.  In both case the confession should bring what is hidden in the depths of the conscience into pubic view and verbalise t.  There is the shared belief of what is hidden deeply, and the same importance attached to the act of confession.  The communication of information is not the dominant concern, which is that the individual participates in the community according to its moral standards and ritualises this.

The work of the Inquisition coincides with the juridificaiton of church and state, so that respect for regular and impersonal rules becomes more and more embedded.  That process is part of the emergence of the modern state as what is strongly sovereign according to civil law, as what is the source of law, judgement and the power to punish.  That intensifies the use of torture by civil courts, who are applying the sovereignty of the central state against its enemies.  The criminal is seen as a general enemy of the prince, the state, and the good of the community.

Enlightenment acts as a counterforce to the interest in confession since it is more concerned with the truth about the criminal act than ritualised admissions of guilt and subordination to the legal authorities.  The element of the confession in criminal justice comes back through the psychiatric discussion of criminal personality.  The starting point is the idea of the compulsive killer, the individual who lacks any responsibility and is just that one thing.  This gives way to a concern with the different forms of criminal mentality, which leads to different kinds of crimes.  There is an interest of this kind in what is going on in the mind of the criminal, and penal codes start incorporating recognition that criminal guilt is reduced, or eliminated, by psychiatric disturbance.  Defining the disturbance requires a psychiatric inquiry into the consciousness of the suspect or criminal.  This has roots in the Christian hermeneutics of the subject, but takes a new direction which is of textual decoding.  In that case we can connect psychiatry, including psychoanalysis with the interpretation of texts in studies of the Bible and in classical philology.  What Foucault does not quite say here is that we move beyond the question of the relation between subjective truth and rational truth which he sees as central to Descartes’ philosophy, and philosophy after Descartes, and might make us think of both Schleiermacher’s hermeneutics, and Nietzsche’s philosophy rooted as it is in classical philology.

The criminal justice system now has to deal with an antinomy between establishing who committed the crime, and the state of responsibility of the person who committed that crime.  If that person was a in a disturbed mental state, then that person may not be considered guilty of the crime.  Foucault begins the lecture with the difficulty of defining the relation between individual, the individual who committed the crime, and the individual who is responsible for the crime.  He ends with the example of a recent French lawyer, who Foucault does not name.  The reason he offers for not naming the lawyer concerned is that the lawyer was a campaigner against the death penalty, so Foucault does not want to embarrass that person given his own opposition to the death penalty (which he takes to include life without parole).  The lawyer was acting in a case of child kidnapping and murder.  His address to the court is that the suspect committed the crime, but we cannot convict the suspect as guilty of the crime without knowing that person.  If we do not known the inner state of consciousness of that person, we cannot find them guilty of responsibility for a crime.  Foucault’s point is that we can never find such knowledge for sure, so we could never convict any criminal if we follow that argument

Carl Schmitt and the Origin of Law

Continuing my discussion of the The Nomos of the Earth by Carl Schmitt. Schmitt refers to mythical material on the origin of law, going from Homer to Giambattista Vico’s 18th Century investigations of myth. His account is of the origin of law in the earth.

Earth contains an innate justice in that it rewards the farmer according to productive effort. This is in contrast with the sea which lies outside law. The Greek word equated with law is Nomos. As Schmitt points out, it does not exactly correlate with law, which is why he uses the Greek word in his title. The Greek word equates with custom and in an even more basic way with appropriation. Schmitt argues that the opposition between Nomos as law or custom and phusis as nature comes later than the sense of appropriation, division and taking.

Schmitt compares this with the fundamental definitions of property in social contract theory. He argues that Social Contract theory is essentially about the definition and division of property. The original Ancient Greek sense of property is linked to the home as in the word oikos divide and protect land. which is at the origin of the word economy, which in Ancient Greek times is concerned with management of the home rather than with cash exchange or a market economy, or a national economy of any kind.

The original appropriation/division of property brings in sovereignty, since it is the state which establishes ownersip rights and the division of labour, and furthermore it is the state which carves out land for a people, and it is states whichThe state and sovereignty exist through land and through the possibility of working on the land.

In an appendix Heidegger suggests that we should abandon appropriation, but this is presumably an ironic way of agreeing with what he takes to be the liberal and Marxist approach to appropriation. Both want to replace the violence of appropriation, with a self-governing of the world of economic things without violence, where wealth is produced through socialist planning or liberal spontaneity, with no need for a political order, or at least the minimisation/separation of liberal order . For Schmitt his still always leaves the problem of division, I presume that at the non-ironic level he thinks that distribution is part of appropriation and that both liberal and Marxist approaches are utopian.

