Category: Culture

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part II)

In my article Discriminating Speech: On the Heterophilia of Freedom of Speech Doctrine Heterophilia I introduced the concept of law’s inherent heterophilia. One can see it as a new generation of homophobia, more politically correct perhaps, in which the goal of eradication has been substituted by the goal of assimilation.  The need to cover, which almost every LGBT individual has experienced and which has been so shrewdly identified by Kenji Yoshino in his book “Covering: The Hidden Assault on Our Civil Rights,” is a typical product of social and legal heterophilia that seeks to encourage such assimilation.  Because of its benign nature, legal heterophilia, as opposed to legal homophobia, is much harder to detect, and therefore it is much harder to fight.

How can we distinguish law’s homophobia from law’s heterophilia?  To be sure, it is not easy to draw the line between homophobia and heterophilia, and many heterophile actions can be interpreted as unconsciously homophobic.  However, generally speaking, laws that privilege predominantly heterosexual institutions, such as marriage, are heterophile in nature, while laws that restrict LGBT individuals, discriminate against them, or punish them as such, would be labeled as homophobic.  Thus, laws privileging married couples and awarding them forms of protection that unmarried couples cannot receive are heterophilic as long as LGBT individuals cannot get married, and probably as long as they do not extend those privileges to all couples, married and unmarried, gay or straight. The Mayo Clinic’s policy demanding same-sex couples to marry or else the employees’ spouses will lose their health benefits, instead of extending the benefits to all partner regardless their marital status and their sexual orientation is a product of socio-legal heterophilia.

Indeed, the very demand to marry, which is a consequence of the Windsor case, is heterophilic even when it does not involve the carrot of benefits or the stick of their denial. As a recent New York Times article demonstrates, such social requirement is becoming more and more conspicuous in the wake of the Windsor ruling. And what is fascinating, is that heterosexuals are the ones who nudge same-sex partners to marry most.

While not using the term “heterophilia” or its derivatives, Janet Halley has exposed some of the most heterophilic strands of the institution of marriage in her 2010 article Behind the Law of Marriage (I): From Status/Contract to the Marriage System.  Marriage law, however, is not only heterophilic; it also has homophobic qualities, as many scholars have rightly observed. It remains to be seen if society and the courts will be able to release themselves of all forms of prejudice and discrimination concerning marriage and marital status. Getting rid of the homophobic Section 3 of DOMA was only the first step in this direction.

Part I of this post.

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Gatekeeping and the Economic Value of a Law Degree (Part 2)

LincolnIn my last post, I discussed how the commentary on Michael Simkovic and Frank McIntyre’s “The Economic Value of a Law Degree” has illuminated a separate and worthwhile avenue for further research—namely, whether the presence of powerful gatekeepers who oversee the practice of law should make us confident that the value of the law degree will be relatively stable.

Most helpful in this regard has been Deborah Merritt’s post regarding the impact of the typewriter on lawyer education requirements.  At the risk of putting words into her mouth, Merritt observed that the typewriter may have contributed to the decision of the New York bar to make attendance at a three-year law school a prerequisite to bar admission and, therefore, that S&M were too hasty in concluding that people misconceived the typewriter to be a threat to the value of the law degree.

My earlier post explained that we must be careful not to conflate structural changes in the law degree’s value with structural changes in the credentials that one will need to become a lawyer.  By keeping the two separate, we can better understand how the gatekeepers to the industry might be able to insulate the value of the degree from exogenous forces.

In this second post, I’d like to offer some final observations on gatekeeping.  I begin with the acknowledgement that the effects of gatekeeping extend well beyond the population of degree holders, though S&M had perfectly valid reasons for focusing on that population.  Thereafter, I return to the relationship between gatekeeping and nostalgia, highlighting the strange role that the late Abe Lincoln played in the adoption of education requirements.  To finish up, I briefly explain how gatekeeping measures have long been—and will continue to be—a tempting tool for those with the power to wield them. Read More

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The Decline of Homophobia and the Rise of Heterophilia in the Aftermath of United States v. Windsor (Part I)

