Legalism K

Legalism K
Notes
This is a critique of the law (more specifically normative legal
thought). It can be run as either just a state bad K or as a PIK
out of the plan text for softer K affs.
There are some cards specific to rights affs (e.g. affs that claim
advantages based off the right to privacy). You can still
read the generic links for those affs, but the rights links are
much stronger.
If youre wondering what normative legal thought is
Schlag 90 (Pierre, Professor of Law, University of Colorado, NORMATIVE AND
NOWHERE TO GO, Stanford Law Review (November 1990),
http://lawweb.colorado.edu/profiles/pubpdfs/schlag/SchlagSLR.pdf)
[FN38]. Quite the contrary. One important conventional understanding within the legal academy treats normative
legal thought as being opposed to formalism. This conventional understanding of normative legal thought is much
In conventional terms, normative legal

thought has been associated with a group of left-liberal legal scholars who favor
open-ended forms of value talk and argument in the courts and in the academy.
Their theory of legal legitimacy and legal meaning depends heavily and very rapidly
on the explicit moral justification of legal decisions. The normative legal
thinkers understand themselves to be opposed to a second group consisting of center-right
scholars: the doctrinalists. The doctrinalists are committed to more technical forms of legal argument that
narrower than my use of the expression in this essay.
they claim to be distinctly legal--different and separable from the general cultural run of moral or political
argument. Their theory of legitimacy and legal meaning inclines heavily and very rapidly toward legal positivism.
The two sides of this conventional dispute are aptly personnified by Ronald Dworkin and Robert Bork, respectively.
Compare R. DWORKIN, supra note 4, with Robert Bork, Neutral Principles and the First Amendment, 47 IND. L.J. 1
(1971). This conventional dispute has been extremely influential in fashioning the legal academy's understanding of
normative legal thought. Indeed, throughout the legal academy, normative legal thought is often conventionally
associated with the left-liberal plea for open-ended value talk and is typically opposed to technical doctrinalism.
Because the left-liberals have charged the doctrinalists with formalism and authoritarianism (see, e.g., Robin West,
The Authoritarian Impulse in Constitutional Law, 42 U. MIAMI L. REV. 531 (1988)), the prevalent understanding in
the legal academy is that normative legal thought stands in opposition to formalism. This essay tries to get beyond
Both sides are caught up within their own

formalism and both sides are pervasively normative. The claim here is that
both old-style doctrinalism and normative thought can most helpfully be understood
as two related moments within the same practice of normative legal thought--two
related moments that are highly reminiscent of the classic rules vs. standards
dispute. Indeed, one side emphasizes the need for closure, certainty, and generality,
while the other emphasizes the need for openness, flexibility, context, etc. As with
the classic rules vs. standards dispute, each jurisprudential moment collapses
into and produces the other--and both are related to each other in the manner of
an arrested dialectic. See Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379, 426-29 (1985).
this conventional understanding of the dispute.
Neg
1NC
1NC---Generic
Legal solutions to political problems cause externalization of
agency---rule of law removes individual responsibility
Rozo 4 (Diego Cageas, MA in Philosophy and Cultural Analysis, International
School for Humanities and Social Sciences, Universiteit van Amsterdam, Jan 2004,
Forgiving the Unforgivable: On Violence, Power, and the Possibility of Justice,
http://admin.banrepcultural.org/sites/default/files/forgiving_the_unforgivable.pdf,
Accessed 7/7/15)//LD
Benjamin thinks that laws interest in a monopoly of violence
vis--vis individuals is explained not by the intention of preserving legal ends but,
rather, by the intention of preserving the law itself. (CV 239) This intromission of the legal order
in even the most seemingly private and individual affairs is explained by the functioning of lawpreserving violence in its attempt to maintain the rule of law . As we have seen, law cannot
help feeling threatened by every possible act of not-yet-sanctioned violence. Therefore, the need for
enforcing the law becomes increasingly urgent wherever and whenever it may be
needed, even before this enforcing is effectively asked for lawpreserving violence is a
For reasons explained before,
threatening violence (CV 242); it exerts vengeance on those who dare question laws fate-imposed ends. And that
is exactly what the economics of violence consists of: looking for someone, anyone to blame for my own suffering.
The enforcing of law brings with it a never-ending search for culpable agents of the
suffering that law exerts on itself. The state looks insatiably for somebody to accuse anywhere. This is
why private affairs have to become part of the sphere of laws applicability: transgressions of the legal
code have to be made possible in every human activity for law to be enforced
everywhere, hence achieving an all-pervading presence . The enforcing of law opens an
economy of violence where justice becomes a matter of offsetting violence, hopefully with a lesser violence but
at its most brutal moment, law-preserving

violence ends up turning law on itself , namely, on the same institutions that were
created to protect it. Jean-Luc Marion dubs this economy of violence as a certain logic of evil, and
demonstrates its dangers: The more a political power perverts its actions in an infinite
vengeance, the more it has to end up exerting violence upon itself: the tyrant
distrusts himself; State Police is surveyed by other Police corps; the party is regularly depurated19 Within
factually with an ever-increasing violence. At the end,
the legal order the relations between individuals will resemble this logic where suffering is exchanged for more, but
legal suffering, because these relations are no longer regulated by the culture of the heart [Kultur des Herzens].
(CV 245) As Benjamin describes it, the legal
system tries to erect, in all areas where individual

ends could be usefully pursued by violence, legal ends that can be realized only by
legal power. (CV 238) The individual is not to take law in his own hands; no conflict should be susceptible of
being solved without the direct intervention of law, lest its authority will be undermined. Law has to present
itself as indispensable for any kind of conflict to be solved. The consequence of this infiltration
of law throughout the whole of human life is paradoxical: the more inescapable the rule of law is,
the less responsible the individual becomes . Legal and judicial institutions act
as avengers in the name of the individual. Even the possibility of forgiveness is monopolized by
the state under the right of mercy. Hence the responsibility of the person toward the others is
now delegated on the authority and justness of the law . The legal institutions, the
very agents of (legal) vengeance exonerate me from my essential responsibility
towards the others, breaking the moral proximity that makes every ethics possible.20 Thus I am no
longer obliged to an other that by his/her very presence would demand me to be
worthy of the occasion (of every occasion), because law, by seeking to regulate affairs between individuals,
makes this other anonymous, virtual: his otherness is equaled to that of every possible other. The Other becomes
faceless, making it all too easy for me to ignore his demands of justice, and even to exert on him violence just for
the sake of legality. The logic of evil, then, becomes not a means but an end in itself:21 state violence for the sake
of the states survival. Hence, the ever-present possibility of the worst takes the form of my unconditional
responsibility towards the other being delegated on the ideological and totalitarian institutions of a law gone astray
The undecidability of the origin of law, and its

consequent meddling all across human affairs makes it possible that the worst could
be exerted in the name of law. Even the very notion of crimes against humanity, which seeks to protect
in the (its) logic of selfpreserving vengeance.
the life of the population, can be overlooked by the state if it feels threatened by other states or by its own
population.22 From now on, my responsibility towards the Other is taken from me, at the price of my own existence
being constantly threatened by the imminent and fatal possibility of being signaled as guilty of an (for me)
the modern state protects my existence while bringing

on the terror of state violence the law infiltrates into and seeks to rule our most
private conflicts.
indeterminate offence. In this picture,
Normative legal thought obscures the pain and death of

disciplinary systems with language games
It is at this point that the legal thinker recognizes that the value (if any) of normative legal thought does not depend
the value (if

any) of normative legal thought depends on a decentered economy of bureaucratic
institutions and practices--such as those constituting and traversing the law school, the organized bar, the
courts--that define and represent their own operations, their own character, their own
performances, in the normative currency. Indeed, at this point, normative legal thought
takes on a completely different character. It becomes the mode of discourse by
which bureaucratic institutions and practices re-present themselves as subject to
the rational ethical-moral control of autonomous individuals (when indeed they are
not), just as normative legal thought constructs us (you and me) to think and act as
if we were at the center--in charge, so to speak--of our own normative legal thought (when
indeed we are not). Normative *186 legal thought can no longer be seen to govern, regulate or even
so much on its relation to the practices it seeks to describe or govern. It now becomes evident that
describe human activity. In fact, as a further step in this degeneration/development, it now appears that it is very
difficult to discern any significam difference between normative legal thought and the operation, performance
reproduction, and proliferation of bureaucratic practices and institutions. The two collapse into each other. At this
point, normative legal thought has become the operation, performance, reproduction, and proliferation of
bureaucratic practices and institutions. Normative legal thought is effective--very effective--but not in any way it
imagines itself to be. Its significance can no longer be in its specific prescriptions or conclusions (which are rarely
Normative legal thought--this form of thought so

concerned with producing normatively desirable worldly effects-- has, ironically,
become its own self-referential end. [FN52] And that end is coextensive with the operation,
adopted or even capable of being adopted).
performance, reproduction, and proliferation of bureaucratic practices and institutions. Welcome to the crash. My
when legal thinkers re-cognize that normative legal thought is an economy