Schmitt conjoins sovereignty, law, labour, land, property, division of property, in an ironic struggle with Marxism and Liberalism which both try to eliminate the struggles within politics.

Hayek, Habermas and Schmitt Together

Friedrich Hayek, Jürgen Habermas, and Carl Schmitt do not look like a group of the like minded. Schmitt was the legal and political theorist who emphasised that law and politics rest on the capacity of someone to make a decision.

Schmitt thought that political theory should take sovereignty as its object not the state. If political theory takes the state as an object, it becomes primarily concerned with the institutional and administrative aspects of the state. He took a critical view of confusion of the state with civil society. Where politics itself engages with civil society, the state becomes one of various pressure groups. The order and unity of the state which is necessary to the exercise of sovereignty is undermined in a pluralist view of the state. Democracy itself is not best represented by the divisive nature of parliamentary politics, since the single ruler is much better suited to representing the majority as a unity, rather than as a divided aggregate of many points of view, where no unified will of the majority can emerge. Politics also contains the dimension of struggle between friend and foe, in which we struggle to defend ourselves against the enemy who threatens our existence. Schmitt considered that to be the basis of international relations. Attempts at world confederation, and world government, can only produce new wars with an enemy who inevitably resists other countries ganging up on it.

Habermas, a Marxist in principle but more of a social democrat/left liberal in practice, condemns Schmitt for reducing international relations to this constant war which leaves no room for the just war that enforces international order. One point at which Habermas raises this criticism is when he writes on the NATO intervention in Kosovo. Habermas does not think this intervention can be fully justified by the international law as it previously existed. The UN charter strongly opposes interference in the internal affairs of member states. Habermas did not write to condemn the Kosovo intervention It is an intervention which refers to morality rather than existing law, it is the intervention based on acting as it there is a global civil society, though it does not yet exist. The intervention was not wrong, it was however a precedent that should not be taken as a precedent. Self-legislating improvement should not be accepted. Habermas talks about being between morality and law, but he is halfway between legalism and decisionism. Some force took the decision to intervene rather than follow international law, and that itself is a welcome intervention There is an Enemy, Slobodan Milosevic who must be defeated regardless of previous law. With regard to internal law and administration, Habermas emphasises the difficulties that arise from social legislation This is inevitably administered outside the apparatus of parliamentary supervision. Increased administration is inevitable for these kinds of programs The regulatory nature of social intervention must come into conflict with the universality of law, democracy is fragmenting ştself.

Hayek, the best know advocate of pure free market and an almost non-existent state, condemns Schmitt, like Habermas, always in passing He appears to be condemned but disappears before he contaminates the surrounding text. Hayek thinks democracy should be limited, or should limit itself, in order to restrict the state to state matters, including the foundation of law, a foundation which must also be an apex. The state should not be interfering in society, it should be protecting its own sovereignty from any confusion about its role. The state is most admired before the establishment of mass democracy, and is most legitimate when defending itself against enemies. There is a strong element of elitism in Hayek, who would like constitutional constraints on democracy to the advantage of property owners. Hayek’s wariness of democracy follows a tradition that goes back to Humboldt Humboldt recommended the free development of the individual after paying very little tx. Humboldt also opposed democracy, because he thought that would lead to increasing social demands on the state. Humboldt thought there should be just a king, remote from and above society. That itself recalls Hobbes. Hayek, and others with similar views, attack Hobbes as a supporter of a strong state. This misses the point that Hobbes thought the only purpose of the state was to leave people to be free in civil society while defending the state against its enemies. Hobbes preferred monarchy to democracy, a monarchy of the sword unconcerned with social questions, but wielding immense force to protect sovereignty within and without.

This is all consistent with Schmitt’s enthusiasm for a separation between the political sphere and the economic sphere. Hayek assumed that since Schmitt refereed to the modern tendency for society and the state to be confused, that he was endorsing that tendency, and saw in the Nazis an ideal aspect of that trend. However, there is no reason to believe that Schmitt supported the Nazis for socialsit or statist reasons. He justified the idea of a Caesar like leader, and the rights of any large nation over its smaller neighbours. That is all. Schmitt was complicit with a totalitarian state, but that should not lead us to the conclusion that totalitarianism was his goal. A post-war speech to business people strongly suggests he though that the state should concern itself with politics without interference from above in the economy.

