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For the term "vaclav".
Vaclav Havel: Concluding Thoughts

Vaclav Havel: Concluding Thoughts

It’s been a joy visiting here at Concurring Opinions again – thank you to the Co-Op crew for the opportunity. I’m going to take my leap month early this year and consider this January 32nd so I can finish up the Havel posts. Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin? Havel did what he knew best: he sat down to write, in this case not a play or essay, but a constitution. Havel was the principal architect and drafter of the Czech Charter of Fundamental Rights and Freedoms. As in the case of much of Havel’s writing, it is striking in its parsimony. Much of the bitter history of totalitarian and post-totalitarian society is starkly if implicitly revealed in each articulated principle: Democratic values constitute the foundation of the state. The freedom of thought, conscience, and religious conviction is guaranteed. The inviolability of the person and of her privacy is guaranteed. A person’s dwelling is inviolable. It may not be entered without the permission of the person living there. Only a law may designate which acts constitute a crime. Censorship is not permitted. Everyone who suffers from material need has the right to such assistance as is necessary to ensure her a basic living standard. Everyone has the right to the protection of her health. Everyone has the right to education. Everyone has the right to demand that her human dignity be respected. A few final thoughts on Havel: He was not anti-communist. He was horrified by the effects of a system, created by and embodied through individuals, which had encouraged people to avoid two fundamental and ultimately inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. He did not ultimately seek a political revolution, but rather an existential one. The type of existence he imagined was incompatible with post-totalitarianism, so a political revolution would be an inevitable by-product of that existential revolution in post-totalitarian states. But Havel’s critique was hardly limited to communist post-totalitarian regimes; it applied with equal force to capitalist, democratic systems, if such systems encouraged people to avoid their two fundamental and inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. In particular, Havel saw in the consumerist West a dangerous phenomenon: individuals attempting to sate themselves through by material satisfactions, to shirk moral responsibility to themselves, each other, and for the actions of their state. Havel saw that the he need for an existential revolution in such a society is just as great, and perhaps as inevitable, since people probably cannot withstand...

Vaclav Havel, Part VI: Havel Na Hrad (Havel to the Castle)

Vaclav Havel, Part VI: Havel Na Hrad (Havel to the Castle)

Vaclav Havel was released from his longest prison term in 1983. He was hospitalized for the following month – a fact which alone speaks volumes about the conditions of his confinement. The Czechoslovak regime had tried almost everything it could to silence him, to no avail: internal exile, censorship, constant surveillance and harassment, imprisonment with hard labor, glittering offers to emigrate – nothing worked. In retrospect, they should have just killed him. They were afraid to do it – in fact, he was released from prison because they thought he was about to die in their custody – because the treatment of dissidents all over the world was, for the first time, being closely monitored internationally under the Helsinki Accords. (In fact, the International Helsinki Foundation was headed by a Czech exile – Karel Schwarzenberg, who eventually became one of Havel’s closest advisors and is currently the Foreign Minister of the Czech Republic).  Havel and the other Charter 77 leaders had been shrewd enough to frame their dissent as a celebration of the Helsinki Accords — but it also reflected their fundamental commitment to human rights. Totalitarian regimes had signed the accords to assure their survival – borders were recognized, aid made available. They did not know it, but they had sown the seeds of their destruction by agreeing, as an afterthought, to tie aid to their treatment of human rights advocates. They could not kill Havel and get aid, so they had to gamble: take the aid and try to control Havel, or kill him and try to survive without the aid. They let him live and lost. As much of Eastern Europe began to open up following Mikhail Gorbachev’s ascension to power in the Soviet Union, the Czechoslovak regime went in the opposite direction: it cracked down especially hard, much harder in fact than neighbors such as Poland, Hungary and East Germany. Repression increased in Czechoslovakia as it decreased elsewhere. Havel was arrested and imprisoned yet again. Arrests and searches grew more frequent, which caused some despair among the Charter 77 leaders – but not Havel. He recognized the increasing repression as a sign of weakness in the regime. It was growing afraid because its grip on power depended more and more upon the exercise of its own brute force, since the Soviets had made clear that this time – unlike 1968 – there would be no military invasion. Students began holding illegal demonstrations and were beaten and arrested. But as totalitarian regimes began to fall around them, more and more Czechs and Slovaks were emboldened to speak out. Released in late 1989, Havel and others formed an umbrella organization, the Civic Forum, that newly emerging dissident organizations joined. As demonstrations increased in late 1989, the regime reacted violently. The revolution in Czechoslovakia is universally called the ‘Velvet Revolution’ but it was only soft in comparison the bloodbath that was feared. You can see it for yourself here, and it is well worth watching. When the Civic Forum called for...

