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: Law at the End of the Day

Conflating Economics and Politics, Security and Prosperity--President Obama Addresses the United Nations

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It was once commonly understood that Marxist-Leninists and their progeny tended to conflate politics and economics, using law as an instrument of the necessary politics of the vanguard forces those control and leadership of the state would produce movement toward the establishment of a proper Marxist state. On the other hand, the good solid burgers that made up the political leadership of Western democratic institutions kept these spheres separate to preserve liberty and the rule of law. Cf. Morton Horwitz, "Comment: The History of the Public/Private Distinction," 130 U. Penn. Law Review 1423 (1982). But that once clear distinction has been eroded as the logic of economic globalization has been institutionalized within normative orders in which politics is undertaken by states through interventions in private markets and private actors acquire substantial public obligations, especially in those territories where the state apparatus is weak. But the conflation of economics and politics, and the expression of that conflation through law, can have consequences far beyond the structuring of transnationals communities and the rules of their behavior.

It should come as no surprise, then, that the logic of this sort of conflation ought to extend to war and economics, expressed through legal frameworks, as well. This conflation, and its ramifications for assertions of state power through law was made quite clearly in the recent address of the American President, Barack H. Obama, before the United Nations General Assembly. Remarks by the President to the United Nations General Assembly, United Nations Building, New York, New York, Sept. 23, 2010. This short essay provides a close reading of that address focusing on the consequences of this now banal but once extraordinary conflation.

Mr. Obama starts with the admission that crisis produces an environment within which substantial changes are plausible. The opening does more than that-it suggests a multi vectored commonality--across time, space and condition.

We know this is no ordinary time for our people. Each of us comes here with our own problems and priorities. But there are also challenges that we share in common as leaders and as nations.
We meet within an institution built from the rubble of war, designed to unite the world in pursuit of peace. And we meet within a city that for centuries has welcomed people from across the globe, demonstrating that individuals of every color, faith and station can come together to pursue opportunity, build a community, and live with the blessing of human liberty. Remarks by the President to the United Nations General Assembly, supra.

The opening theme is commonality born of crisis. That commonality and crisis is centered on the experiences of the United States. It is grounded in the sense that this commonality is built on security and prosperity--inseparable halves of a whole around which the community of states, under the leadership of the American Republic, must construct an institutionalized managerial regime. "It is our destiny to bear the burdens of the challenges that I?ve addressed -- recession and war and conflict. And there is always a sense of urgency -- even emergency -- that drives most of our foreign policies. Indeed, after millennia marked by wars, this very institution reflects the desire of human beings to create a forum to deal with emergencies that will inevitably come." Id.

The inseparable character of prosperity and security is suggested by Mr. Obama by advancing a fundamental proposition--that the political conflict launched against the United States and the global effects of the collapse of the American economy that followed must be understood in tandem.

Outside the doors of this hall, the blocks and neighborhoods of this great city tell the story of a difficult decade. Nine years ago, the destruction of the World Trade Center signaled a threat that respected no boundary of dignity or decency. Two years ago this month, a financial crisis on Wall Street devastated American families on Main Street. These separate challenges have affected people around the globe. Men and women and children have been murdered by extremists from Casablanca to London; from Jalalabad to Jakarta. The global economy suffered an enormous blow during the financial crisis, crippling markets and deferring the dreams of millions on every continent. Id.

But not only must these be understood as strands of a single whole, but the two together represent the greatest threat to the integrating global order and its normative structures by suggesting an alternative equilibrium--one grounded in traditional divisions among global communities.

Underneath these challenges to our security and prosperity lie deeper fears: that ancient hatreds and religious divides are once again ascendant; that a world which has grown more interconnected has somehow slipped beyond our control. Id.

With a jab at the prior administration which Mr. Obama found impossible to resist ("These are some of the challenges that my administration has confronted since we came into office." Id.), Mr. Obama suggests the legal and political consequences of managing prosperity and security as an inseparable whole, under American leadership. "And today, I?d like to talk to you about what we?ve done over the last 20 months to meet these challenges; what our responsibility is to pursue peace in the Middle East; and what kind of world we are trying to build in this 21st century." Id.