Hello everyone, and thanks Solangel and the other regulars for hosting me here. I thought I would begin with some thoughts on the aftermath of United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA). June 26, 2013, the day in which the case was decided, will no doubt be one of those days that many will reminiscent about, ask and will be asked “where were you when the decision was published?” As someone who studied is Constitutional Law class when the 1986 Bowers v. Hardwick was still the law, the day Windsor was decided was a truly wonderful day for me. Indeed, this day marked a significant decline in legal homophobia, and we should all celebrate that. But is it the end of marriage-based discrimination?
I’m afraid that the answer to this question is “not yet.” It seems that the campaign for same-sex marriage has been almost too successful, and that the right to marry is rapidly becoming a requirement to do so. Postbulletin.com reports that the Minnesota Mayo Clinic is requiring its LGBT employees to marry their same-sex partners in order to continue their eligibility for health benefits. The previous policy was introduced in order to remedy the discrimination against LGBT employees who could not marry their partners. Now when they can do so, they must, if they wish to continue to be eligible for the benefits. There will even be a deadline for these couples to get married. What a charged idea, a deadline to get married, and one that is created by one of the partners’ employee!
On the face of it, there is nothing wrong with this change: Under this policy, unmarried heterosexual partners of employees are ineligible for health benefits. The update is necessary in order not to create a new form of discrimination, this time against unmarried heterosexual couples. But this is only one way of looking at this policy.
The updated policy which requires same-sex couples to marry in order to keep their health benefits exposes what I call law’s heterophilia, a concept which I have introduced in a recent article. Much has been written about law’s homophobia, past and present. Various forms of discrimination against LGBT individuals have been labeled “homophobic” and in most cases, justly so. But law sports an additional, more insidious prejudice—namely, heterophilia.
Homophobia works “against” LGBTs. Criminalization of sex between men or between women is homophobic. But what are we to make of legal norms that do not work directly “against” gays, but “for” heterosexuals? Such norms do not consciously discriminate against LGBT individuals, but privilege heterosexuals (not all of them, as I explain below). The underlying result is discrimination. These norms are not homophobic in the sense that unlike sodomy laws, they were not designed with the specific aim of persecuting sexual minorities.
I borrow the term “heterophilia” from psychoanalyst David Schwartz, who argued in the early 1990s that in addition to homophobia—a well-explored prejudice which is rooted in devaluation—there can be another form of prejudice against LGBT individuals which is rooted in “philia,” namely in the idealization of heterosexuality. Heterophilia, argued Schwartz, is an “unarticulated belief in a particular sexual ideology,” rather than an objection to an alternative sexual ideology. By the absence of phobia, and in many cases by actual acceptance of LGBT individuals in several respects, heterophiles “immunize their ideological commitments against articulation and scrutiny.”
Now, let’s return to the Mayo Clinic’s revised spousal health benefit policy. Heterophilia idealizes not merely heterosexuality, but heterosexual monogamous relationships in which the spouses are married to each other. Marriage is the quintessential heterophile institution. This is why heterophilia can discriminate not just against LGBTs, but also against heterosexuals who refuse to get married. They too are ineligible for health benefits for their partners, if they are employed by a company who has a similar policy in place.
While the Windsor Court’s ruling is just and humane, it exists within a context, and is subject to interpretation (or misinterpretation and even abuse) within that context. One such misinterpretation is the quick evolution of an equal right to marry for LGBTs into a requirement. Critics of the campaign for same-sex marriage have warned against this consequence. But I believe that the critique was misdirected. The problem is not with the proponents of same-sex marriage, but rather with the general socio-legal culture, which still discriminates on the basis of marital status and, now, happily, does so regardless of one’s sexual orientation.

Part II of this post.

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Outrage and community

A recent episode of Keeping up with the Kardashians (stick with me for a minute) sparked an interesting conversation last month about the intentional infliction of emotional distress tort.  As all first-year students learn — to much snickering — the Restatement’s test for whether a defendant’s actions are intolerable in a civilized society is whether an average member of the community learning of the challenged behavior would exclaim “that’s outrageous!”  Perhaps because of the stilted formulation, IIED is the Rodney Dangerfield of the torts world.  This may explain why the Supreme Court has been so willing to strike jury IIED verdicts that are later alleged to impair speech rights.  Two years ago, in Snyder v. Phelps, the Court observed that the “outrageous” standard is “highly malleable” and “inherent[ly] subjective.”  For that reason, the Court suggested that jury decisions about outrageous speech may be constitutionally suspect.

But is the standard as malleable as the Court suggested?  If you listen carefully, you will often hear the precise words of the Restatement — “that’s outrageous” — voiced in spontaneous response to stigmatized behavior.  Let’s return to the Kardashians. The youngest of the crew, Kylie and Kendall, were recently featured taking cell phone video of their mother using the ladies’ room.  Feeling that the world at large should join in the hilarity, the girls then posted the video to their blog for all to see.  Mother Kris claimed to be furious and embarrassed (but not too furious or embarrassed to cut the footage from the television show that eventually aired).  Told about the episode over lunch, a law professor colleague frowned and exclaimed . . . “that’s outrageous!”  When an Australian radio DJ convinced a nurse attending to the hospitalized Kate Middleton last year that she was the Queen and broadcast the ensuing conversation, the nurse committed suicide.  The New York Times immediately dubbed the prank “outrageous.”  When an obstetrician proud of his work on a Caesarean section carved his initials into a patient’s abdomen, the hospital that had employed him called the act “outrageous.”  And so on. Read More

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Symposium: Clan on the FOB, part two

Piggy backing off Mark’s admonitions about preventing the return of the clan (part four of RULE), I’d like address the issue of ousting the Rule of the Clan from Afghanistan. How do we replace a union of feelings (clan) with a union of words (constitution)?