Like Habermas, Schmitt did not think all war must be founded on existing international law. Like Hayek, Schmitt was suspicious of democracy and particularly of welfarism.
Like both Hayek and Habermas, Schmitt thought that the modern state is fundamentally lost in a contradiction between general laws and administrative bodies which regulate more and more of life.

Gadamer, Nationalism and a Reductive view of Enlightenment and Romanticism

These thoughts come from an MA class from the Methodology course I give for the MA in Political Science in the Department of Humanities and Social Science where I am employed.

Truth and Method famously rehabilitates the concept of ‘prejudice’ as a term of legal process rather than as a negative term referring to a bad opinion based on poor reasoning. The use of ‘prejudice’ as a necessary first stage of a legal process is combined to Germany. Gadamer contrasts German usage with other usages going back to the Latin. What he does not do is consider various contextual issues in history and theory of law: Roman Law and Customary Law (which still existed in Germany in the era of Enlightenment and Romanticism), Roman Law and Common Law (English style law which gives a strong role to judicial precedent and innovation); and all consideration of law not based on a convenient German example. The section on legal hermeneutics has rather more to do with hermeneutics than law, leaving us with Gadamer’s privileged example.

The German orientation is also present in his account of Enlightenment. French and ‘English’ Enlightenment are presented as sceptical in contrast with the historically grounded German Enlightenment. The fşrst point to make her is that the ‘English’ Enlightenment is better described as ‘Anglo-Scottish’ since the greatest figures were David Hume and Adam Smith. Other notable Scottish contributors include Adam Ferguson and Thomas Reid. Looking at the great philosopher in this context, David Hume, scepticism is a strong theme in Hume but it has an end. The end is in the habit, or custom, of the mind which provides a reliable basis for knowledge and ethics, though they cannot be based on determinate knowledge. Custom and habit also exist in history, in the accumulation of science, culture and morality. Something Gadamer could have taken into account.

The Italian Enlightenment is also pushed out of account. Vico is put in his place, by suggesting that he has failed to adopt the Hermeneutic method of moving between part and whole. Vico apparently leaves an unbridgeable confrontation between the individual and history as a whole. Another way of looking at Vico is that he shows the individual becoming more universal through history. Somehow Gadamer overlooks Vico’s work on language, literature and law, which would disturb his extremely schematic contrast between Enlightenment and Romanticism. His presumed sharp separation ignores the way that Enlightenment includes the centrality of sensibility and imagination. These may have been initially conceived in mechanistic terms but that is something that is always breaking down, particularly if we consider the simultaneous development of the novel of sensibility. Gadamer claims that Romanticism is nostalgic, but the Jena Romantic Ironists in some sense invented Modernity as a value. They opposed the sentimental, romantic, modern novel to the naive, classical, antique novel in non-nostalgic terms.

Machiavelli: Republican, Democrat and Lover of Liberty

The Myth of Machiavelli
Another cross over with work on teaching in this blog which tackles the enduring myth of Machiavelli. The myth is of a thought only directed to the celebration of the immoral use of power. In this myth, Machiavelli is the guide to seizing and holding power as an end in itself; and Machiavelli is presented as a diabolical, or at least cynical, exponent of cruelty as the price of power. This parallels the kind of accusations made against Nietzsche (discussed in earlier posts), and rather conveniently from this point of view the course ends with Nietzsche. The intervening figures are Bacon, Hobbes, Harrington, Spinoza, Locke, Montesquieu, Rousseau, Humboldt, Kant, Hegel, Marx and Mill.

Machiavelli and the Case of Nietzsche
This kind of accusation against Machiavelli is not widely accepted at all by those working on Machiavelli. In the case of Nietzsche, there is division between commentators on whether Nietzsche should be seen as an Authoritarian Extreme Elitist focusing on domination by the ‘Overman’, or a Liberal Moderate Elitist focusing on the example for humanity established by the ‘Overman’.