Mr. Obama starts with a recitation of the critical role he has played in the rescue of the American (and global) economy and the importance of that effort in the protection of global prosperity (" I have had no greater focus as President than rescuing our economy from potential catastrophe. And in an age when prosperity is shared, we could not do this alone. So America has joined with nations around the world to spur growth, and the renewed demand that could restart job creation." Id.). These efforts have a substantially legal face. But not in the form of law within domestic legal orders, as a reformation of the governance structures of the global communities with derivative effects on national law.

We are reforming our system of global finance, beginning with Wall Street reform here at home, so that a crisis like this never happens again. And we made the G20 the focal point for international coordination, because in a world where prosperity is more diffuse, we must broaden our circle of cooperation to include emerging economies -- economies from every corner of the globe. Id.

Mr. Obama thus embraces a new form of supra national governance in which law assumes a secondary and derivative position. I have suggested the importance of these efforts in the construction of new governance frameworks. See, Larry Cat� Backer, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order (August 13, 2010), 17 Indiana Journal of Global Legal Studies -- (forthcoming 2011). This is viewed by Mr. Obama as a work in progress ("We have resisted protectionism, and are exploring ways to expand trade and commerce among nations. But we cannot -- and will not -- rest until these seeds of progress grow into a broader prosperity, not only for all Americans, but for peoples around the globe." Remarks by the President to the United Nations General Assembly, supra.).

Yet prosperity cannot be efficiently managed without asserting an appropriate management of security. Mr. Obama masterfully turns the American efforts against certain Islamist communities as a global effort to combat unruly and bandit forces with the turn of a phrase.

As for our common security, America is waging a more effective fight against al Qaeda, while winding down the war in Iraq. Since I took office, the United States has removed nearly 100,000 troops from Iraq. We have done so responsibly, as Iraqis have transitioned to lead responsibility for the security of their country. . . . While drawing down in Iraq, we have refocused on defeating al Qaeda and denying its affiliates a safe haven. In Afghanistan, the United States and our allies are pursuing a strategy to break the Taliban?s momentum and build the capacity of Afghanistan?s government and security forces, so that a transition to Afghan responsibility can begin next July. And from South Asia to the Horn of Africa, we are moving toward a more targeted approach -- one that strengthens our partners and dismantles terrorist networks without deploying large American armies. Id.

But this management of "extremists" requires the casting of a larger regulatory net--one that invokes law regimes more directly. "As we pursue the world?s most dangerous extremists, we?re also denying them the world?s most dangerous weapons, and pursuing the peace and security of a world without nuclear weapons." Id. The legal aspects of these efforts are centered on the formalities of nuclear non proliferation. "Earlier this year, 47 nations embraced a work-plan to secure all vulnerable nuclear materials within four years. We have joined with Russia to sign the most comprehensive arms control treaty in decades. We have reduced the role of nuclear weapons in our security strategy. And here, at the United Nations, we came together to strengthen the Nuclear Non-Proliferation Treaty." Id.

And thus, Mr. Obama turns to that other "extremist" group--those who control the state apparatus of Iran, now nicely conflated (in turn) with the extremists against which military action is appropriate in Iraq and Afghanistan. Prosperity, security, the marginalization of the extremist element in the global community and the legal framework within which this is managed is made clear.

As part of our effort on non-proliferation, I offered the Islamic Republic of Iran an extended hand last year, and underscored that it has both rights and responsibilities as a member of the international community. I also said -- in this hall -- that Iran must be held accountable if it failed to meet those responsibilities. And that is what we have done.
Iran is the only party to the NPT that cannot demonstrate the peaceful intentions of its nuclear program, and those actions have consequences. Through U.N. Security Council Resolution 1929, we made it clear that international law is not an empty promise.

Now let me be clear once more: The United States and the international community seek a resolution to our differences with Iran, and the door remains open to diplomacy should Iran choose to walk through it. But the Iranian government must demonstrate a clear and credible commitment and confirm to the world the peaceful intent of its nuclear program. Id.

This iron fist of legal process oriented and globally engaged America also has a softer side. It provides charity to its friends to pair prosperity with security. Pakistan and Haiti are advanced as crucial examples of the benefits of conformity and consequential American largesse. This managerial approach, grounded in prosperity and security, and fueled by the positive power of community building among peoples apparently incompatible, when forced to live together (the myth of New York referenced rhetorically at the start of the speech), is then offered as the medicine necessary for the "solution" of the "problem" of Jewish territorial self determination in the Middle East.