Mark notes, “to prevent the return of the rule of the clan in its various guises, liberal states not only need to possess democratic legitimacy and be effective in advancing individual autonomy—they also need to find ways of meeting the genuine goods the rule of the clan provides, especially solidarity and a measure of social justice, lest liberalism collapse into a hollow core.” From my Afghan tent-mates, I learned some disconcerting lessons about how difficult it is to de-clan a clan-entrenched society.

Take the example of the “colonizing invader” meme as it now circulates among Afghans. That meme is promoted, by various means, in tribally generated masternarratives. Exactly how many Afghans view ISAF, NATO as colonial INVADERS we do not know, though we do know that, somewhat paradoxically, that number increased in 2004 when Bush pulled 70,000 US security forces out of Afghanistan and sent them to Iraq. Upon their withdrawl, Taliban attacks spiked throughout those areas where US Troops had been patrolling and where they’d established peace and security for populations that had been longing for both. In the wake of that withdraw, Afghans felt abandoned. Much longed-for peace had been won—and then lost, because of a war in Iraq, a war perceived to be against Islam. Nor do we know exactly how relevant the meme of COLONIAL OCCUPIER is to the personal stories that Afghans tell themselves to explain why ISAF/NATO is in their Country but I heard that theme in many different forms often in the stories of Afghans.

If we envision ISAF’s mission to be one of helping Afghans establish democratic law in place of clan law (making tribes into a nation), then we really should understand in detail how Afghan master-narratives mobilize the meme of invader colonist and reinforce clannism. Afghan masternarratives typically de-legitimise Western ideas of law. From what sources does jurisprudential legitimacy emerge? I direct that question to other Symposium members who are far more knowledgable than I about the ancient, primal sources of law. However, I do know that one of those sources is what Mark calls the imaginative sensibility of a society—masternarratives, or myth.

But here’s the stumbling block in Afghanistan: From whom do ideas of democratic of law emerge? To what extent are the ideals of individual freedom and democratic, principle-based law made guilty by association with ISAF/NATO invader infidels?

My Afghan tentmates made it absolutely clear to me that what we’re really talking about when we’re talking about clan or tribal identity among Afghans is the feasibility of democratic law gaining true jurisprudential power in Afghanistan. From the perspective of the current battlespace, the issue remains one of cultural incompatibility. From the perspective of my students fighting a Counter Insurgency War, that issue came down to this question: “What are we really fighting for?” “Operation Enduring Freedom”—my ISAF students often playfully shifted the emphasis of that phrase, sometimes heavily intoning Freedom, sometimes ENDURING. Freedom is a word that Mark asks us to take seriously. I often asked my Afghan tentmates to tell me the word for individual freedom in their tribal tongue. They had no such concept. I asked them to translate Operation Enduring Freedom into their tribal tongue. They usually laughed and said, verbatim, “Operation Enduring Freedom.”

Few places on earth present more intractable “Clan” obstacles to the establishment of the rule of democratic law and individual freedom than Afghanistan. Mark’s attention to the “imaginative sensibility that lies at the core of the liberal rule of law (page 183)” points me to the imaginative sensibility that lies at the core of clan law.

We can see the failure of imagination in Afghan Army leadership. The Afghan National Army has largely failed to create the imaginative mechanisms that should enable its members to transcend clan loyalty and its honor-compulsions. A large part of that failure lies in ANA inability to form a masternarrative (or myth) that can offer, to use Mark’s phrasing, a powerful image of “the genuine goods the rule of the clan provides, especially solidarity and a measure of social justice.” Where the US military is extraordinarily effective at creating fictive kinship in new recruits, the Afghan Army is extraordinarily ineffective at making its fiction as compelling as the facts of the Afghan clan.

The Taliban have ruthlessly exploited that “narrative” gap. All species of Taliban have successfully mobilized the meme of invader and, thus, have largely won the masternarrative (IO) war. ISAF and NATO have been predictably framed by the Taliban as NON-ISLAMIC (infidel) invaders who’ve brought great damage to the honor (NANG) of all Afghans, especially Pashtuns. As the Taliban tell the story of a decade of ISAF occupation, only the Taliban have been successful at removing dishonor (BENANGA) from Afghanistan.