The Machiavelli Critics and their Hypocrisy
The consensus of those who have spent much time with Machiavelli is that he was arguing intellectually, and fighting in life, for Republicanism, Democracy and Liberty. The myth is all the more annoying and all the more in need of refutation. It is significant that Jesuit writers worked hard on establishing that myth. The original Jesuits were completely devoted to upholding church power, and they were much more extreme in their adherence to ‘wicked’ means than Machiavelli. Unlike Machiavelli they thought they acted from divine approval. If anyone thinks this is a harsh portrayal of the Jesuits, they should consult the criticisms made of the the Society of Jesus by that most passionate of Catholic thinkers, Blaise Pascal, in his Provincial Letters (down load text). The tendency for the notoriously power hungry to stigmatise Machiavelli did not end with the Jesuits, Frederick the Great (Frederick II of Prussia) wrote an Anti-Machiavel (download text). Frederick wrote this just before inheriting the throne, an event he celebrated with the invasion of Hapsburg Siliesia. Frederick was an admirable person in many ways, as a sincere adherent of Enlightenment and tolerance, but he was not short of the wish to gain and increase power through any means. Those most devoted to the cynical pursuit of power have a persistent need to scapegoat Machiavelli.

The Twilight of Divine Order
The myth of Machiavelli is not just the creation of those who need to believe in something worse than their own desire for power for what they fondly believe is some higher purpose. The image of diabolical ‘Machiavel’ appears in Christopher Marlowe‘s great Sixteenth Century play, The Jew of Malta (download text). In Marlowe, and others, Machiavelli acquires an aura somewhat like Don Giovanni in Mozart’s opera (as discussed by Kierkegaard in Either/Or I, ‘The Immediate Erotic Stages or the Musical-Erotic’), who fascinates with his relentless immorality and who acquires a kind of moral superiority in refusing to repent even as he is dragged down to Hell. Machiavelli was dismissive of Christianity and openly advocated immorality in the service of the state, but that was an immorality which served the public good and not a diabolical exultation in evil for its own sake. Like other Early Modern thinkers and writers, like Marlowe and Shakespeare, like Pascal and Hobbes, Machiavelli was gripped by the feeling that society could not be built on the foundations of purist morality, and sometimes enjoyed the feeling of emancipation from an all present divine morality. That is not the same as just welcoming evil, as the case of Pascal shows, it can involve great melancholy. For Machiavelli, human self-interest and fallibility is a truth to be grasped without evasion while trying to create the best possible form of political community, the Republic.

The Prince
Niccolo Machiavelli was the author of two great books: The Prince(download here) and The Discourses on the First Ten Books of Titus Livy (download here). The myth of Machiavelli is maintained by referring only to The Prince, and then only in a vulgarised form in which Machiavelli is held to instruct a Prince on how to seize and hold onto power by any means possible, in a spirit of diabolical pleasure at the evil resulting. It is a nonsense to take The Prince in isolation since Machiavelli makes it clear that the book is only one part of his political thought, devoted to principalities. He makes it clear in Chapter Two of The Prince, just two pages into the book that the has written on republics elsewhere. In any case, any remotely careful reading of the book will note two things.

1. Machiavelli wrote the book to encourage an Italian prince to unite divided and occupied Italy, as can be seen in the last chapter, ‘Exhortation to Liberate Italy from the Barbarian Yoke’

This opportunity to provide Italy with a liberator, then, after such a long time, must not be missed. I have no doubt at all that he would be received with great affection in all those regions that have been inundated by the foreign invasions, as well as with great thirst for revenge, with absolute fidelity, with devotion and with tears of gratitude. What gates would be closed to him? What people would fail to obey him? What obvious hostility would work against him? What Italian would deny him homage? This foreign domination stinks in the nostrils of everyone. Let your illustrious family, then, take, up this mission, with the spirit and courage and the faith that inspires all just causes, so that under your standard our country may be ennobled, and under your auspices these words of Petrarch will come true

Valour will take up arms against wild attacks;
And the battle will be short:
for the ancient valour is still strong in Italian hearts.

2. There is the patriotic motivation for The Prince in which a prince will become the instrument to a unified Italy that Machiavelli certainly hopes will evolve into a Republic modelled on that of Ancient Rome.

Even if we concentrate on the advice Machiavelli give this potential unifier of Italy on how to hold on to power, we notice a Republican spirit, in which the ruler must rule in the public interest, shining through.

Chapter XIX
I conclude, then, that rulers should worry little about being plotted against if their subjects are well disposed towards them, but if their subjects are hostile and hate them, they should be afraid of everything and everyone. Well-ordered states and wise rulers have always been very careful not to exasperate the nobles and also to satisfy the people and keep them contented; this is one of the most important things for a ruler to do.