of self-refereatial instrumentalist rhetorical structures run from elsewhere and
gradually seeping themselves of meaning, both constative and performative, playing this
language game of normative legal thought will lose a great deal of its moral and
intellectual cachet. It is one thing to understand one's self as engaged in a
normative enterprise aimed at improving the moral or political or economic
performance of the legal profession or the courts through normative argument. It is
quite another to understand one's self as a bureaucratic vehicle for the
sense is that
proliferation of a mode of discourse (normative legal thought) that is

coextensive with bureaucratic practice and institutional inertia. As self-images
go, my sense is that the latter is not really great. It is likely to lead to a certain degree of disenchantment. And my
one
reaction a normative legal thinker might have to all this is that it is all perfectly
horrible--and that we should all try to preserve our normative universe by using words
more carefully and by arguing very morally against instrumentalism and the
instrumentalization of law (and so on). But *187 this argument misses the point again.
This is history--not dialogue among disembodied Cartesian selves . And it
doesn't do much good to make normative arguments against history--especially not
if you keep misidentifying your own addressee, your agent of change, your subject.
Unfortunately, that is precisely what normative legal thought keeps getting
confused about. It keeps thinking that it is addressing some morally competent,
well-intentioned individual who has his [their] hands on the levers of power. [FN54] The
sense is that the disenchantment of normative legal thought is already well on its way. [FN53] Now,
pervasiveness of this metaphysical confusion--its routine character within the legal academy-- is precisely what
engenders the more socially situated confusions of "liberal" and "progressive" legal academics as to whether or not
the Warren Court is still sitting. [FN55] * * * All of this can seem very funny. That's because it is very funny. It is also
normative legal thought, as Robert Cover explained,

takes place in a field of pain and death . [FN56] And in a very real sense Cover was right. Yet as it
takes place, normative legal thought is playing language games-- utterly oblivious
to the character of the language games it plays, and thus, utterly uninterested in
considering its own rhetorical and political contributions (or lack thereof) to the field
of pain and death. To be sure, normative legal thinkers are often genuinely concerned with reducing the pain
deadly serious. It is deadly serious, because all this
and the death. However, the problem is not what normative legal thinkers do with normative legal thought, but
What is missing in normative legal

thought is any serious questioning, let alone tracing, of the relations that the
practice, the rhetoric, the routine of normative legal thought have (or do not have)
to the field of pain and death. And there is a reason for that: Normative legal thought
misunderstands its own situation. Typically, normative legal thought understands itself
to be outside the field of pain and death and in charge of organizing and policing
that field. It is as if the action of normative legal thought could be separated from the background field of pain
what normative legal thought does with normative legal thinkers.
and death. This theatrical distinction is what allows normative legal thought its own self-important, self-righteous,
selfimage--its congratulatory sense of its own accomplishments and effectiveness. All this self-congratulation works
very nicely so long as normative legal *188 thought continues to imagine itself as outside the field of pain and
death and as having effects within that field. [FN57] Yet it is doubtful this image can be maintained. It is not so
much the case that normative legal thought has effects on the field of pain and death--at least not in the direct,
normative legal thought is the pattern, is

the operation of the bureaucratic distribution and the institutional allocation of the
pain and the death. [FN58] And apart from the leftover ego-centered rationalist rhetoric of the eighteenth
originary way it imagines. Rather, it is more the case that
century (and our routine), there is nothing at this point to suggest that we, as legal thinkers, are in control of
normative legal thought. The problem for us, as legal thinkers, is that the normative appeal of normative legal
thought systematically turns us away from recognizing that normative legal thought is grounded on an utterly
normative
legal thought, rather than assisting in the understanding of present political and
moral situations, stands in the way. It systematically reinscribes its own aesthetic-its own fantastic understanding of the political and moral scene. [FN59] Until normative
unbelievable re-presentation of the field it claims to describe and regulate. The problem for us is that
legal thought begins to deal with its own paradoxical postmodern rhetorical situation, it will remain something of an
In its rhetorical structure, it will continue to populate the legal

academic world with individual humanist subjects who think themselves
empowered Cartesian egos, but who are largely the manipulated
constructions of bureaucratic practices--academic and otherwise. [FN60]
irresponsible enterprise.
The alternative is to create spaces beyond the grasp of

bureaucratic institutions our utopian ethic is key to breaking
out of normative legal thought in the present
Newman 11 (Saul, associate professor in the Department of Government in the
School of Public Affairs at American University in Washington, DC, Postanarchism: a
politics of anti-politics (October 2011), Journal of Political Ideologies, vol. 16 no. 3)
this aporetic moment of tension central to classical anarchism
generates new and productive articulations of politics and ethics. The disjunction between
At the same time,
politics and anti-politics is what might be called an inclusive disjunction: a compound in which one proposition is
true only if its opposing proposition is also true. Politics, at least in a radical, emancipatory sense, has only a
consistent identity if an anti-political, indeed utopian, dimension is also presentotherwise it remains caught within
existing political frameworks and imaginaries. Conversely, anti-politics only makes sense if it takes seriously the
tasks of politicsbuilding, constructing, organizing, fighting, making collective decisions and so onwhere
questions of power and exclusion inevitably emerge. However, this proximity to power does not invalidate
anarchism; rather, it leads to a greater sensitivity to the dangers of power and the need to invent, as mentioned
before, new micro-political practices of freedom through which power is subjected to an ongoing ethical
Where the political pole imposes certain limits, the anti-political pole, by
contrast, invokes an outside, a movement beyond limits. It is the signification of the
infinite, of the limitless horizon of possibilities. This is both the moment of utopia
and, in a different sense, the moment of ethics. Anarchism has an important utopian
dimension, even if the classical anarchists themselves claimed not to be utopians but materialists and
rationalists. Indeed, some utopian elementwhether acknowledged or notis an
essential part of any form of radical politics ; to oppose the current order, one
inevitably invokes an alternative, utopian imagination. However, we should try to
formulate a different approach to utopianism here: the importance of imagining an
alternative to the current order is not to lay down a precise programme for the
future, but rather to provide a point of exteriority as a way of interrogating
the limits of this order. As Miguel Abensour puts it: Is it not proper to utopia to propose a new way of
interrogation.
proceeding to a displacement of what is and what seems to go without saying in the crushing name of reality?37
We are crushed under the weight of the current order, which tells us that this is our
reality, that what we have now is all there is and all there ever will be .
Utopia provides an escape from this stifling reality by imagining an alternative to it;
it opens up different possibilities, new lines of flight. Here, we should think about
utopia in terms of action in the immediate sense, of creating alternatives within
the present, at localized points, rather than waiting for the revolution .
Utopia is something that emerges in political struggles themselves. 38 Ethics also
implies an outside to the existing order, but in a different sense. Ethics, as I understand it
here, involves the opening up of the existing political identities, practices, institutions and discourses to an Other
Ethics is more than the application of moral and rational

norms. It is rather the continual disturbance of the sovereignty of these
norms, and the identities and institutions that draw their legitimacy from them, in
the name of something that exceeds their grasp. Importantly, then, ethics is what disturbs
which is beyond their terms.
politics from the outside. This might be understood in the Levinasian sense of anarchy: Anarchy cannot be
sovereign like an arche. It can only disturb the Statebut in a radical way, making possible moments of negation
without any affirmation.39 The point is, however, that politics cannot do without anti-politics, and vice versa. The
two must go together. There must always be an anti-political outside, a utopian moment of rupture and excess that
disturbs the limits of politics. The ethical moment cannot be eclipsed by the political dimension; nor can it be
separated from it, as someone like Carl Schmitt maintained.40 If there is to be a concept of the political, it can only
be thought through a certain constitutive tension with ethics. At the same time, anti-politics needs to be politically
articulated; it needs to be put into action through actual struggles and engagements with different forms of
domination. There must be some way of politically measuring the anti-political imaginery, through victories,
defeats, and strategic gains and reversals. So while anti-politics points to a transcendence of the current order, it
cannot be an escape from it; it must involve an encounter with its limits, and this is where politics comes in. The
transcendence of power involves an active engagement with power, not an avoidance of it; the realization of
freedom requires an ongoing elaboration of new practices of freedom within the context of power relations.
1NC---Rights Affs
Claiming rights as granted by an external source rather than
active desire generates political passivity
Gabel 84 (Peter, Professor of Law, New College of California School of Law, San
Francisco, The Phenomenology of Rights-Consciousness and the Pact of the
Withdrawn Selves, Texas Law Review, Volume 62, 1984, pp. 1563-1599, Accessed
7/1/15)//LD
*edited for offensive language
rights themselves, we can see how they represent the
field of social interaction in the service of legalizing its alienated appearances . A
If we now turn our attention to the nature of
"right" has three phenomenological dimensions. First, to the extent that individuals are represented as "having"
rights signify social experiences that are merely possible rather than the
experiences themselves. To the extent that we think we have "the right to free
speech," "the right to make contracts," and so forth, we represent each individual
ontologically as being a passive locus of possible action, rather than as in action
with others already. Second, these rights are conceived as being granted to the
individual from an outside source, from "the State" which either creates them (in
the positivist version of the constitutional thought schema) or recognizes them (in the natural-law version)
through the passage of "laws." Thus, insofar as the individual emerges from his
passive station to act and interact with others on the basis of his rights, he does so
because he has been "allowed" to do so in advance. Third, intersubjective action itself is
rights, these
conceived to occur "through" or "by virtue of' the "exercise" of these rights. The behavior of the bank teller who
handles my deposit is represented in legal thought as resulting from or occurring as a consequence of the
simultaneous exercise of a great many rights, including the right to perform certain functions as a bank employee
(receiving money), the right to free speech (choice of words, gestures, and clothing), and perhaps even the right to
seniority (if, because of the length of her employment, she is a teller instead of someone else). Seen as a whole,
the "world" of this rights based schema is one in which originally passive
and disconnected individuals enter into relations with each other because they are
allowed to, relations which have the quality of being "okayed in advance" because
they occur only insofar as one is engaging in the right to do them . It may now be selfevident that this picture of the world is but an abstract representation of our own
alienated effort to distance ourselves from each other by representing our false
selves as our real selves, as "who we really are." In "making it the law" that individuals are to be conceived
therefore,
of as originally passive and disconnected "empty vessels," we secure our effort to constrain the active movement
By replacing
this active movement of desire with what we might call the "passive possibility"
of "having rights," we place the immediacy of our lived experience in a kind of
suspended animation that conforms precisely to the delay-time that self-observation inserts into our as-if
performances. In equating "legal" action with being "allowed" to act on the basis of
these rights, we make this self-observation a legal requirement of social action
itself, just as self-observation is an existential characteristic of our alienated effort
to be perpetually "on guard in advance" against the threat of excessive selfrevelation. Finally, by representing the movement of the intersubjective life-world as the working of a legal order
in which we interact through the "exercise" of these rights, we assert the legality of that quality in
our as-if performances that suggests action at a distance from itself, thus attributing
toward connection that constitutes our true togetherness by denying that this movement exists.
to this quality an "advance legitimacy" that is intended to make its illegitimacy