Why do so many different groups of Afghans buy into the Taliban masternarrative? Because the Taliban can point to SOCIAL PROOF: Afghan women and children killed by drone strikes; night raids; burned Korans; pissed-on dead bodies of Islamic fighters; US Special Forces running amok and killing dozens of civilians. Plus, they can point at any moment to Karzai’s unending corruption. And they can readily point to ISAF forces as INFIDELS—non-Islamic invaders.

Notably, of all the many Afghans I lived and worked among, the Afghan Army Soldiers were the most difficult to understand. My feeling is that they’ve been recruited from the nastiest dregs of Afghan society, the bottom of the barrel, the utterly outcast, Ghandi’s untouchables. They’re the men not even the heroin druglords want on their payrolls. To put this in economic metaphors, these are men who are DEEP in BENANGA debt. By working for the ANA or for ASF, these men dig themselves even deeper into BENANGA.

Often, the only way out of BENANGA/honor debt, the only way for these deeply SHAMED men to restore their NANG, is to kill ISAF troops in one Samsonic moment of liberation. They empty their AK into their US counterparts or blow themselves up at on a FOB.

The only Afghan men who were lower in the social Afghan order were essentially slaves or indentured servants of local Afghan strongmen whom the US government contracts to perform menial services on its bases, such as laundry, janitorial services, and construction. Lower even than these men were the now-adult victims of “Bacha Bazi,” still un-bearded and untreated for the years of sexual abuse to which they were subjected. These poor men are still, as one US Soldier put it, “looking for daddy.” They did not enjoy, so far as I could tell, full membership in a tribe or clan.

Every ANA/ASF to whom I talked admitted to having a brother (or two) who belonged to an insurgent group, either to a species of Taliban or to one of the criminal insurgent networks. In any case, they were all compromised if not downright confused in their loyalties because of their family and kinship ties—a classic double-bind predicament. If an ANA has killed his own brother (or cousin) during an insurgent attack or on patrol, how does he restore his NANG? Such a killing would bring immediate BENANGA to the ANA soldier and to his extended kin.

As for our own ignorance of Afghan masternarratives (which are structured upon themes of honor and shame), I met no one in ISAF who had any idea how important Mirwais Hotak is to Pashtuns. They did not understand how contested he is today amongst Afghans. Yet, every Afghan to whom I spoke could recite his biography in detail. And they could tell me a good deal about the Hotak Dynasty. Why? Because Mirwais Hotak drove “Iranian” invaders/colonial occupiers out of Afghanistan and back to Isfahan where he then set up a powerful dynasty in the capital of the invaders. In the Afghan minds of my tentmates, Mirwais is a common TROPE. He is THE CLASSIC symbol of the LIBERATOR of Afghanistan. And yet, our COIN efforts have done NOTHING with this figure. NOBODY I talked to in ISAF/NATO even knew the name MIRWAIS HOTAK. Only one student of mine, an avid fan of the poetry of Rudyard Kipling, had ever heard of Mirwais the Hotak Pashtun.

What astonished me about the ANA I met is that they have not constructed their own MASTERNARRATIVE. The ANA cannot develop their own master-narrative, so I suspect, because they are composed of too many DIFFERENT inter-conflicting tribes who live by criss-crossing, cross-conflicting master-narratives. Often, the tribe/ethnic group from which an ANA member was recruited is BROKEN. The tribal sense of honor remains compelling and even compulsive, but tribal forms of mediating an individual’s identity are unavailable.

Tribal/ethnic discombobulation gives rise to EXTREME INSTABILITY IN IDENTITY in individual ANA members. That instability struck me as typical of ANA members. I eventually understood that the identity structure of the average member of the ANA might implode at any moment, due to his CONFLICTING LOYALTIES and honor-compulsions. The ANA who aimed his AK at my head had arrived, in all likelihood, at the verge of implosion.

The double-bind in which many ANA members find themselves while working alongside US troops can potentially give rise — too often does give rise — to VIOLENT PSYCHOSIS. When the psychosis erupts, an ANA trooper typically takes his rage out on US troops—by shooting them in the back.

In addition to original studies by the anthropologist Gregory Bateson (see Steps to an Ecology of Mind: Collected Essays in Anthropology, Psychiatry, Evolution, and Epistemology. University Of Chicago Press, 1972), some of the best, most intelligently useful studies we have about the tortured psychology that emerges in colonized/subalterns who find themselves in a DOUBLBIND predicament (conflicting loyalties imposed by an occupying force) come from the Anthropology of Native American Indians. See Native American Postcolonial Psychology by Eduardo Duran and Bonnie Duran. See also Gerald Sider’s “When Parrots Learn to Talk, and Why They Can’t: Domination, Deception, and Self-Deception in Indian-White Relations.” And, James Clifford’s “Identity in Mashpee. In The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art.” See also, Richard Drinnon’s White Savage: The Case of John Dunn Hunter.