Vaclav Havel, Part V: Prison, Torment and Temptation

Vaclav Havel, Part V: Prison, Torment and Temptation

Immediately after the Charter 77 Declaration was released, Vaclav Havel was arrested. At first he underwent daily interrogations at Ruzyne Prison and was released each night; by January 14, they stopped letting him leave. As I discussed in the previous installment, Charter 77 had painted the regime into a corner by couching its declaration as a celebration of the commitments the regime had made under the Helsinki Accords to respect human rights. The regime couldn’t very well prosecute Havel for agreeing with it, so they officially charged him with smuggling documents out of Czechoslovakia that were published abroad – including, of course, the Charter 77 declaration. Havel found this first period of imprisonment particularly difficult. He had not yet learned how to deal with daily interrogations, and discovered that by trying to engage his interrogators in conversation he had given them ammunition against himself and other Charter 77 members. You can see Havel discuss how he learned to deal with interrogations here. After several months, Havel mentioned to his interrogators that he planned to resign as spokesperson for Charter 77 (the position was meant to rotate); the regime publicly announced that Havel had renounced his role in the group and released him as proof. Havel was humiliated and disgraced, but he recovered his bearings and began to work with the dissident group (and a second he co-founded – the Committee for the Protection of the Unjustly Persecuted or VONS — even more energetically than before). The Czechoslovak secret police constantly watched and tormented the dissidents. Policemen literally followed Havel everywhere he went at all times – not secretly, but openly, within an arm’s length of him. They demanded identification from anyone he talked to; they walked with him when he walked his dog. The secret police took over the property immediately next to Havel’s house and built a watchtower on it, from which they watched him at all times. They smashed his car windshield, then arrested him for driving with a smashed windshield. They planted listening devices throughout his house and repeatedly raided it, taking any documents they could find. Dissidents were beaten and arrested. Repeatedly they were grabbed off the street; sometimes they were taken for interrogation, sometimes they were driven out into the countryside in the middle of the night and kicked out of the car, to find their own way back. Many dissidents escaped into exile (often with the eager agreement of the regime). Havel and a handful of others refused to budge. And yet, despite the regime’s best efforts, Charter 77 and VONS survived. Havel and others occasionally managed to slip from the regime’s grasp as they became skilled in subterfuge. They smuggled out documents that were published abroad. Most amazingly, the Czech dissidents actually managed to meet clandestinely with Polish dissidents from Solidarity and KOR, who were living under martial law at home.  They met in the mountainous forests on the border between the two countries. The Czech regime soon realized that merely tormenting Havel and...