invisible hidden.
Normative legal thought obscures the pain and death of

disciplinary systems with language games
It is at this point that the legal thinker recognizes that the value (if any) of normative legal thought does not depend
the value (if

any) of normative legal thought depends on a decentered economy of bureaucratic
institutions and practices--such as those constituting and traversing the law school, the organized bar, the
courts--that define and represent their own operations, their own character, their own
performances, in the normative currency. Indeed, at this point, normative legal thought
takes on a completely different character. It becomes the mode of discourse by
which bureaucratic institutions and practices re-present themselves as subject to
the rational ethical-moral control of autonomous individuals (when indeed they are
not), just as normative legal thought constructs us (you and me) to think and act as
if we were at the center--in charge, so to speak--of our own normative legal thought (when
indeed we are not). Normative *186 legal thought can no longer be seen to govern, regulate or even
so much on its relation to the practices it seeks to describe or govern. It now becomes evident that
describe human activity. In fact, as a further step in this degeneration/development, it now appears that it is very
difficult to discern any significam difference between normative legal thought and the operation, performance
reproduction, and proliferation of bureaucratic practices and institutions. The two collapse into each other. At this
point, normative legal thought has become the operation, performance, reproduction, and proliferation of
bureaucratic practices and institutions. Normative legal thought is effective--very effective--but not in any way it
imagines itself to be. Its significance can no longer be in its specific prescriptions or conclusions (which are rarely
Normative legal thought--this form of thought so

concerned with producing normatively desirable worldly effects-- has, ironically,
become its own self-referential end. [FN52] And that end is coextensive with the operation,
adopted or even capable of being adopted).
performance, reproduction, and proliferation of bureaucratic practices and institutions. Welcome to the crash. My
when legal thinkers re-cognize that normative legal thought is an economy

of self-refereatial instrumentalist rhetorical structures run from elsewhere and
gradually seeping themselves of meaning, both constative and performative, playing this
language game of normative legal thought will lose a great deal of its moral and
intellectual cachet. It is one thing to understand one's self as engaged in a
normative enterprise aimed at improving the moral or political or economic
performance of the legal profession or the courts through normative argument. It is
quite another to understand one's self as a bureaucratic vehicle for the
proliferation of a mode of discourse (normative legal thought) that is
coextensive with bureaucratic practice and institutional inertia. As self-images
sense is that
go, my sense is that the latter is not really great. It is likely to lead to a certain degree of disenchantment. And my
one
reaction a normative legal thinker might have to all this is that it is all perfectly
horrible--and that we should all try to preserve our normative universe by using words
more carefully and by arguing very morally against instrumentalism and the
instrumentalization of law (and so on). But *187 this argument misses the point again.
This is history--not dialogue among disembodied Cartesian selves . And it
sense is that the disenchantment of normative legal thought is already well on its way. [FN53] Now,
doesn't do much good to make normative arguments against history--especially not

if you keep misidentifying your own addressee, your agent of change, your subject.
Unfortunately, that is precisely what normative legal thought keeps getting
confused about. It keeps thinking that it is addressing some morally competent,
well-intentioned individual who has his [their] hands on the levers of power. [FN54] The
pervasiveness of this metaphysical confusion--its routine character within the legal academy-- is precisely what
engenders the more socially situated confusions of "liberal" and "progressive" legal academics as to whether or not
the Warren Court is still sitting. [FN55] * * * All of this can seem very funny. That's because it is very funny. It is also
normative legal thought, as Robert Cover explained,

takes place in a field of pain and death . [FN56] And in a very real sense Cover was right. Yet as it
takes place, normative legal thought is playing language games-- utterly oblivious
to the character of the language games it plays, and thus, utterly uninterested in
considering its own rhetorical and political contributions (or lack thereof) to the field
of pain and death. To be sure, normative legal thinkers are often genuinely concerned with reducing the pain
deadly serious. It is deadly serious, because all this
and the death. However, the problem is not what normative legal thinkers do with normative legal thought, but
What is missing in normative legal

thought is any serious questioning, let alone tracing, of the relations that the
practice, the rhetoric, the routine of normative legal thought have (or do not have)
to the field of pain and death. And there is a reason for that: Normative legal thought
misunderstands its own situation. Typically, normative legal thought understands itself
to be outside the field of pain and death and in charge of organizing and policing
that field. It is as if the action of normative legal thought could be separated from the background field of pain
what normative legal thought does with normative legal thinkers.
and death. This theatrical distinction is what allows normative legal thought its own self-important, self-righteous,
selfimage--its congratulatory sense of its own accomplishments and effectiveness. All this self-congratulation works
very nicely so long as normative legal *188 thought continues to imagine itself as outside the field of pain and
death and as having effects within that field. [FN57] Yet it is doubtful this image can be maintained. It is not so
much the case that normative legal thought has effects on the field of pain and death--at least not in the direct,
normative legal thought is the pattern, is

the operation of the bureaucratic distribution and the institutional allocation of the
pain and the death. [FN58] And apart from the leftover ego-centered rationalist rhetoric of the eighteenth
originary way it imagines. Rather, it is more the case that
century (and our routine), there is nothing at this point to suggest that we, as legal thinkers, are in control of
normative legal thought. The problem for us, as legal thinkers, is that the normative appeal of normative legal
thought systematically turns us away from recognizing that normative legal thought is grounded on an utterly
normative
legal thought, rather than assisting in the understanding of present political and
moral situations, stands in the way. It systematically reinscribes its own aesthetic-its own fantastic understanding of the political and moral scene. [FN59] Until normative
unbelievable re-presentation of the field it claims to describe and regulate. The problem for us is that
legal thought begins to deal with its own paradoxical postmodern rhetorical situation, it will remain something of an
In its rhetorical structure, it will continue to populate the legal

academic world with individual humanist subjects who think themselves
empowered Cartesian egos, but who are largely the manipulated
constructions of bureaucratic practices--academic and otherwise. [FN60]
irresponsible enterprise.
The alternative is to create spaces beyond the grasp of