Of course, we have the standard, classic study of the “So-Called Dependency Complex of Colonized Peoples” by Franz Fanon in which he responds to M. Mannoni’s PROSPERO AND CALIBAN: PSYCHOLOGY of COLONIZATION. Again, AMBIVALENCE is a key psychic condition. Ambivalence, as I witnessed it in Afghanistan, is a dangerous psychic condition. (See also, Fanon’s “Colonial Wars and Mental Disorders” in WRETCHED of THE EARTH.)

Studies of the ANA that fully recognize and explain an ANA member’s double-bind predicament and how the conflicting loyalties in which he lives as a Soldier give rise to violent psychosis have been few and far between.

Notwithstanding the absence of detailed studies, “Winning the Battle of the Narratives in Afghanistan” by Dean J. Case II and Robert Pawlak acknowledges the need to get inside the FEELING STRUCTURES of ANA. (See also, K Oatley’s “Why Fiction May be Twice as True as Fact: Fiction as Cognitive and Emotional Stimulation.” REVIEW OF GENERAL PSYCHOLOGY (1999))

To get into the “feelings of the general public” (an Afghan public that slots into tribal/ethnic groups, each of which live by a set of overlapping and sometimes cross-conflicting masternarratives), I consulted the work of Benedicta Grima. Her bio: “Benedicte Grima is a trained ethnographer from the University of Pennsylvania who spent over ten years traveling, living and participating in rural life in the border area of Afghanistan and northwestern Pakistan as part of her doctoral research. Four years of extensive language training in Pashto and Farsi at the Institut des Langues Orientales in France, and an M.A. from the University of Paris in Iranian Studies, armed her with the linguistic skills to feel at home among Pashtun men and women ranging from farmers to intellectuals. She has published a book, “The Sorrows Which Have Befallen Me”: The Performance of Emotion Among Paxtun Women, and numerous academic articles on various aspects of Pashtun women and culture. ”

In order to provide my own students with the intellectual equipment they needed to deal with their own double-bind predicament and cope with the tremendous psychic stress that comes from living and working alongside deeply instable Afghans, I would, in the future, teach Mark’s book. His review of Maine’s work would help me introduce students to specific, detailed information about Afghan history, culture, worldview (Afghan “clan narratives”) with the aim of showing my students how various Afghan groups construct a sense of dignity and honor, which is markedly different from how we construct a sense of dignity and honor out of the ancient Code of the Warrior.

In sum, most Afghans are compelled by the themes of a master-narrative (episteme) that stems from the 19century. The plot of that narrative has not been altered significantly by ISAF’s best persuasive efforts. If anything, ISAF’s decade-long presence has reinforced that plotline. And the honor-shame (nang/benanga) dynamic that Mark refers to in chapter seven is ruthlessly exploited by the Taliban masternarrative/myth.

As my Afghan neighbours asserted, “You Americans have merely been talking to yourselves.” Our masternarrative (the rhetoric of democratic statehood) about why we’re in Afghanistan plays well with US and NATO audiences who value human rights and democracy, but that story falls on deaf (or missing) Afghan ears. We’ve been caught in our own solipsism for way too long.

Mark’s insights about the “transformation of the clan” should be deployed immediately to get us past our own Afghanistan solipsism. In my next post, I will try to imagine how social networks might be used to replace kinship networks in Afghanistan.

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Symposium: Clan on the FOB, part one

Unlike most of our symposium members, I do not approach the RULE OF THE CLAN from a legal perspective, not primarily anyway. My perspective is from the battlespace. The issues of clan solidarity, group honor, and collective shame that Mark elucidates, specifically in chapter seven, were not legal theory but stubborn and irreducible facts-on-the-ground for my students and me at a Forward Operating Base near the AF-Pak border in Afghanistan. I approach Mark’s arguments primarily from a socio-cultural perspective, for cultural incompatibility between US Forces and Afghan Forces, who are supposed to be allied in their efforts to provide security to Afghans, often has lethal consequences. Green-on-Blue killings (Afghan troops killing US troops) dramatically spiked during my deployment to Afghanistan, a “metric truth” I discovered first-hand when an Afghan Soldier stopped me on my way to my tent, for no apparent reason, by aiming his short-barrel AK at my head—an epiphany at gunpoint that instantly revealed the predicament in which my students found themselves working alongside an Afghan Army made up of dangerously loyalty-conflicted individuals. That at-the-end-of-a-barrel moment also revealed the tricky nature of my pedagogical duty as Professor Fobbit.