Vaclav Havel, Part IV: The Influence and Importance of Jan Patocka

Vaclav Havel, Part IV: The Influence and Importance of Jan Patocka

Three members of the Charter 77 group were identified in its first declaration as its spokespeople: Jiri Hajek, a former member of Alexander Dubcek’s ill-fated reformist regime; Jan Patocka, a retired sometime professor of philosophy; and Vaclav Havel.  Today I want to write a little bit about the importance of Jan Patocka to the Charter movement generally, and specifically as an influence on Vaclav Havel. Jan Patocka was the first casualty of the Charter 77 movement. He died following a brutal marathon interrogation in March 1977, two months after he was first arrested. Because Patocka was killed at a time when many of his works were still banned from publication, his importance as a philosopher – quite apart from his work with Charter 77 – was not as widely known as it might have been. Fortunately, his students collected and preserved much of his work. He is now recognized as a major figure among European philosophers of the 20th century. The vast majority of his work was entirely apolitical; or rather, was political only in the sense that individual responsibility for moral behavior is eventually, inevitably political. Patocka was a student of Edmund Husserl’s in Freiburg, Germany in the early 1930s, as the Nazis came to power.  He returned to Czechoslovakia and became a professor of philosophy at Charles University in Prague.  In 1939, following the occupation of Czechoslovakia by Germany, all Czech universities were closed and Patocka could no longer teach.  In 1945, after the German defeat, he taught again at Charles University — but only until 1948, when communist totalitarians seized power.  He was banned from teaching again until 1968.  In 1968, during Prague Spring, he resumed his professorship — until, four years later during ‘normalization’ under the hard line regime that was installed following the collapse of Prague Spring, he was retired.  From 1939 until his death in 1977, Patocka had been allowed to work as a professor of philosophy for a total of 7 years. Vaclav Havel had hoped to study philosophy, but was not allowed to because of his family’s class background. However, Patocka befriended Havel, and Patocka’s influence on Havel’s thinking was profound. I am going to try to describe that influence, but I must say two things first: (1) I am only giving you my impression; as far as I know, no one else thinks Patocka influenced Havel in the manner I’m about to describe; and (2) I am not a philosopher, so I want to tread humbly here and defer in any instance of disagreement to the brilliant and prolific Patrick O’Donnell, who has been commenting on these posts and also writing about Havel on his own blog, Ratio Juris.  Patrick, please correct me wherever you think I go wrong. I think Patocka’s influence on Havel had its roots in Patocka’s life’s work as a philosopher: the attempt to bridge the gap between the idea of an objective and subjective human reality, or rather to develop a new understanding of human reality that could encompass both an objective and subjective basis.  What I...

Vaclav Havel, Part III: Helsinki and the Charter 77 Declaration

Vaclav Havel, Part III: Helsinki and the Charter 77 Declaration

On the morning of January 6, 1977, in Prague, Czechoslovakia, the StB (secret police) surrounded and swarmed a car driven by the actor Pavel Landosky (if you’ve seen The Unbearable Lightness of Being, he plays the farmer with the pig who befriends Tomas and Tereza). In the car with Landosky were Ludvik Vaculik and Vaclav Havel, but to the secret police the people were the least important targets that day. They could be dealt with later and were – literally – tossed aside. What concerned the secret police was a document in the car written by a group of dissidents and signed by 243 very brave people. You can see the document here. It was the declaration of a group identifying itself as Charter 77. The occupants of the car had been trying to deliver the declaration to the Federal Assembly; the secret police knew all about the group’s plans and were lying in wait. But what the police did not know was that the delivery of the declaration to the Federal Assembly was a sideshow; another copy already had been smuggled out of the country, and was to be published the next day in four leading daily European newspapers, from which it would inevitably make its way back into Czechoslovakia. Two seemingly contradictory things about the regime’s response to the Charter 77 declaration are impressive: its severity, and its leniency. The severity of its response is remarkable because on its face, the declaration could hardly have been less revolutionary or more innocuous. Reading it today makes you wonder if you are reading the correct document – this caused all that fuss? The leniency of the regime’s response is remarkable because its clear preference would have been to kill the group’s leaders, or at least crush them, and it was quite capable of doing it. And yet, for perhaps the first time, the regime felt constrained in its response to domestic dissent by both the weight of world opinion and the logic of its own decisions. The regime felt constrained because the Charter had framed its declaration, in its very first sentence, not as a complaint but as a celebration of Czechoslovakia’s adoption of the 1975 Helsinki Accords – formally, the International Covenant on Civil and Political Rights — into its domestic law. The declaration then stated that the basic human rights protected by the Covenant were routinely violated in Czechoslovakia (listing several examples), and that, in the future, the Charter group and other like-minded citizens should and would accept responsibility for fulfilling the aims of the Covenant and Czechoslovak law by “drawing attention” to violations of basic human rights. The Helsinki Accords were the product of an intense and long negotiation process, the Conference on Security and Cooperation in Europe (CSCE), involving all of the independent countries of Europe, the United States and the Soviet Union. The purpose of the Conference in the eyes of the United States and its West European allies was primarily security – it hoped to get...