bureaucratic institutions our utopian ethic is key to breaking
out of normative legal thought in the present
School of Public Affairs at American University in Washington, DC, Postanarchism: a
politics of anti-politics (October 2011), Journal of Political Ideologies, vol. 16 no. 3)
this aporetic moment of tension central to classical anarchism
generates new and productive articulations of politics and ethics. The disjunction between
At the same time,
politics and anti-politics is what might be called an inclusive disjunction: a compound in which one proposition is
true only if its opposing proposition is also true. Politics, at least in a radical, emancipatory sense, has only a
consistent identity if an anti-political, indeed utopian, dimension is also presentotherwise it remains caught within
existing political frameworks and imaginaries. Conversely, anti-politics only makes sense if it takes seriously the
tasks of politicsbuilding, constructing, organizing, fighting, making collective decisions and so onwhere
questions of power and exclusion inevitably emerge. However, this proximity to power does not invalidate
anarchism; rather, it leads to a greater sensitivity to the dangers of power and the need to invent, as mentioned
before, new micro-political practices of freedom through which power is subjected to an ongoing ethical
Where the political pole imposes certain limits, the anti-political pole, by
contrast, invokes an outside, a movement beyond limits. It is the signification of the
infinite, of the limitless horizon of possibilities. This is both the moment of utopia
and, in a different sense, the moment of ethics. Anarchism has an important utopian
dimension, even if the classical anarchists themselves claimed not to be utopians but materialists and
rationalists. Indeed, some utopian elementwhether acknowledged or notis an
essential part of any form of radical politics ; to oppose the current order, one
inevitably invokes an alternative, utopian imagination. However, we should try to
formulate a different approach to utopianism here: the importance of imagining an
alternative to the current order is not to lay down a precise programme for the
future, but rather to provide a point of exteriority as a way of interrogating
the limits of this order. As Miguel Abensour puts it: Is it not proper to utopia to propose a new way of
interrogation.
proceeding to a displacement of what is and what seems to go without saying in the crushing name of reality?37
We are crushed under the weight of the current order, which tells us that this is our
reality, that what we have now is all there is and all there ever will be .
Utopia provides an escape from this stifling reality by imagining an alternative to it;
it opens up different possibilities, new lines of flight. Here, we should think about
utopia in terms of action in the immediate sense, of creating alternatives within
the present, at localized points, rather than waiting for the revolution .
Utopia is something that emerges in political struggles themselves. 38 Ethics also
implies an outside to the existing order, but in a different sense. Ethics, as I understand it
here, involves the opening up of the existing political identities, practices, institutions and discourses to an Other
Ethics is more than the application of moral and rational

norms. It is rather the continual disturbance of the sovereignty of these
norms, and the identities and institutions that draw their legitimacy from them, in
the name of something that exceeds their grasp. Importantly, then, ethics is what disturbs
which is beyond their terms.
politics from the outside. This might be understood in the Levinasian sense of anarchy: Anarchy cannot be
sovereign like an arche. It can only disturb the Statebut in a radical way, making possible moments of negation
without any affirmation.39 The point is, however, that politics cannot do without anti-politics, and vice versa. The
two must go together. There must always be an anti-political outside, a utopian moment of rupture and excess that
disturbs the limits of politics. The ethical moment cannot be eclipsed by the political dimension; nor can it be
separated from it, as someone like Carl Schmitt maintained.40 If there is to be a concept of the political, it can only
be thought through a certain constitutive tension with ethics. At the same time, anti-politics needs to be politically
articulated; it needs to be put into action through actual struggles and engagements with different forms of
domination. There must be some way of politically measuring the anti-political imaginery, through victories,
defeats, and strategic gains and reversals. So while anti-politics points to a transcendence of the current order, it
cannot be an escape from it; it must involve an encounter with its limits, and this is where politics comes in. The
transcendence of power involves an active engagement with power, not an avoidance of it; the realization of
freedom requires an ongoing elaboration of new practices of freedom within the context of power relations.
2NC---Top Shelf
2NC---FW
Normative legal thought is self-effacing breaking out of the
routine is key
If there's no one in charge at the other end of the line, why then is normative legal
thought in such a hurry to get its message across? [FN33] And why, particularly, is it always in
such a hurry to repeat the same old boring moves? There is an edge to these questions. And the edge comes in part
from our implicit assumption that normative legal thought is a kind of thought and that, as thought, it is in control of
If normative legal thought keeps

repeating itself, and if it is incapable of understanding challenges to its own
intellectual authority, that is because it is not simply or even fundamentally a kind
of thought. Normative legal thought is in part a routine--our routine. It is the highly
repetitive, cognitively entrenched, institutionally sanctioned, and politically enforced
routine of the legal academy--a routine that silently produces our thoughts and
keeps our work channeled within the same old cognitive and rhetorical matrices.
[FN34] Like most routines, it has been so well internalized *180 that we repeat it
automatically, without thinking. And like most routines, it remains unseen and unobserved--which
its own situation, its own form, its own rhetoric. But it isn't so.
is why it is so powerful. [FN35] It is an aspect--a significant aspect--of the unnoticed and untroubled overarching
epistemic economy within which (virtually) all contemporary legal thought is produced. In terms somewhat
misleading but more familiar to legal thinkers, normative legal thought is the latest incarnation of the Langdellian
Normative legal thought,

of course, does not consider itself a formalist enterprise. [FN38] And from the
normative perspective, indeed, it is not. From the normative perspective, the
formalist character of normative thought is not visible . [FN39] The very form within which
legacy, the latest variation on formalism [FN36]-- normative formalism. [FN37]
normative legal thought represents *181 the world prevents it from recognizing its own formalism. Normative
formalism, like other formalisms, is its own best self-defense. It is its own best self-defense in the sense that
whenever normative legal thought is intellectually challenged, it unconsciously re-establishes in the very form of
the intellectual struggle, its own fundamental understanding of the agenda, the issues, the legitimate forms of
argumentation, the criteria of failure and success, and so on. [FN40] Selfdefense, of course, is what disciplinary
solipsism is all about. [FN41] Admittedly, as solipsistic enterprises go, normative legal thought is pretty nice--or at
it's really nice to think that we are all self-directing,

coherent, integrated, rational, originary selves who are engaged in a rational
conversation in which we aim to resolve disagreement by resort to normative
dialogue. It's really nice to think that our political disagreements turn upon our own
self-conscious commitments to different "values." It's nice to think that law and
politics can be subservient to a grand conversation about who we think we should
become. It is all very nice. It is also absolutely unbelievable. What is more, the unbelievable character
least, it looks pretty nice. For instance,
of normative legal thought is becoming increasingly *182 evident. And as legal thinkers become increasingly aware
of the fantastic character of normative legal thought, the enchantment of normative legal thought weakens and
withers. Here, I'm just trying to help this disenchantment process along.
Their dismissive response is characteristic of disciplinary

thinking
[FN41]. This is why if one seeks to disrupt a disciplinary formalism -- normative or
otherwise--one cannot simply argue "politely" against it. "Polite" argument is
precluded because the very protocol of disciplinary engagement is always already
rigged. It has to to be: It wouldn't be a discipline if its very form were not already
structured so as to preserve the discipline and to derail subversive lines of inquiry.
What distinguishes disciplines from mere points of view, sets of ideas, or assortments of theories is that disciplines
Disciplines achieve security from

challenge by constituting the very self of the disciplinary thinker as a series of
rhetorical, cognitive, psychological defenses against troublesome or subversive
lines of inquiry. To master or even participate in a discipline is not just to learn an assortment
of ideas, techniques, authorities, etc. It is to become a certain kind of thinker, and hence, a
certain kind of person. When a discipline is then challenged (as it is here) disciplinary
thinkers are very likely to experience this challenge as an attack on the self --their
selves. It is thus not surprising that when disciplinary thinkers are confronted with challenges
to their discipline, they react personally and dismissively. They experience challenges
are linguistically, cognitively, and institutionally entrenched.
as "a way of fighting over whether our lives have been wasted." Calvin Trillin, A Reporter at Large: Harvard Law,
NEW YORKER, Mar. 26, 1984, at 53, 83 (quoting a Harvard Law School professor).
2NC---AT: Perm
The perms focus on normative action forecloses selfreflexivity, sanctions violence
So much for the top ten of normative legal thought in the eighties. Now you may have noticed that there are only
five entries in the top ten. That is because the rhetorical situation of normative legal thought is even more
desperate than I had initially imagined. To be sure, one could add other entries to the list, but then the redundancy
quotient would rise intolerably and things would become rather repetitive and boring. But then again, that is
precisely one of my points. And there is no point in overdoing it-- normative
legal thought is overdoing

it all by itself, getting more repetitive all the time, asking "What should we do? What
should the law be? What do you propose?" over and over again. In fact, even as you
read and even as I write, normative legal thought is busy urging us (you and me) to
ask these very same questions of this very essay at this very moment. "What
should we do? What's the point?" asks normative legal thought. "If normative legal
thought isn't going anywhere, what should we do instead?" "What do you propose?"
"What's the solution?" These familiar questions are usually asked in searching, serious, somber tones.
There is no trace of irony in their articulation--no self-consciousness at all. It is as if the intellectual
legitimacy, the political import, of the questions were themselves self-evident,
beyond question. [FN27] "Yes, yes--but what should we do? How do these
observations help?" Usually, the questions are asked with such earnest, self-assured
self-certainty that it is as if the body of knowledge that enables the questions to be
stated in the first place were somehow outside the problem, outside the difficulty-already intellectually whole, already politically competent to provide the answers.
[FN28] *178 "Right, right, but the question is, what should we do with all this?" Now you'll
notice that here the "What should we do?" is an interruption . It is an interruption posing
as an origin. It poses as an origin in that it takes itself to be the original motivation for
engaging in legal thought. [FN29] And yet here, the "What should we do?" interrupts
the process of trying to understand what enterprise we , as legal thinkers, are
already engaged in. It interrupts the process of attempting to reveal the
character of our disciplines and our practices as legal thinkers. "O.K., O.K., but
how would such revelations help us decide what we should do?" You'll notice that here (as
elsewhere) normative legal thought has a very pressing and urgent tone. It wants to know right away what should
And true to its name, normative legal thought wants to engage right
away in the enterprise of norm-selection. Normative legal thought wants to decide
as quickly as possible which norm (which doctrine, which rule, which theory)
should govern a particular activity. Now as intellectually stifling and politically narrow as the
be done. Right away.
enterprise of norm-selection may be, [FN30] it still offers legal thinkers some residual possibility of posing
normative legal
thought can't wait to shut down these intellectual and political openings as well. It
cannot wait to envelop these inquiries in its own highly stylized ethical-moral form
of norm-justification. Normative legal thought cannot wait to enlist epistemology,
semiotics, social theory or any other enterprise in its own ethical-moral argument
structures about the right, the good, the useful, the efficient (or any of their doctrinally
crystallized derivatives). It cannot wait to reduce world views, attitudes, demonstrations,
provocations, and thought itself, to norms. In short, it cannot wait to tell you (or
interesting philosophical, social, psychological, economic, or semiotic inquiries about law. Yet
somebody else) what to do. In fact, normative legal thought is so much in a hurry that
it will tell you what to do even though there is not the slightest chance that you
might actually be in a position to do it. For instance, when was the last time you were in
a position to put the difference principle [FN31] into effect, or to restructure *179 the
doctrinal corpus of the first amendment? "In the future, we should . . . . " When was the last time
you were in a position to rule whether judges should become pragmatists, efficiency purveyors, civic republicans, or
Normative legal thought doesn't seem overly concerned with such