That duty was preventing Green-on-Blue conflict. My students are being asked to fight an especially treacherous kind of war in Afghanistan, in which they must vigilantly watch their backs for fear of being shot through their own hearts by the native minds they’re supposed to have won over, the ANA and ASF. For example, on our base, the ANA manned the ops alongside US Soldiers, my students. Whenever we came under attack, however, the ANA would typically NOT shoot back, for fear of killing one of their own kinsmen. Many abandoned their posts, leaving US soldiers (my students) to worry that they’d soon be getting shot at from behind. In addition to uniformed Afghans, many non-uniformed, armed Afghans roamed the FOB. As one student remarked, “I don’t know how many pyjama-ed, sandal-wearing, OBL-bearded locals I see a day walking around base armed with AKs but not wearing ID badges. Who the hell are these guys? NOBODY knows!”

In this environment, reliable, detailed socio-cultural data about Afghans was of MORTAL import to my students, armed US Soldiers and Sailors whose daily choices often had lethal consequences, for themselves and for Afghans. My students’ ability to make blink-fast, razor-smart on-the-Fob and on-patrol choices was directly linked to their understanding Afghans as complicated human beings who belong to complex, clan-based, honor-obsessed cultures that appear, at first glance, utterly incomprehensibly bizarre to most US Troops. We called the kind of intellectual skill we were developing in our plywood classroom “cultural cunning.” Mark’s insights are uncommonly useful to developing that kind of cunning.

Although I taught any material that was intelligently useful to helping my students learn how to sidestep unnecessary conflict with their Afghan counterparts (I wish I’d had Mark’s book then), Homer was our main textbook. The primal data the ancient bard offers in ILIAD about the tough psychic realities of combat helped my students deepen their understanding of and commitment to the Warrior’s Code (See Shannon French’s THE CODE OF THE WARRIOR, 2005) and gave them a much-needed narrative template upon which to organize their own increasingly burdensome and discombobulated experience of counter fighting a brutal, no-end-in-sight insurgency. I didn’t have to teach them that Homeric myth can be used as a method to face the spiritual and psychological damage of war fighting. They taught me that lesson, because they were already living inside the warrior myth.   Echoing Roberto Calasso, my students demonstrated that that Greek myths are not “there waiting for us to revive them; they are there waiting to revive us, to wake us up to collective psychic realities.” They provide a place to begin healing from the collective “moral damage” of war. Homer was, as we approached him on a battlefield in Afghanistan, a powerful prophylactic against moral injury and psychological trauma.

Mark is dead right in RULE when he states that “each Marine is bound other Marines by unbreakable bonds of loyalty.” The same is equally true of the Soldiers and Sailors I taught in Afghanistan. Our study of Homer’s ILIAD gave them abiding insights into their own collective understanding of the powerful feelings of honor that bind them into effective military units. I know of no relationships thicker or more intense than those between Soldiers in combat. The US military is extraordinarily effective at training its Warfighters into fictive kinship groups, bands of brothers, indeed. (See BECOMING SOLDIERS: ARMY BASIC TRAINING AND THE NEGOTIATION OF IDENTITY by John Bornmann) And Homer’s primal insights into battlefield relationships spoke directly to what mattered most among my students: The ethical and social performance of his or her own forces. Their understanding of honor, like Homer’s, was intensely social, keenly collective. Bouncing our experience off of what Homer depicts of the bonds between Ajax and Nestor or Hector and Paris or Achilles and Patroclous, we explored the implications of what Mark has called the “community surveillance” of clan configurations, especially its benefits to US Warfighters in the battlespace, “security, identity, robust interpersonal relationships”—solidarity. Deployed life in US uniform in Afghanistan is, in the best-possible sense, Clan life. I’ll return to his point in a follow up post with the recent evolutionary, socio-biological discoveries about group loyalty and genetic altruism of Robin Dunbar, Franz De Waal, Paul Zak, and E.O. Wilson. (I also hope to contrast my work in Afghanistan with my work in Africa.)

While Homer provided my students self-protective insight and narrative form for their own experience of war, the Mediterranean bard also provided my students key insights into a clan-based, honor-possessed Afghan society. As my friend and colleague, Dr. Jonathan Shay (ACHILLES IN VIETNAM: COMBAT TRAUMA AND THE UNDOING OF CHARACTER), points out, “The world of Homer was dominated by aspirations to, struggles over, and rages related to honor. The Soldiers currently fighting in Afghanistan are fighting against, and also in alliance with Afghans, who inhabit a culture that is much closer to that of the Homeric epics than to that of today’s USA. This can only help our Soldiers make better decisions on the ground.” Homer forms much of his epic out of what Mark has identified as a key aspect of identity-formation in clan members, “ancestral consciousness…lineage knowledge provides clan members with a sense of their place in the world, not only in contemporary time but across many generations in the past and, implicitly, in the future.” A great many passages in the ILIAD depict characters boasting of their lineage. The point of these I-was-begat-by riffs is to establish the status and presence – a sense of place – of the character, i.e. Ajax, Nestor. Here, we made the links to Afghan identity structures and to Afghan ancestral SELF-consciousness.