The Discourses
The Discourses are a commentary on the first 10 books of Titus Livy/Livius History of Rome. Livy wrote his history under Augustus in the early years of the Empire, exalting the heroic era of the rising Republic. Machiavelli wrote a commentary on Livy, because the Republic of Rome was his model of Republicanism, Democracy and Liberty. Machiavelli referred to a mixed constitution of monarchy, aristocracy and democracy rather than democracy, but that was the closest thing to Liberal Democracy as we understand it within the thought of the time.
Some of Machiavelli’s chapter headings in Book One really tell us what we need to know: ‘What kind of Events gave rise in Rome to the creation of Tribunes of the Plebs, whereby that Republic was made more Perfect’; ‘That discord between the Plebs and Senate of Rome made this Republic both Free and Powerful’; ‘How Necessary Public Indictments are for the Maintenance of Liberty in a Republic’. These alone are enough to tell us that Machiavelli valued: the Republic, the representation of the poor in the political institutions of the Republic, open struggle and conflict between groups of citizens as strengthening the power and freedoms of the Republic, rule of law and the subordination of all citizens equally to law is a foundation of Republican liberty.
Let us have one quote from Chapter 4 to confirm those impressions

The demands of a free populace, too are very seldom harmful to liberty, for they are due either to the populace being oppressed or to the suspicion that it is going to be oppressed, and, should these impressions be false, a remedy is provided in the public platform on which some man of standing can get up, appeal to the crowd, and show that it is mistaken. And though, as Tully remarks, the populace may be ignorant, it is capable of grasping the truth and readily yields waht a man, worthy of confidence, lays the truth before it.
Critics, therefore, should be more sparing in finding fault with the government of Rome, and should reflect that the excellent results which this public obtained could only have been brought about by excellent causes. Hence if tumults led to the creation of the tribunes, tumults deserve the highest praise, since, besides giving the populace a share in the administration, they served as the guardian of Roman liberties, as we shall show in the next chapter.

James Harrington: English Republican and Follower of Machiavelli

Harrington was a Seventeenth Century English Republican in an era of political struggle and excitement about conflicting political ideas. Despite the anathemas thrown at Machiavelli, Harrington studied him and drew inspiration for his own development of Republican theory for his own time. Let us confirm Machiavelli’s real influence on political ideas through a quote from Harrington’s master work A Commonwealth of Oceana (download here).

The Preliminaries, showing the Principles of Government
[…] government (to define it de jure or according to ancient prudence) is an art whereby a civil society of men is instituted and preserved upon the foundation of common rights or interest, or t (to follow Aristotle and Livy) it is the empires of laws and not of men. And government (to define it de facto or acording unto modern prudence) is an art whereby some man, or some few men, subject a city or a nation, and rule it according unto his or their private interest; which, because the laws in such cases are made according to the interest of a man or of some few families, may be said to be empire of men and not of laws. The former kind is that which Machiavel (whose books are neglected) is the only politician that hath gone about to retrieve […].

A Note on How a Major Conservative ‘Liberal’ Thinker Needed to Stigmatise Machiavelli as Wicked