worldly questions about the character and the effectiveness of its own
discourse. It just goes along and proposes, recommends, prescribes, solves, and resolves. Yet despite its
Hercules surrogates?
obvious desire to have worldly effects, worldly consequences, normative legal thought remains seemingly
unconcerned that for all practical purposes, its only consumers are legal academics and perhaps a few law
students--persons who are virtually never in a position to put any of its wonderful normative advice into effect.
[FN32]
Systemic critique is a better method than reactive surveillance

reform only radical restructuring can re-vitalize democracy
the plan is a single-issue movement that siphons off energy
from the collective struggle
Giroux 14 (Henry, Prof of Cultural Studies @ McMaster University, TOTALITARIAN
PARANOIA IN THE POST-ORWELLIAN SURVEILLANCE STATE,
http://philosophersforchange.org/2014/02/18/totalitarian-paranoia-in-the-postorwellian-surveillance-state/)
Nothing will change unless the left and progressives take seriously the subjective
underpinnings of oppression in the United States. The power of the imagination,
dissent, and the willingness to hold power accountable constitute a major threat to authoritarian
regimes. Snowdens disclosures made clear that the authoritarian state is deeply fearful of those intellectuals, critics, journalists
and others who dare to question authority, expose the crimes of corrupt politicians and question the carcinogenic nature of a
corporate state that has hijacked democracy: This is most evident in the insults and patriotic gore heaped on Manning and Snowden.
How else to explain, in light of Snowdens initial disclosures about the NSA, the concern on the part of government and intelligence
agencies that his disclosures have renewed a longstanding concern: that young Internet aficionados whose skills the agencies need
for counterterrorism and cyber defense sometimes bring an anti-authority spirit that does not fit the security bureaucracy.[81] Joel
F. Brenner, a former inspector general of the NSA made it very clear that the real challenge Snowden revealed was to make sure
that a generation of young people were not taught to think critically or question authority. As Brenner put it, young people who were
brought into the national security apparatus were not only selling their brains but also their consciences. In other words, they have
to adjust to the culture by endorsing a regime of one that just happened to be engaging in a range of illegalities that threatened
What is clear is that the corporate-security state provides an

honorable place for intellectuals who are willing to live in a culture of conformity. In
the foundations of democracy.[82]
this case as Arthur Koestler said some years ago, conformity becomes a form of betrayal which can be carried out with a clear
conscience.[83] At the same time, it imposes its wrath on those who reject subordinating their consciences to the dictates of
the first task of resistance is to make dominant power clear by

addressing critically and meaningfully the abuses perpetrated by the corporate
surveillance state and how such transgressions affect the daily lives of people in
different ways, the second step is to move from understanding and critique to the
hard work of building popular movements that integrate rather than get stuck
and fixated in single-issue politics. The left has been fragmented for too long, and the time has come to
authoritarian rule. If
build national and international movements capable of dismantling the political, economic and cultural architecture put in place by
the new authoritarianism and its post-Orwellian surveillance industries. This is not a call to reject identity and special-issue politics
as much as it is a call to build broad-based alliances and movements, especially among workers, labor unions, educators, youth
groups, artists, intellectuals, students, the unemployed and others relegated, marginalized and harassed by the political and
financial elite. At best, such groups should form a vigorous and broad-based third party for the defense of public goods and the
establishment of a radical democracy. This is not a call for a party based on traditional hierarchical structures but a party consisting
of a set of alliances among different groups that would democratically decide its tactics and strategies.
Modern history is
replete with such struggles, and the arch of that history has to be carried forward
before it is too late. In a time of tyranny, thoughtful and organized resistance is not a choice; it is a necessity. In the
struggle to dismantle the authoritarian state, reform is only partially acceptable. Surely, as Fred Branfman argues, rolling back
the surveillance state can take the form of fighting: to end bulk collection of
information; demand Congressional oversight; indict executive-branch officials when
they commit perjury; give Congress the capacity to genuinely oversee executive
agency; provide strong whistle-blower protection; and restructure the present
system of classification.[84] These are important reforms worth fighting for, but they do not go far
enough. What is needed is a radical restructuring of our understanding of
democracy and what it means to bring it into being. The words of Zygmunt Bauman are useful in understanding what is at
stake in such a struggle. He writes: Democracy expresses itself in continuous and relentless critique of institutions; democracy is an
anarchic, disruptive element inside the political system; essential, as a force of dissent and change. One can best recognize a
What cannot be emphasized

enough is that only through collective struggles can change take place against
modern-day authoritarianism. If the first order of authoritarianism is unchecked
secrecy, the first moment of resistance to such an order is widespread critical
awareness of state and corporate power and its threat to democracy, coupled with
a desire for radical change rather than reformist corrections . Democracy involves a sharing of
political existence, an embrace of the commons and the demand for a future that cannot arrive quickly enough. In short, politics
needs a jump start, because democracy is much too important to be left to the whims,
secrecy and power of those who have turned the principles of self-government
against themselves.
democratic society by its constant complaints that it is not democratic enough.[85]
Their prescriptive framework proves the link recreates

students as instruments of bureaucracy
But don't worry--be normative. My bet is that when normative legal thought takes note
of the crash, it will argue against it . . . on normative grounds, of course. [FN62] The
argument will be structured in terms of the determination of the epistemic by the
normative. [FN63] Or in simpler terms: "There is no crash . . . because to acknowledge
a crash (in law) would bring about *190 terrible social consequences, a loss of
meaning, etc. . . . Therefore, there can't be any crash. Therefore, there isn't any
crash." Another winning argument. This argument will likely be accompanied by great and moving efforts to
revive normative legal thought through the teaching of ethics and morality. [FN64] What else? Actually, one other
thing. Normative legal thought, this local offshoot of liberal humanism, can be expected to do its usual conservative
collapse move, and to mourn, in a nostalgic sort of way, the passing of the normative world. "In the old days, when
I think it would be unrealistic to

expect anything else of normative legal thought at present. Normative legal thought
simply does not possess the sort of cognitive or critical resources to recuperate from
the crash. From the perspective of normative legal thought, either the crash does
not exist, or if it does, it is simply an unaccountable, inexplicable intellectual and
cultural catastrophe. Indeed, in static terms, the existing categories, the existing grammar
of normative legal thought, are utterly incapable of providing any sort of
sophisticated account for the crash. Viewed dynamically, normative legal thought could conceivably
people were moral . . . . " Now, other than these sorts of responses,
begin to apprehend the crash and respond. But, of course, that's not where the energies of normative legal thought
are dedicated. On the contrary. Normative legal thought, like liberal humanism more generally, is spending
(virtually) all of its intellectual and psychic resources fueling a denial of the crash. Liberal humanism and normative
legal thought are both very good at denial. [FN65] They ought to be. They are the routine. They are in place. They
consider the scholarly exchanges

among normative legal thinkers. They all differ about all sorts of things. They differ about
are institutionally and cognitively embedded. By way of example,
"important" issues such as what should be the appropriate mix of community, liberty, freedom, equality,
empowerment, efficiency, etc. And while normative legal thinkers differ about these "important" normative issues,
there is one thing that they all agree upon, over and over again . . . without even having to
think about it. What they all agree upon, in this implicit unexamined sort of way, is that
they are all autonomous, rational, morally competent individuals who are having a
meaningful, important, and effective discussion about how society or some
subdivision thereof should be organized. This pleasant fantasy is harmless enough,
except that it reproduces legal academics and law students (and hence lawyers) in
the image of humanist individual subjects. This, too, is a harmless self-indulgence,
except that it provides instrumentalist bureaucracies with a n absolutely marvelous
and *191 captivating rhetoric that defines, organizes, routinizes, and services
their clientele. It's all really neat. 7-11 sells freedom (which you can find in their Slurpees). Pepsi brings you
the downfall of the Berlin Wall. And normative legal thought guides the development of the law.
2NC---AT: CLS Bad