As Mark has noted, a clan coerces cooperation and loyalty out of its members. Myth is a highly manipulative tool invented by the clan for creating solidarity, of course. Homer’s ILIAD, for example, was used to teach a young Greek warrior the stubborn and irreducible social and psychic facts of war. The teaching and reciting of the ILIAD by Greeks was also used to form loyalty to the group and to promote the key virtues that were considered absolutely crucial to the formation of Greek warrior units: The classical virtues of courage, honesty, moderation, self-sacrifice—justice. (These are also the core LEADERSHIP values of all branches of the US military.) Homer was, for centuries, THE textbook for Greeks.

Moreover, the ILIAD provides an unsurpassed lesson in the psychology and physiology of honor: How honor structures individual identity, how it binds the individual to the group, how it motivates him to action, especially into combat. The ILIAD reveals the physiology of honor, demonstrating better than any work I know of how honor motivates the feuding behavior of an entire society. Homer reveals the specific cultural devices that instilled and induced the feeling of honor and shame among Ancient Greeks. That was, in fact, the main didactic point of Homer’s epic. In that sense, the ILIAD is highly manipulative, inducing feelings that were key to becoming a true Greek warrior and encouraging the appropriate, active responses to those feeling states.

As I explained to both my ISAF (and to my AFRICOM) students, honor is neurologically compulsive among members of honor-based societies. (See Richard Nisbett and Dov Cohen’s study on the physiology of honor in Southern men.)

It’s vitally important to know that affronts to members of honor-based societies call forth automatic, gut reactions from an individuals whose identity is structured by the honor-shame dynamic. An insult to a Tribal Afghan might very well compel him, at the neurological level, to empty his AK into you and your unit. His reaction is NOT deliberative. It is compulsive. He cannot NOT react to the cocktail of neuropeptides released into his blood stream by an affront or insult. Among some Afghans, even the profanity used so very casually by ISAF personnel in the vicinity of a tribal elder (or, worse, an Afghan woman) might be enough to give an insult that provokes an honor reaction.

In order to work effectively with Afghans, you need to know precisely what offends and affronts the individual’s culturally-bound, innate sense of honor. You need to know the cultural mechanisms by which honor and shame are induced in individuals by their tribe. Mark’s book gives us some tough gristle on which to chew through these issues.

For example, Homer’s ILIAD is a grand dramatization of the cataclysm into which honor-provoked feuding typically propels clan-based societies. In this regard, Mark’s book not only confirms many of my own observations of Afghan clan-driven, honor-obsessed behaviour but also echoes the primal lessons about pre-modern, honor-driven small societies that Homer’s been teaching us for over 1,500 years. In our battlefield classroom, we applied Homer’s insights to Afghan society and used them to discover the specific cultural mechanisms by which a given Afghan tribe created loyalty and solidarity. I wish I’d had Mark’s book available to me then. His book has given me “soft eyes” on Homer.  (I’ll try to refrain from waxing Homeric in future Posts.)

I had an ideal position as a “socio-cultural” professor on that particular FOB because I lived in a tent that was exclusively designated for Afghans. Even better, I was the only NON-Afghan living in that tent. They didn’t want me there, but I stayed on to learn their worldview, to learn from them directly how they viewed each other, me, ISAF—how they viewed my students. At any given time, there were around fifty Afghans packed into that tent: Nuristani, Pashai, Pashtun, even Shia Hazaras. After they figured out they could trust me (or pretended to), they invited me into long chai conversations in which they endeavoured to make me understand the immensity of the cultural chasm between them and my students.

I learned their backgrounds, levels of education, musical tastes, attitudes toward Islam, toward women, toward the ANA, toward Russians, toward Pakistan, toward America, toward each other. I learned how to make Chai. I learned their complicated, oft contradictory and ambivalent views of our Troops so that I could better equip my students to cope with Afghan hostility and ambivalence—to cope with potentially lethal cultural incompatibility. I lived with them in that tent, alone as an American. My self defence was entirely on me. I eventually learned how to sleep soundly. (Male-on-male rape was disturbingly common on that FOB.)

I took their insights (and complaints) directly into my classrooms. My squibs last year in FOREIGN POLICY will give you a pungent sense of our classroom work at that FOB.  In my next post, I’ll share more of what I learned from Afghans about Afghan “clannism.”