One major Twentieth Century political philosopher, Leo Strauss, (a major influence on Neo-Conservatives) stuck to this prejudice. In his Thoughts on Machiavelli, Strauss sticks to the interpretation of Machiavelli as ‘wicked’, which is a consequence of Strauss’ adherence to Ancient Philosophy, particularly with regard to the place of Natural Law. That is Strauss resisted any tendency to think of the state, and therefore politics, as grounded in anything other than Natural Law. Natural Law is itself a phrase with many interpretations, but what Strauss was referring to was the idea that all humans can and should arrive at the same basic morals and laws through use of reason, because laws are based on an objective eternal order. He was drawing on a rich tradition rooted in Plato and Aristotle, and in Muslim, Christian and Jewish readings of Ancient Greek philosophy.
Strauss’ claim that Machiavelli broke with the Natural Law tradition is not controversial, and neither is his view in Natural Right and History that modern political thought is premissed on a separation between laws as they exist historically and natural law increasingly seen as an abstract ideal. Given that modern political philosophy, along with modern thought about law and ethics, has turned away from Natural Law towards more empirically and historically conditioned understanding of political principles, the identification of Machiavelli as uniquely wicked is a mischievous attempt to undermine modern political philosophy as opposed to the supposed eternal truths of Plato and Aristotle. A rhetorical trickery is used in which Machiavelli, as represented in a common place misunderstanding, is used to undermine Machiavelli and all modern political philosophy. Nietzsche is also used and misused in this way by Strauss. He uses a fundamentally cheap and misleading argument resting on prejudices about diabolical Machiavelli and Nazi Nietzsche, mixed up with pretensions to calm dispassionate universal reason, to instate Plato, as the beginning and end of political philosophy. Various references to Aristotle essentially serve the idealisation of Plato. In this way, Strauss is able to define himself as a ‘Liberal’ with an essentially ultra-conservative argument, a strangely familiar way of arguing. Strauss thought that philosophical truth is gained through an ‘esoteric’ reading of Plato and his Medieval interpreters, that is a reading according to Strauss’ eccentric search for hidden meanings. In accordance with this, Strauss accepted democracy but thought the rhetoric of democracy was a cover for the rule of the those enlightened to Straussian standards. Even though they essentially regard democracy as an instrument of the ‘wise’ ruler, Straussians in US politics are remarkably keen on a universalist crusade for democracy. The consequence is an enhancement of the power of the state within the US and in the hegemonic claims of the US in the world system, to an extent which shocks many traditional conservatives used to doctrines of the limited state and prudent self interest in international relations.

The Preventable Death of Hrant Dink: Ultra-Nationalist Hysterics and the Political Leaders who Have Appeased Them

End the Appeasement of Ultra-Nationalism
Repeal Article 301 and all laws which Criminalise Political and Historical Discussion
Push the Ultra-Nationalists into the Political Wilderness
State and Political Leaders must totally Separate themselves from Ultra-Nationalism

The fourth post I wrote for this blog was on the ‘The Nationalist Upsurge in Turkey’
where I emphasised the harassment of Hrant Dink, through the courts and outside court buildings through the despicable campaign of hatred mounted by hysterical ultra-nationalist lawyer Kemal Kerincsiz. I certainly do not accuse Kerincsiz, or other leaders and manipulators of ultra-nationalist hysteria, of connection with the murder. I do accuse them of creating an atmosphere of hysteria through their harassment in a country where political violence has been all too frequent. In the context in which which extreme political divisions have led to violence, including murder, the possible consequences of Kerincsiz’ hysteria campaign is all too obvious. He is guilty of knowingly, deliberately and calculatingly, creating an atmosphere in which the chances of Dink’s murder was increased.

I emphasised in my earlier post that Kerancsiz’ hysteria campaign was being tolerated by the state and by the mainstream political parties. Kerancsiz is a member of the ultra-nationalist Nationalist Action Party; though the party has cleaned up its act in the last 10 years, under the leadership of Devlet Bahceli, after a long period of involvement in political violence, they did nothing to restrain Kerincsiz. Though they did not directly endorse his hysteria campaign, they have clearly benefited from the atmosphere of hatred and tension raising that Kerancsiz has created.

When the AKP (a conservative party rooted in Islamism which now defines itself as Conservative Democrat, on a Christian democratic model) came to power, the new Prime Minister Recep Tayyip Erdogan was greeted by many liberal-left intelligentsia in Turkey, and by many foreign observers, as a great reformer and enemy of the hard core statist-nationalist old guard in Turkey. Where has Erdogan been in opposing Kerancsiz? What was done to stop Kerancsiz from turning the court room and the court steps into a theatre hatred and hysteria? What did Erdogan, Prime Minister and leader of Turkey’s largest party, do against this? Nothing. Does Erdogan wish to repeal article 301 of the Penal Code, criminalising ‘insults against Turkey, which was used against Dink and many others? No. Article 301 gives legal and state sanction to idea that the individual can be punished for criticising the nation. It is fundamental to the hysteria campaign of Kerincsiz who frequently uses it to bring prosecutions. It’s time for Erdogan to behave like a modernist conservative democrat, and not just try to talk like one.