Despite benefits of some litigation, liberal rights discourse
ultimately places corporate power over community welfare
Hardwick 91 (John, The Schism Between Minorities and the Critical Legal
Studies Movement: Requiem for a Heavyweight? (1991), Boston College Third
World Law Journal vol. 11 no. 1)
The CLS responses undertake a pragmatic defense of the Movement's rights
discourse critique. This defense holds that premising liberal rights theory on the
belief in the existence of fundamental, natural, formalistic rights ignores the
reality that liberal rights discourse developed first as a politically
recognized social construction and then became legitimate law through
positive enactment. 136 The long line of well-recognized social, political, and scientific movements
contributing to the current version of liberal rights discourse illustrates this developmental reality. From the
philosophical writings of Descartes, through Marxism, the issues of the existence and utility of rights have
Critical Legal Scholars acknowledge the value of

victories in litigation brought by rights discourse to minorities and other societally
marginalized groups of people. 138 The popular perception of liberal rights discourse
incorrectly envisions it as a form of protection for numerically large groups of
people, such as social or class groupings (based upon class or race). But the
historical roots of the development of liberal rights discourse in this country, CLS
argues, indicates otherwise. These historical roots indicate that liberal rights
discourse originated as a form of protection for individual private
property.139 The original framers of the liberal rights legal system established the system as protection from
the pitfalls of popular revolt. 140 To date, the law affords the benefits of collective rights only
to corporations based upon their special position in relation to the state in a
capitalistic economy.141 Arguably, minorities might obtain more direct benefit from
the implementation of a form of group rights or entitlements. As illustrated by CLS's
deconstruction of the normative touchstones for contract law, legal rules derived from principles of
capitalism and liberalism provide little stability and predictive value to individual
citizens. 142 For example, the judiciary's freedom to choose between private individual rights and the state's
commanded considerable intellectual energy.137
public interest creates instability and indeterminacy. Also, in family law, courts decide between a parent's private
right to family autonomy and the state's interest in the protection of abused or neglected children. 143 In labor law,
courts decide between "the private rights of association of labor unions" and the state interest in restraining the
union's unreasonable exercise of power over its members.144 CLS "condemns" judicial balancing tests because
they reinforce the existence of conflicting values and require a judge to choose between them without a normative
rooting rights discourse in an ideal more

egalitarian and communitarian than the competitively individualist liberal ideal
better serves the interests of minorities and marginalized groups.146 The courts' role
as unanchored arbiter of those interests necessarily would be minimized. Thus, a
theory of social justice. 145 Additionally, CLS argues that
measure of stability and determinacy would be restored to decisions involving groups less powerful than the groups
controlling the machinery of the legal system. Subtextually, the Critical Legal Scholars respond to the CLS
Movement's failure to address racism by providing exhaustive historical references and sociological statistics
The role of racism in the perpetuation

of maldistributions of wealth and power is also explored. True to form, the CLS
scholars embark on this exploration using deconstruction . In particular, CLS trashes
the theory of equality of opportunity which, mainstream jurisprudence alleges,
supports our economic system and democratic form of government. 148 CLS exposes this
documenting the pervasive existence of racism in society.147
notion as essentially an illusion. Popular perceptions hold that equal access is available to public offices and
employment positions-performance meritoriously determines which positions are attained, but each citizen has the
opportunity to compete. But in reality racial dichotomies in wealth and power determine access to positions in
public office and private business. Instead of ability, talent, and performance determining access, economic status
the current economic status of many

minorities stems in part from historical, economic and political discrimination fueled
by racism. Thus, CLS argues, deconstruction of the ideological assumptions
underpinning the notion of equality of opportunity reveals inherent indeterminacy.
typically bears the greatest determinative value. 149 Moreover,
The CLS scholars perform further deconstruction on the notion of equality of opportunity by revealing the
contradictions underlying the concepts of ability and talent. They argue that "there is no such thing as a natural and
objective 'talent' .... [S]uch skills are socially and historically contingent, the ones a particular culture needs and
wants in its time."15o The more distorted the power relations within a culture, the more likely that the powerful will
bear the valued talents. 151 This critique applies to heavy reliance by the academic community upon standardized
test scores in evaluating student performance. 152 The premise underlying the argument holds that the tests
reward culturally and economically biased knowledge. 153 This bias segregates the testing population into the
already crystallized cultural and economic hierarchies. 154 The declining emphasis upon standardized test scores
by academic institutions supports the flaws exposed by the CLS deconstruction. 155
2NC---Impacts
2NC---Impact Framing
Structural violence outweighs hypothetical future conflicts it
lays the seeds for environmental degradation and war---impact
is extinction
Szentes 8 (Tams, Professor Emeritus at the Corvinus University of Budapest,
and member of the Hungarian Academy of Sciences, Globalisation and prospects of
the world society
http://www.eadi.org/fileadmin/Documents/Events/exco/Glob.___prospects_-_jav..pdf)
*edited for offensive language
Its a common place that human society can survive and develop only in a lasting real peace .
Without peace countries cannot develop. Although since 1945 there has been no world war, but --numerous local
wars took place, --terrorism has spread all over the world, undermining security even in the most developed and
powerful countries, --arms
race and militarisation have not ended with the collapse of the Soviet bloc,
escalated and continued, extending also to weapons of mass destruction and misusing enormous resources
invisible hidden wars are suffered by the poor and
oppressed people, manifested in mass misery, poverty, unemployment, homelessness,
starvation and malnutrition, epidemics and poor health conditions, exploitation and
oppression, racial and other discrimination, physical terror, organised injustice, disguised forms of
but
badly needed for development, --many
violence, the denial or regular infringement of the democratic rights of citizens, women, youth, ethnic or religious
and last but not least, in the degradation of human environment, which means
that --the war against Nature, i.e. the disturbance of ecological balance, wasteful management of
natural resources, and large-scale pollution of our environment , is still going on, causing also losses
and fatal dangers for human life. Behind global terrorism and invisible wars we find striking
international and intrasociety inequities and distorted development patterns , which
tend to generate social as well as international tensions, thus paving the way
for unrest and visible obvious wars . It is a commonplace now that peace is not merely the
absence of war. The prerequisites of a lasting peace between and within societies involve not
only - though, of course, necessarily - demilitarisation, but also a systematic and gradual
elimination of the roots of violence, of the causes of invisible hidden wars, of the
structural and institutional bases of large-scale international and intra-society inequalities,
exploitation and oppression. Peace requires a process of social and national
emancipation, a progressive, democratic transformation of societies and the world bringing about equal
minorities, etc.,
rights and opportunities for all people, sovereign participation and mutually advantageous co-operation among
nations. It further requires a pluralistic democracy on global level with an appropriate system of proportional
representation of the world society, articulation of diverse interests and their peaceful reconciliation, by non-violent
conflict management, and thus also a global governance with a really global institutional system. Under the
contemporary conditions of accelerating globalisation and deepening global interdependencies in our world,
peace is indivisible in both time and space. It cannot exist if reduced to a period only after or before war, and
cannot be safeguarded in one part of the world when some others suffer visible or
invisible hidden wars. Thus, peace requires, indeed, a new, demilitarised and democratic world order, which
can provide equal opportunities for sustainable development. Sustainability of development (both on national and
world level) is often interpreted as an issue of environmental protection only and reduced to the need for preserving
the ecological balance and delivering the next generations not a destroyed Nature with overexhausted resources
no ecological balance can be ensured, unless the deep

international development gap and intra-society inequalities are substantially
reduced. Owing to global interdependencies there may exist hardly any zero-sum-games, in which one can
and polluted environment. However,
gain at the expense of others, but, instead, the negative-sum-games tend to predominate, in which everybody
the actual question is not about