I hear those voices of skepticism. But I ask you to consider the alternative. If an agreement is not reached, Palestinians will never know the pride and dignity that comes with their own state. Israelis will never know the certainty and security that comes with sovereign and stable neighbors who are committed to coexistence. The hard realities of demography will take hold. More blood will be shed. This Holy Land will remain a symbol of our differences, instead of our common humanity.

I refuse to accept that future. And we all have a choice to make. Each of us must choose the path of peace. Of course, that responsibility begins with the parties themselves, who must answer the call of history. . . . . Now, peace must be made by Israelis and Palestinians, but each of us has a responsibility to do our part as well. Those of us who are friends of Israel must understand that true security for the Jewish state requires an independent Palestine -- one that allows the Palestinian people to live with dignity and opportunity. And those of us who are friends of the Palestinians must understand that the rights of the Palestinian people will be won only through peaceful means -- including genuine reconciliation with a secure Israel. Id.

And thus the deal--some sort of homeland for (non-Jewish) Palestinians but only by securing the acceptance of a Jewish Israel.

Israel is a sovereign state, and the historic homeland of the Jewish people. It should be clear to all that efforts to chip away at Israel?s legitimacy will only be met by the unshakeable opposition of the United States. And efforts to threaten or kill Israelis will do nothing to help the Palestinian people. The slaughter of innocent Israelis is not resistance -- it?s injustice. And make no mistake: The courage of a man like President Abbas, who stands up for his people in front of the world under very difficult circumstances, is far greater than those who fire rockets at innocent women and children. Id.

Yet applause was reserved only for half of the equation: "This time, we should draw upon the teachings of tolerance that lie at the heart of three great religions that see Jerusalem?s soil as sacred. This time we should reach for what?s best within ourselves. If we do, when we come back here next year, we can have an agreement that will lead to a new member of the United Nations -- an independent, sovereign state of Palestine, living in peace with Israel. (Applause.)" Id. To this, Mr. Obama can offer only a set of rhetorical questions: "But even as we confront immediate challenges, we must also summon the foresight to look beyond them, and consider what we are trying to build over the long term? What is the world that awaits us when today?s battles are brought to an end? And that is what I would like to talk about with the remainder of my time today." Id.

And the reminder of the governance framework of human rights on the combined enterprises of prosperity and security. "The idea is a simple one -- that freedom, justice and peace for the world must begin with freedom, justice, and peace in the lives of individual human beings. And for the United States, this is a matter of moral and pragmatic necessity." Id. But it is also a legal necessity--and another justification for the marginalization and coercive approach to managing the Taliban, among others. "Human rights have never gone unchallenged -- not in any of our nations, and not in our world. Tyranny is still with us -- whether it manifests itself in the Taliban killing girls who try to go to school, a North Korean regime that enslaves its own people, or an armed group in Congo-Kinshasa that use rape as a weapon of war." Id.

Again, the rhetorical trope of the myth of New York is invoked, in its aspects of unity of principles amid functionally inconsequential differences in implementaiton.

As I said last year, each country will pursue a path rooted in the culture of its own people. Yet experience shows us that history is on the side of liberty; that the strongest foundation for human progress lies in open economies, open societies, and open governments. To put it simply, democracy, more than any other form of government, delivers for our citizens. And I believe that truth will only grow stronger in a world where the borders between nations are blurred. Id.

There is a strong irony here. This theme is not Mr. Obama's, but rather that of his predecessor, Mr. Bush. This passage could have been ripped from the text of Mr. Bush's second inaugural address. And to the sane effect. Larry Cat� Backer, President Bush's Second Inaugural Address: A Revolutionary Manifesto For International Law in Chaotic Times, Law at the End of the Day, April 1, 2006. And like Mr. Bush, Mr. Obama would have the Americans manage the process of difference within a contained field of basic organizing principles.