The largest opposition party in Turkey is the Republican People’s Party, a social democratic party which is a member of the Socialist Internationalist. Has it demanded the repeal of 301? No. Have they opposed ultra-nationalist ideology? While many members of the party are consistently opposed to ultra-nationalist hysteria, leading members have endorsed intolerant attitudes, for example on the question of a free discussion about the 1915 deportation and massacre of Armenians. It was Dink’s insistence on claiming that this should labelled ‘genocide’ that started his troubles. I’ve always argued against such an interpretation, but it is a question to be settled by free discussion. The laws, like 301, which criminalise free discussion, have contributed to the atmosphere in which Dink was defined as an enemy of Turkey who deserved to be murdered. When I meet RPP members, they like claim the party is a modernist party based on human rights and political freedom. The time has come to act, not just talk. Has the RPP leader, Deniz Baykal opposed the Nationalist Action Party? No, he is seeking to bring them into a coalition government. Has he condemned Kerincsiz? No. Has he demanded the repeal of 301? No.


Those who committed the murder are very likely rather pathetic individuals, people who know very little about Turkish politics, and even less about the world outside Turkey, except the ‘knowledge’ that Turkey has enemies who ought to die. Probably people from low income and low education backgrounds dependent on god fathers and distributors of patronage who fill them with ultra-nationalist fanaticism. They have probably seen all kinds of injustice in their life, and are conditioned to blame it on national enemies, traitors, and liberal appeasement, no doubt aware that many liberals and liberal democrats, on the centre right and the centre left, in Turkey are part of a system of patronage and corruption. However pathetic, they must pay for what they have done. However, if all that happens is that they get life in prison, nothing will have been achieved to improve Turkey. The pseudo-nationalists will have won, they will have preserved and entrenched a system of patronage, clientalism, favouritism, corruption, mafia criminality, and protectionism which keeps Turkish people poor but enables the people at the head of these activities to be rich. I’ve met some radical left and democratic people in Turkey who deny the problems of corruption in Turkey. These are people who benefit from party patronage, or from well intentioned international subsidies for NGOs, the problem is not just with the stereotypical ultra-nationalist apes, it is also with apparently civilised, intellectual and democratic people. All the people who benefit from these distortions find that distributing patronage will create loyal and pathetic clients, very likely the status of those who murdered Dink. The real planners will have kept themselves distant of creating tension within Turkey, and between Turkey and the international community. The international Armenian lobby has already jumped onto the murder of Dink, though Dink strongly criticised Armenians who put anti-Turkish lobbying above positive action to improve Armenian conditions, in Armenia itself and for Armenians everywhere. While we must sympathise with the sincere horror that Armenians throughout the world will feel at this murder, we must note the risk that this will turn into a campaign of ant-Turkish hysteria creating further nationalist hysteria in Turkey. The godfathers will have succeed in their gaols unless…..


The political and state leadership in Turkey has announced its intention of bringing Turkey up to international standards with regard to political freedoms and human rights. They have failed to do so. They have failed to challenge ultra-nationalism. Leaders must must accept responsibility for the atmosphere in which Dink was murdered. They must atone. Public opinion and leaders of all kind must see this as the moment to make a definitive break with ultra-nationalism and to to make the rule of law, freedom of speech and tolerant democracy supreme.

We shall attempt to raise our national culture above the level of contemporary civilization. Therefore, we think and shall continue to think not according to the lethargic mentality of past centuries, but according to the concepts of speed and action of our century. We shall work harder than in the past.
Kemal Ataturk, Speech on the 10th Anniversary of the foundation of the Republic of Turkey

Philosophy. A Note on Lévinas, Putnam, Nozick and Derrida

Robert Nozick between Athens and Jerusalem.

Is he right to think Ethics is Greek or Jewish?

I was recently reading quickly through Robert Nozick’s Philosophical Explanations, a copy I borrowed from an office I use somewhere I gave one course in the last semester, while giving an exam on Derrida. Much to my surprise noticed a reference to a contrast between Greek and Judaic ethics. That created an unexpected link between Nozick and Derrida, since the idea of Greek versus Jewish philosophy, or culture, or ethics, is something that Derrida considers carefully in a long essay on Lévinas, ‘Violence and Metaphysics’, collected in Writing and Difference . The context in which Nozick introduces the distinction between Greek and Jew, is the difference between ethical ‘push’ and ethical ‘pull’. The push is Greek, and refers to the concern in Ancient Greek thought with cultivation and flourishing of the self, in an ethics which is based on the balance and health of the self. The pull is Jewish, according to Nozick, and comes from the Old Testament, or what Nozick calls the Hebrew Bible. It is the pull of ethical law, the obligation to follow commands of the kind handed down to Moses as the Ten Commandments.