sustainability of development but rather about the sustainability of human
life, i.e. survival of [hu]mankind because of ecological imbalance and globalised terrorism.
must suffer, later or sooner, directly or indirectly, losses. Therefore,
When Professor Louk de la Rive Box was the president of EADI, one day we had an exchange of views on the state
and future of development studies. We agreed that development studies are not any more restricted to the case of
underdeveloped countries, as the developed ones (as well as the former socialist countries) are also facing
development problems, such as those of structural and institutional (and even system-) transformation,
requirements of changes in development patterns, and concerns about natural environment. While all these are
true, today I would dare say that besides (or even instead of) development studies we must speak about and
make survival studies. While the monetary, financial, and debt crises are cyclical,
we live in an almost
permanent crisis of the world society, which is multidimensional in nature, involving not only economic but
also socio-psychological, behavioural, cultural and political aspects. The narrow-minded, electionoriented, selfish behaviour motivated by thirst for power and wealth, which still
characterise the political leadership almost all over the world, paves the way for the final , last
catastrophe. One cannot doubt, of course, that great many positive historical changes have also taken place in
the world in the last century. Such as decolonisation, transformation of socio-economic systems, democratisation of
political life in some former fascist or authoritarian states, institutionalisation of welfare policies in several
countries, rise of international organisations and new forums for negotiations, conflict management and
cooperation, institutionalisation of international assistance programmes by multilateral agencies, codification of
human rights, and rights of sovereignty and democracy also on international level, collapse of the militarised Soviet
bloc and system-change3 in the countries concerned, the end of cold war, etc., to mention only a few. Nevertheless,
the crisis of the world society has extended and deepened, approaching to a point of bifurcation that necessarily
Under the
circumstances provided by rapidly progressing science and technological
revolutions, human society cannot survive unless such profound intra-society
and international inequalities prevailing today are soon eliminated. Like a single
spacecraft, the Earth can no longer afford to have a 'crew' divided into two parts: the rich,
privileged, wellfed, well-educated, on the one hand, and the poor, deprived , starving, sick and
uneducated, on the other. Dangerous 'zero-sum-games' (which mostly prove to be negative-sum-games) can
puts an end to the present tendencies, either by the final catastrophe or a common solution.
hardly be played any more by visible or invisible wars in the world society. Because of global interdependencies, the
apparent winner becomes also a loser. The real choice for the world society is between negative- and positive-sumgames: i.e. between, on the one hand, continuation of visible and invisible wars, as long as this is possible at all,
and, on the other, transformation of the world order by demilitarisation and democratization. No ideological or
terminological camouflage can conceal this real dilemma any more, which is to be faced not in the distant future, by
the next generations, but in the coming years, because of global terrorism soon having nuclear and other mass
destructive weapons, and also due to irreversible changes in natural environment.
2NC---Turns Case
Collective indiscipline is crucial to resisting surveillance their
reformist focus leaves the states security logic intact---means
the aff doesnt solve
School of Public Affairs at American University in Washington, DC, Politics of
Postanarchism (2010), Edinburgh University Press, pp. 170-173)
Radical politics is nevertheless confronted today by formidable forms of power. As if in anticipation of future
Securitisation becomes
the dominant paradigm of the state; the matrix for an unprecedented deployment
of strategies and technologies of control, surveillance and pre-emption, and for a
permanent war-like mobilisation. The continual blurring of different forms of dissidence and protest into
insurgencies, the power of the state has exponentially increased in recent years.
the idea of a threat to state security climate change and anti-war protestors and activists being arrested under
anti-terrorist powers, for example suggests that the so-called war on terrorism has as its target all those who
dissent from the state-capitalist order. At the same time, however, we should see this logic of securitisation and
exception as a reaction to a certain crisis in the symbolic order of the nation-state under conditions of capitalist
globalisation. The nation-state as the container of sovereignty is less certain; its boundaries and identity are less
clearly delineated. Security, therefore, becomes a way for sovereignty to re-articulate itself in this more fluid global
order. Through mechanisms of security, state power spills out beyond its own borders, constructing networks of
surveillance, incarceration, control and war making that are no longer strictly determined by national boundaries.
Prisons that are not prisons but camps, wars are no longer wars but policing operations; global networks of
surveillance and informationsharing we are in the midst of, as Agamben would put it, a zone of indistinction, 3 in
which national sovereignty blurs into global security while at the same time reifying and fetishising existing borders,
First, the
logic of security itself, which has become so ubiquitous and omnipresent today, has
to be seen as mechanism of de-politicisation: it is way of imposing a certain order
on social reality which is selflegitimising and beyond question; it is an ideology
that authorises the infinite accumulation of state power . 4 Moreover, as
Foucault showed, the idea of security as it functioned in liberal discourses of government in the
eighteenth century has become coextensive with the idea of freedom itself. 5
Today we have come to think of freedom only as strictly circumscribed by security;
freedom and security become part of a binary, in which the former cannot be
imagined without the latter, and in which the former always gives way to the
exigencies and prerogatives imposed by the latter. The liberal idea of an
appropriate balance between security and liberty is an illusion . The only vision
and erecting new ones everywhere. These developments open up two important sites for contestation.
the security paradigm offers us with its pernicious technologies and its perverse logic which grips us in a double
bind is an empty, controlled, over-exposed landscape from which all hope of emancipation has faded, and where
all we have left to do is obsessively measure the risks posed to our lives from the ever-present spectre of
catastrophe. The security paradigm intensifies a micro-politics of fear, producing a kind of generalised neurosis. 6
It
is against this state fantasy of security , and the affect of fear and despair that it produces, that
radical politics must stake out its ground. It must reassert the hope of emancipation
and affirm the risk of politics. This involves more than clawing back lost
liberties, but rather inventing a new language of freedom that is no longer
conditioned by security. Freedom must be discovered beyond security, and this can
be achieved only through practices of political contestation , through forms of
resistance, through modes of collective indiscipline and disobedience . For
instance, the refusal and subversion of surveillance, and even the surveillance of
surveillance, 7 become part of a new language of resistance that expresses the
desire for a life that no longer seeks to be secured. Secondly, the question of borders emerges
as one of the focal points for radical political struggles today. The symbolic crisis of the nationstate leads not to the
erosion of borders but rather to their mobility, fluidity and ubiquity. Rather than the border disappearing, it appears
everywhere, both internally and externally, intersecting with a vicious racist and anti-immigrant politics. Balibar
refers to the polysemic and heterogeneous nature of borders: the fact that borders are experienced in different
ways by different people, depending on race, nationality, social class and so on; and the fact that some borders are
no longer situated at the borders at all, in the geographical-politico-administrative sense of the term. 8 Here we
might think of off-shore detention sites and processing centres for illegal migrants: localities, heterotopias of
domination which find their strange counterpart in internalised borders gated communities with elaborate security
systems, or police blockades and security cordons at demonstrations; or the deterritorialised European border
control and surveillance zones authorised by the Schengen Convention, borders which can be arbitrarily tightened
or relaxed. Indeed, the border symbolised by the infamous Israeli security fence or the wall being constructed
along the US Mexico border has become the most striking feature of a global order that claims to be about the
free circulation of goods and people. However, it is in contesting and disrupting these border control measures, in
opposing practices of detention, or in fighting for the rights of illegal migrants, that various activist groups and
networks such as No Borders have highlighted this central contradiction and potential fault line in global state
capitalism. Power today consists in the control and surveillance of movement both internally and externally and
the mobilisation of borders. By asserting the right to move, to cross borders and territories freely, activist groups
attempt to disrupt this deployment of power, thus calling into question the very sovereignty of the state. Moreover,
the figure of the refugee (or illegal migrant) the figure whom Arendt described as not
even having the right to have rights because he does [they do] not belong to the
political order of the state embodies, I would argue, without wanting to diminish the extent of his or
her suffering and vulnerability, alternative sites of politics; the possibility of a new
postnational space from which radical demands can be made , and in which new
collective political identities can be constructed. 9 These various forms of power, and
the struggles that have emerged against them, take place on the threshold of
biopolitics. Without wanting to entirely buy into Hardts and Negris thesis about the total subsumption of life by
capitalism, it is nevertheless apparent that the control, regulation and manipulation of life itself, down to its
biological substratum, is and has been for some time the ultimate horizon of the state and capitalism. The
conception of life as an organism whose desires are predictable and biologically determined, whose unseen dreams
and dangerous pathologies can be gazed upon and whose behaviours can be controlled and manipulated through
the application of biomedical and surveillance technologies has become the overwhelming fantasy of our time. 10
Moreover, as Roberto Esposito argues, biopolitics can be understood only through a paradigm of immunisation, in
which, just as the biological organism seeks to protect itself from contaminants, the political body seeks to secure
itself against the outsiders that threaten its integrity 11 accounting for the proliferation of figures of the enemy
Radical politics today must

come to terms with this logic of biopolitics and immunisation, and find ways of
contesting its terms and coordinates. At the end of his lecture series Society must be Defended, in
today, whether it be the terrorist, Muslim, illegal immigrant or criminal.
which he explores the genesis of biopower in the eighteenth century, showing how it intersected with eugenics,
biologism and state racism in the nineteenth and twentieth centuries, Foucault charges (albeit somewhat unfairly)
the socialist tradition including anarchism with a neglect of the problem of biopolitics and, thus, a hidden
complicity with discourses of racism. 12 What might, then, an anarchist critique of biopolitics be? To formulate a
conception of political community that does not seek to immunise itself against the other; and to invent modes of
life and practices of freedom that are unpredictable and, thus, are resistant to discipline, remain the central
problems for radical politics. Despite its early scientism a scientism that was never, in any case, as absolute as
that of Marxism I would say that anarchism, with its focus on liberty and equality beyond the state, on its ethical,
even spiritual dimension, 13 is best equipped to formulate notions of politics and subjectivity that exceed the grasp
of biopolitics.
2NC---Turns Case---Rights Affs