America is working to shape a world that fosters this openness, for the rot of a closed or corrupt economy must never eclipse the energy and innovation of human beings. All of us want the right to educate our children, to make a decent wage, to care for the sick, and to be carried as far as our dreams and our deeds will take us. But that depends upon economies that tap the power of our people, including the potential of women and girls. That means letting entrepreneurs start a business without paying a bribe and governments that support opportunity instead of stealing from their people. And that means rewarding hard work, instead of reckless risk-taking. Remarks by the President to the United Nations General Assembly, supra.

This framework has a governance dimension. "Yesterday, I put forward a new development policy that will pursue these goals, recognizing that dignity is a human right and global development is in our common interest. America will partner with nations that offer their people a path out of poverty. And together, we must unleash growth that powers by individuals and emerging markets in all parts of the globe." Id.

For this purpose, civil society ought to be engaged--but only under the leadership of the state and its apparatus. The leadership principle of Marxist Lenininst states ((??)) is deployed in an ironic way to create a hierarchy of responsibility and management within global communities in which the state in general, and the most powerful states in particular, retain a governance pride of place.

Open society supports open government, but it cannot substitute for it. There is no right more fundamental than the ability to choose your leaders and determine your destiny. Now, make no mistake: The ultimate success of democracy in the world won?t come because the United States dictates it; it will come because individual citizens demand a say in how they are governed. Id.

The nature of the new governance suggests the power of control of framing principle (in the hands of powerful states) while the appearance of independence of action is left intact among those who must apply principle (but may apply it flexibly). It is in this way that flexibility is managed--and contained. And in this way Mr. Obama can suggest, accurately, that "Each of these countries gives life to democratic principles in their own way. " Id. Yet none of these states controls the framing principles (democracy, personal liberty, human rights and human rights interpretation) whcih each must naturalize within their domestic legal orders.

The common thread of progress is the principle that government is accountable to its citizens. And the diversity in this room makes clear -- no one country has all the answers, but all of us must answer to our own people.
In all parts of the world, we see the promise of innovation to make government more open and accountable. . . . And when we gather back here next year, we should bring specific commitments to promote transparency; to fight corruption; to energize civic engagement; to leverage new technologies so that we strengthen the foundations of freedom in our own countries, while living up to the ideals that can light the world. This institution can still play an indispensable role in the advance of human rights. . . . It?s time for every member state to open its elections to international monitors and increase the U.N. Democracy Fund. Id.

And thus Mr. Obama returns to community. "The world that America seeks is not one we can build on our own. For human rights to reach those who suffer the boot of oppression, we need your voices to speak out. . . . That belief will guide America?s leadership in this 21st century. It is a belief that has seen us through more than two centuries of trial, and it will see us through the challenges we face today -- be it war or recession; conflict or division." Id. But this is a community in which American leadership is paramount--precisely because the Americans represent the world in the construction of a society built by immigrants from all over the world. In this sense the United States represents a chosen people--a microcosm of the world and thus chosen to represent the world and its movement toward a "better future." The New York myth trope thus acquires a normative dimension.

It falls to us to fulfill that promise. And though we will be met by dark forces that will test our resolve, Americans have always had cause to believe that we can choose a better history; that we need only to look outside the walls around us. For through the citizens of every conceivable ancestry who make this city their own, we see living proof that opportunity can be accessed by all, that what unites us as human beings is far greater than what divides us, and that people from every part of this world can live together in peace. Id.

This is not a new idea. Mr. Obama made this point before, in his famous 2009 Cairo speech. See, Larry Cat� Backer, Mr. Obama Speaks in Egypt: "Islam is a Part of America"--The Ummah Wahida, and the State in Two Distinct World Orders, Law at the End of the Day, June 5, 2009.

Mr. Obama thus continues to emphasize the themes of management, consensus, engagement and conflation, all within a framework in which the United States retains a significant role in the construction of framing elements. He continues to develop the theme that the United States is a mirror of the world, and as its mirror in the mot legitimately authoritative position to reflect and elaborate the guiding principles that ought to bind the international community. But he has refined that position as well--providing an American concession to governance beyond law, and to the conflation of economics and politics, with respect to the management of which law will play an important instrumental role, but not the only one in the management of states, of global markets, of interactions between public and private actors and of the subordination of religious and ethnic groups all bent to the construction of a well managed global community functionally unified and apparanty distinct.

Full post as published by Law at the End of the Day on September 23, 2010 (boomark / email).