Where did an Analytic philosopher like Nozick come up with this? How does a philosopher who usually avoids cultural context, and comes from a way of thinking which regards cultural and historical context as highly secondary to philosophical argument, come up with this historical-cultural generalisation? Nozick gives thanks to his Harvard colleague Hilary Putnam in the acknowledgements section. We don’t expect cultural-historical generalisations from Putnam either, but Putnam did make one major departure from concentrating on Analytic philosophy. Two of Putnam’s texts refer to Emmanuel Lévinas, whose work took European philosophy since Kant as its departure. Lévinas’ work is full of allusions to Hegel, Husserl, and Heidegger and belongs to the French Phenomenological work of Sartre and Merleau-Ponty. Where did Putnam refer to Lévinas and what was that about?

Putnam refers to Lévinas in ‘Lévinas and Judaism’ which can be found in The Cambridge Companion to Lévinas edited by two notable commentators on European Philosophy: Robert Bernasconi and Simon Critchley. Putnam’s essay is rooted in Putnam’s strong Judaism, I am not sure if he is a believer, but then I could say the same about Lévinas who was a Talmud teacher for children as well as an academic philosopher. The point is that Putnam takes Lévinas seriously as an expositor of what Judaic religion is. Lévinas ‘ s philosophy, most famously in Totality and Infinity, rests on a distinction between Greek Ontology and Judaic Ethics, the latter rooted in the Torah, the “Hebrew Bible” and the tradition of study of it. Greek Ontology takes the ‘Same’, that is the Ego or the Self, as primary; Jewish Ethics takes the Other as primary. Putnam briefly but significantly refers to Lévinas’ views on Ontology and Ethics in Ethics without Ontology.

It looks very much like Nozick got the ex-cathedra judgement that the ethics of Obligation from Lévinas via Putnam. He very probably did not consider Derrida’s critical remarks. Like Nozick, Putnam and Lévinas, Derrida was Jewish himself. I won’t recapitulate Derrida’s argument here, I will just note some problems in equating Greek Ethics (often known as Virtue Ethics) with Self-Cultivation and Jewish Ethics with obligation. One obvious point is that the Biblical Jews were following the commands of the God of their nation rather than abstract obligation as such. Their ethical commands are clearly located in the rules and taboos of antique eastern Mediterranean society. In any case, how can we locate obligation in a purely Jewish origin? Nietzsche who contrasted Roman master morality, meaning Greek Virtue Ethics, with Judaic Slave Morality, meaning the ethics of obedience to God, also located the origin of ideas of other worldliness and abstract morality in Plato, even as Plato developed a version of Virtue Ethics. Nietzsche clearly though that Old Testament morality was tied to Jewish national identity, and regarded the morality of obligation as Christian rather than Jewish. Christianity meant the teachings of the historical Christ as interpreted by St Paul, the converted Jew, from the point of view of Neo-Platonist philosophy.

Heidegger certainly thought of the early Greek ethics, as an Ethos which preceded ethical rules, abstraction and obligation in the way of life as it was lived. Ethical obligation arises in Heidegger from a turning away from Being, something that is phenomenal for Heidegger, towards law outside Being trying to dominate it, that law came from Plato.

Some philosophers have regarded Old Testament Jewish ethics as an extreme example of an ethics of obligation. Hegel presents Judaism as excessive in its sense of obligation, in comparison to Christianity, a view he supports with reference to the story of Abraham and Isaac. Kierkegaard looks at the story in a more favourable way, though his interpretation is a critique of obligation which argues that the story shows the necessity to will the unethical in obligation to God, and that ethics can only be properly rooted in a self-relation which becomes a relation with the absolute externality of God.

Kierkegaard argues for an alternative to the ethics of obligation by looking to the self which has to live with the paradox of ethics founded on following an absolute, subjectivity and God at the same time.ş Kierkegaard classifies Kant’s ethics of pure obligation with the Greek following of Ethos of the community, as both examples of following external rules and universality, instead of the paradoxical unity of particularity and universality in absolute subjectivity.

Of course in recent decades a wide variety of thinkers have sought an alternative to obligation ethics in Greek Virtue and flourishing: G.E.M. Anscombe, Michel Foucault, Martha Nussbaum amongst many. Nussbaum though distinguishes between an emphasis in Aristotle on luck and fragility as opposed to the abstraction of a rule obeying moral self in Plato.

Nozick’s attempt to distinguish between Greek and Jewish cannot be upheld, though he uses it with great force for establishing a central ethical tension.