Vaclav Havel, Part II: The Power of the Powerless

Vaclav Havel, Part II: The Power of the Powerless

During the early 1970s in Czechoslovakia, following the failed attempts of reform communists to liberalize some aspects of society while maintaining a monopoly on political power, the old guard regime re-asserted its complete control with the help of Soviet tanks, through a process that was euphemistically called “normalization.” Amazingly, the catalytic event for Havel – that caused him to cross the Rubicon into dissidence – was the criminal trial of a Prague rock band, the Plastic People of the Universe. In a farce of a trial, the young members of the band were convicted of – well, that was never completely clear, but essentially of being out of the ordinary – and sentenced to lengthy terms in prison. It was not because rock music was important that Havel decided to speak up – rather it was precisely because it was so unimportant. What Havel recognized in that trial was this: that the regime had decided to deny people any sphere of autonomy whatsoever. If a handful of harmless eccentrics could not, in the privacy of their derelict flats, play awful music (I’ve heard them) simply because it seemed to them a genuine expression of their beings, then the last bit of autonomous space had been breached. Under the old implicit rules, the regime had demanded, and gotten, public obeisance: you attended the proper rallies and you kept your mouth shut about politics otherwise, you lived where you were told, worked where you were told, ate and read what you were told, and the regime probably wouldn’t bother you. But Havel had been watching for years as what he called the post-totalitarian system permeated deeper and deeper into what little private space a person might have left. And he realized that the one hope people like he clung to – that if they did and said the right things in public, they could escape a little, sometimes, in private – was a delusion. One could not escape by moving into a deeper corner of the cage. But Havel also realized something deeper and more profound, that he eventually explicated in his underground masterpiece essay, The Power of the Powerless. He realized that by playing the game – by doing the right things in public, and hoping for a little autonomy in private – people were not just surviving in the system: they were an essential part of the system. With what I suspect was his playwright’s eye, he saw that everyone, everyone, was playing a role that had been assigned to them. An implicit bargain had been struck: I will act the way the regime wants, and the regime will not punish me. It was a type of play, a facade.  If you want to understand what he meant in the most visceral, shockingly literal way, watch this clip from a Czech state broadcast of Spartakiada, a ‘festival of health and optimism.’  Watch it all the way to the 5:00 minute mark, and I promise you won’t forget it.  Of course, in most ways...

Vaclav Havel (and thanks for having me back)

Vaclav Havel (and thanks for having me back)

Thanks so much to Sarah, Dan and the Concurring Opinions crew for inviting me back. I’d like to use my visit to Concurring Opinions this month mostly to write about Vaclav Havel, who died on December 18th. And because I also blog over at PropertyProf, I’m going to post some of these entries over there as well. My sense is that most people in the legal academy have a vague idea that Havel was very important during the collapse of East European totalitarianism in 1989, and that he even though he openly admired Frank Zappa he was allowed to be President. All of those things are true, but they badly miss the mark. Havel’s contribution to the theory and practice of respect for human rights was incisive and profound. He left behind a body of work that merits our serious, sustained attention. If we miss that, we are depriving ourselves of something great and beautiful. More after the break . . . .

The Centralization of Higher Ed

The Centralization of Higher Ed

Last month, I noted some important innovations in teaching, while striking a cautionary note about massive, open online courses (MOOCs). But for those who prefer MOOC-thusiasm, Tom Friedman’s recent column delivers: You may think this MOOCs revolution is hyped, but my driver in Boston disagrees. You see, I was picked up at Logan Airport by my old friend Michael Sandel, who teaches the famous Socratic, 1,000-student “Justice” course at Harvard, which is launching March 12 as the first humanities offering on the M.I.T.-Harvard edX online learning platform. When he met me at the airport I saw he was wearing some very colorful sneakers. “Where did you get those?” I asked. Well, Sandel explained, he had recently been in South Korea, where his Justice course has been translated into Korean and shown on national television. It has made him such a popular figure there that the Koreans asked him to throw out the ceremonial first pitch at a professional baseball game — and gave him the colored shoes to boot! Friedman spends much of the remaining column arguing that universities need to a) get rid of “sage on a stage” lecture courses, while substituting in for them b) sages on YouTube like Sandel. The critical link to Education 2.0: intensive, individualized assessment & problem solving. So in Friedman’s ideal world, philosophers like Sandel would teach all the intro “Ethics” or “Justice” courses for millions, while local adjuncts would apply them to particular dilemmas (such as: should columnists disclose if they are “heirs to a multi-billion-dollar business empire”?). The irony here is twofold.