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Pressing a point

 

Prentice Women’s Hospital is a landmark for me.  Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school.  So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility.  The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.

Prentice_Women's_Hospital_Chicago

The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in.  Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation.  Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure.  She responded with drawings of a 31-story skyscraper perched on top of the clover leaf.  Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper.  Again, though, he didn’t stop there.  He contacted a field officer for the Chicago office of the National  Trust for Historic Preservation, and asked whether her organization would support the idea.  He contacted Northwestern to ask whether the university might sign on.  And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan.  Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.

Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media.  Of course, partisanship and muckraking in journalism are not new.  But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news.  Why do these questions, obvious fodder for media ethicists, matter to lawyers?  For two reasons, one specific and one general.

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Documentary on Indonesian War Crimes Strikes a Chord

TalkShowThe documentary “The Act of Killing” appears to be an extraordinary commentary on the violent anti-communism of Suharto‘s Indonesia. As Francine Prose notes, “the country’s right-wing leaders recruited gangs of thugs to wipe out suspected Communists with messy, improvisatory, but astonishing efficiency; estimates of the number killed during this period range from 500,000 to a million or more.” As in Vietnam, it appears that extremism in the defense of liberty was no vice.

As gangs become a tool of the prison industry in the US (or vice versa), the following observations from participants in the documentary are a striking commentary on the relativity of law in extreme scenarios:

On screen, one unrepentant murderer mocks the notion of human rights: “The Geneva conventions may be today’s morality,” he says, “but tomorrow we’ll have the Jakarta Conventions and dump the Geneva Conventions. War crimes are defined by the winners. I’m a winner. So I can make my own definition.”

When some of “the most important figures in organized crime are employees of multinational companies, politicians and bureaucrats,” the definition of the “criminal” leaves ordinary rule of law principles behind. The problem affects far more countries than the obvious targets of, say, Indonesia, Italy, and India. The “officialization of the criminal” and “criminalization of the official” may well be one of the darkest trends of our already troubled times.

Image: From The Act of Killing (directed by Joshua Oppenheimer), video still of an Indonesian talk show, where the audience applauded the “homicidal exploits” of a “self-described gangsters who” engaged in “brutal campaigns against Communists, ethnic Chinese and critics of the military government.”

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Glass Houses

Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June.  A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use.  The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used.  It’s not clear, however, that the Glass experience will duplicate the Kodak pattern.  Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.

Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference.  There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye.  Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers.  “My world,” he wrote, “came screeching to a halt.”  In an article appearing a week later, however, Bilton appeared to have calmed down.  He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public.  Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s.  So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence.  Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.

But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today.  Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century.  The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers.  Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy.  That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors.  State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox.  In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.

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When There’s Nothing Else to Say

Are the following two paragraphs likely to have been composed with originality, independently by two different people, or does it seem likely that one was adapted from the other?

“We’re pleased to have the opportunity to become a part of what we believe to be the finest family of companies ever assembled under one corporate name. Warren Buffett, Chairman of Berkshire Hathaway has demonstrated a legendary record of protecting the unique characteristics of individual businesses in a diverse portfolio of companies. We’re excited to be a part of it.”

“We couldn’t be more pleased than to have the opportunity to become a part of what we believe to be the finest family of companies ever assembled under one corporate name. Warren Buffett has demonstrated a legendary track record for growth and we want to be part of it.”

These are from Berkshire Hathaway press releases, several years apart (1997 and 2000), quoting senior executives of generations-old family companies being sold to the conglomerate Warren Buffett leads.  My hunch is that cribbing occurred, but of a fairly innocuous sort.

A Berkshire manager, experienced in drafting press releases, asked the selling executive for a comment.  Having never given a comment for a business press release of this sort, the recipient asked for examples or suggestions of what to say.

Taking a habit from the page of corporate lawyers, the Berkshire manager likely culled some examples from precedent and sent them over.  The family businessman then read through the samples, picked the one he liked the best, touched up the wording a bit and sent it back.

I came across this curious incident in the context of a larger research project on Berkshire Hathaway’s acquisitions over the past forty years. Part of the project concerns annotating and documenting the joint expectations at the outset.  To do that, I’m reading through public company disclosure documents, minutes of meetings and other resources, including press releases. 

Press releases announcing corporate mergers are prone to hyperbole and generalities and I’ve found quite a bit of that. Yet, especially when a public company is involved, they are also carefully vetted.  And I’ve seen quite a bit of useful, distilled, clear detail in the Berkshire press releases, including the pair quoted.  

Written independently or not, this pair reflects a widespread perception in the business world that Berkshire is a unique corporate home where Buffett has been exceptionally good at helping companies grow.