Technocracy as Trojan Horse

Technocracy as Trojan Horse

Venture capitalist Eric X. Li published a remarkable opinion piece last week, entitled Why China’s Political Model Is Superior. Given that French parents have recently supplanted Chinese ones in the merry-go-round of elite media idees fixes, we can only hope that milder, Gallic paternalism will eventually displace Li’s “Wolf Father” state. In the meantime, let’s take a look at Li’s argument. Li starts with a hard-to-dispute premise: America talks a good game about democracy, but its billionaire primaries are embarrassing and its substantive legislation is often corrupt. He then makes some sweeping claims: In Athens, ever-increasing popular participation in politics led to rule by demagogy. And in today’s America, money is now the great enabler of demagogy. As the Nobel-winning economist A. Michael Spence has put it, America has gone from “one propertied man, one vote; to one man, one vote; to one person, one vote; trending to one dollar, one vote.” By any measure, the United States is a constitutional republic in name only. Elected representatives have no minds of their own and respond only to the whims of public opinion as they seek re-election; special interests manipulate the people into voting for ever-lower taxes and higher government spending, sometimes even supporting self-destructive wars. For anyone familiar with the George Mason school of anti-democratic theory, there is little controversial here. But for the democrat, the answer to such problems is a popular movement, however hopeless it can seem among an apathetic populace.

Resisting Elites’ Resistance to the Rule of Law (Review of Glenn Greenwald’s With Liberty and Justice for Some)

Resisting Elites’ Resistance to the Rule of Law (Review of Glenn Greenwald’s With Liberty and Justice for Some)

(Glenn Greenwald is having a fundraiser; link here.  I think his work is well worth supporting.) There are few (if any) “free markets” in the largest sectors of the US economy. The health care industry is a labyrinth of public and private payers. Sectors known as “guard labor” are also larded with subsidies.  The Departments of Defense and Homeland security contract with thousands of companies.  The communications industry enjoys various government “givings.” And at this point, everyone knows that our largest financial institutions are taxpayer supported entities. Without the implicit backing of the federal government, they would collapse. Government subsidy to large industries is not, in and of itself, a bad thing. When wages are stagnant and capital gains are mainly enjoyed by the top thousandth of the population, some entity has to spend for common provision. But the price of that spending should be higher standards for the propped-up industry. In health care, for instance, Medicare Conditions of Participation (and laws like the 1986 EMTALA) require many hospitals to provide care regardless of patients’ ability to pay. Tough fraud and abuse enforcement subjects providers’ bills to rigorous audits; privacy law will soon require audit-capability for digital medical records. Legislation passed in 2009 and 2010 creates many other requirements to channel private provision of health care toward more public ends. It’s certainly not a perfect system, but regulation is serious and purposeful. There are real consequences for many lawbreakers. Glenn Greenwald tells a very different story about three other heavily subsidized industrial sectors.  He gives us serious reason to doubt that law has constrained banks, telcos, and the security sector when they posed critical threats to our economy, privacy, and liberty. His book With Liberty and Justice for Some is a passionate indictment of four distinct trends: 1) elites who violate laws with impunity, 2) retroactive immunity for acts unlawful at the time they were committed, 3) lobbyists’ power to influence legislators to render bad conduct lawful or even subsidized, and 4) a radical increase in punishment of those who fall outside the charmed circle of political and economic elites. Greenwald has examined each area in his blog, as have other, lonely voices in corporate law (and a more robust chorus in communications & cyberlaw troubled by telecomms’ sweetheart deals). The vital contribution of With Liberty and Justice for Some is to show how the four trends mutually reinforce one another, contributing to a politics of wealth and privilege defense commonly known as oligarchy.