Seeking rights through legal reform ultimately increases
surveillance
Smart 89 (Carol, feminist sociologist and academic at the University of
Manchester. Feminism and the Power of Law (1989), Routledge)
The second issue was more difficult. Clearly the court had not given prior authorization for the payment to Mrs B
which, under the Adoption Act, would have been the only way that such a financial exchange could have been
condoned. So the judge argued that the courts had the power to give this authorization retrospectively. It was,
however, only possible to construct this argument by reference to a criterion outside the coherence of the strict
legal parameters of the case. This criterion was the best interests of the child. This criterion has been used in
cases involving children, especially divorce cases where custody has been disputed, since the nineteenth century in
the UK (see Brophy 1985). As Thery (1986) has argued, the judiciarys use of this criterion has been criticized on the
basis that it is an empty concept, that it merely disguises support for the patriarchal order, and that it is an
I am less
concerned with these issues here than with the resort to an undeniably non-legal
criterion in the construction of a legal judgement. The history of the idea of children as a specific
irrelevance because the courts merely rubber stamp agreements made by parents. However,
category of persons with special needs has been traced (Aris 1979) and it is clearly part of the growth of the
human sciences especially biology, medicine, and the psy professions.
As statute law extended itself
more and more to cover family matters and children (e.g. legislation covering child labour,
divorce, domestic violence, age of marriage and consent) so it encroached upon those areas of
special concern to the emergent psy professions. It is not correct to depict this
historical development in terms of law being challenged by the new discourses;
rather law attempts to extend its sovereignty over areas constructed by the
discourses of the human sciences as significant to the disciplining of the social body.
But law extended its legitimacy by embracing the objects of this discourse. For example,
as the medical profession constructed homosexuality as a perversion ultimately in
need of treatment, so the law extended its powers over homosexual activity. As
children were identified as a special category of great importance to the regulation
of populations (through proper socialization, education, health matters, etc.) so the law extended its
protection of children by introducing legislation on the age of consent,
procurement, incest, and so on. So we can see a form of cooperation rather than conflict and a
process by which law extends its influence into more and more personal or
private areas of life. In this respect law is most definitely exercising a mode of
disciplinary regulation. With each of these moves law incorporated the terms of the
discourses of the human sciences and, I would argue, extended its exercise of power to
include the new technologies identified by Foucault. Hence law retains its old power, namely
the ability to extend rights, whilst exercising new contrivances of power in
the form of surveillance and modes of discipline.
Legal rights can only be secured through increased

surveillance and regulation
Smart 89 (Carol, feminist sociologist and academic at the University of
Manchester. Feminism and the Power of Law (1989), Routledge)
There are less dramatic examples of juridogenesis. Even the growth of rights and rights claims can be seen to fit
into this analysis. As outlined in Chapter Seven,
the growth of legal rights which can be claimed
from the state has induced the concomitant growth of individual regulation. Hence
rights can be claimed only if the claimant fits the category of persons to whom the
rights have been conceded. Hence the state must have a detailed knowledge of
each individual in terms of marital status, employment status, citizenship status,
age, sex, legitimacy, contributions records, and so on. In order to claim rights the
individual must fit into the specified categories; the rights are not basic rights but formal rights
and conformity to specification is a prerequisite for exercising such rights. The extension of rights
has therefore been linked to the growth of the technology of the
disciplinary society. More rights come at the cost of the potential for greater
surveillance and greater conformity and the claim for new rights brings about the
possibility of new forms of regulation. For example the possible creation of legal rights in relation to
frozen embryos or in relation to human gametes also creates the possibility of widespread genetic fingerprinting.
Such measures are part of the juridogenic nature of legal remedies.
2NC---Satellite Neolib Impact

Legalism itself is a form of surveillance that constrains the
working class and condones neoliberalism
Shantz 12 (Jeffery, faculty member in the Department of Criminology at
Kwantlen Polytechnic University. Learning to Win: Anarchist Infrastructures of
Resistance (2012), Anarchist Pedagogies: Collective Actions, Theories, and Critical
Reflections on Education, ed. Robert H. Haworth, PM Press)
over the past few decades working-class opposition in North America
has been contained largely within official, typically legalistic channels. Most common
This has meant that
among these have been established bargaining and grievance procedures via union representatives in economic
ma6ers. This has been accompanied by a containment of political action within the official channels of party politics
and elections. Indeed the separation between economic and political spheres (and the relegation of unions to the
limited terrain of economic management) is a reflection, and result of, the collapse of infrastructures of resistance
that expressed the connections, even unity, of economic and political action, and the need for organizations that
Activities such as occupations,

blockades, wildcat strikes, and sabotage have been dismissed or diminished within
unionized workplaces in which unions act as a level of surveillance and regulation of
workers, attempting to contain their actions within the framework of contracts with
employers. Indeed the main role of the unions became supervision of the contract during periods between
recognized the connections between struggles in these areas.
bargaining and symbolic mobilization to support official union negotiations during legal bargaining. Rank-and-file
militants have faced disciplinary actions, lack of support, or outright shunning by union officials. Contracts include
provisions that prohibit wildcats, as agreed to by the union representatives. In Canada, the institutionalization of
unions as economic managers has been accompanied by the institutionalization of working-class politics within
electoral politics in campaigns of the New Democratic Party federally and provincially, at national and local levels.
Politics has been reduced to party campaigns and lobbying for legislative reform as
proposed and channeled through NDP caucuses (Shantz, 2009b). In the current period
these institutional pressures and habits have constrained working-class
responses to structural transformations of neoliberalism and economic crisis. Unions
have sought to limit losses rather than make gains. The approach has been to negotiate severance deals that limit
the harm done to former employees (and members) rather than contest the rights of employers and governments
These arrangements have also

engendered a certain faith in or reliance upon the system among the working classes.
Rather than seeking new relations, a new society, the institutions of the working
class presented and replayed the message that working-class desires and needs could not
only be met within capitalist society, but, even more, depended upon capitalism for their
realization. Such a notion played into the trickle-down fantasies of neoliberal
Reaganomics, which insisted that policies and practices that benefited business should be pursued as some of
the gains made by capital would eventually find their way to the working class and the poor. Such was the
justification for the massive multi-million-dollar bailouts handed to
corporations as part of the economic crisis of 2008 and 2009.
to determine the future of workplaces and workers livelihoods.
Neoliberalism guarantees extinction and social crisis

Molisa 14 (Pala Basil Mera, Philosophy PhD, Accounting For Apocalypse ReThinking Social Accounting Theory And Practice For Our Time Of Social Crises And
Ecological Collapse,
http://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/3686/thesis.pdf?
sequence=2)
Ecologically too, the situation is dire. Of the many measures of ecological well-being topsoil loss,
groundwater depletion, chemical contamination, increased toxicity levels in human beings, the number
and size of dead zones in the Earths oceans, and the accelerating rate of species extinction and loss of
biodiversity the increasing evidence suggests that the developmental trajectory of the dominant economic culture
necessarily causes the mass extermination of non-human communities, the systemic destruction and disruption of
natural habitats, and could ultimately cause catastrophic destruction of the biosphere. The latest
Global Environmental Outlook Report published by the United Nations Environment Program (UNEP), the GEO-5 report, makes for
sobering reading. As in earlier reports, the global trends portrayed are of continuing human population growth, expanding economic
growth,6 and as a consequence severe forms of ecological degradation (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007).
The ecological reality described is of ecological drawdown (deforestation, over-fishing,

water extraction, etc.) (UNEP, 2012, pp. 72, 68, 84, 102-106, ); increasing toxicity of the environment through chemical
and waste pollution, with severe harm caused to human and non-human communities alike (pp. 173- 179); systematic habitat
destruction (pp. 8, 68-84) and climate change (33-60), which have decimated the number of
species on Earth, threatening many with outright extinction (pp. 139-158). The most serious ecological threat
on a global scale is climate disruption, caused by the emission of greenhouse gases from burning fossil fuels, other industrial
activities, and land destruction (UNEP, 2012, p. 32). The GEO-5 report states that [d]espite attempts to develop low-carbon
economies in a number of countries, atmospheric concentrations of greenhouse gases continue to increase to levels likely to push
global temperatures beyond the internationally agreed limit of 2 C above the pre-industrial average temperature (UNEP, 2012, p.
32). Concentrations of atmospheric methane have more than doubled from preindustrial levels, reaching approximately 1826 ppb in
2012; the scientific consensus is that this increase is very likely due predominantly to agriculture and fossil fuel use (IPCC, 2007).
Scientists warn that the Earths ecosystems are nearing catastrophic tipping points that will
be marked by mass extinctions and unpredictable changes on a scale unseen since the glaciers
retreated twelve thousand years ago (Pappas, 2012). Twenty-two eminent scientists warned recently in the journal, Nature, that
humans are likely to have triggered a planetary-scale critical transition with the potential to transform Earth rapidly and irreversibly
into a state unknown in human experience, which means that the biological resources we take for granted at present may be
subject to rapid and unpredictable transformations within a few human generations (Barnofsky et al., 2012). This means that
human beings are in serious trouble, not only in the future, but right now. The pre-industrial level of carbon dioxide concentration
was about 280 parts per million (ppm). The Intergovernmental Panel on Climate Change (IPCC) estimates concentrations could reach
between 541 and 970 ppm by the year 2100. However, many climate scientists consider that levels should be kept below 350 ppm
warming of the earth would

mean a planet that is too hot for life that is, any life, and all life (Mrasek, 2008). We need to analyze the
in order to avoid irreversible catastrophic effects (Hansen et al., 2008). Catastrophic
above information and ask the simple questions: what does it signify and where will it lead? In terms of the social crises of
although capitalism is capable of raising the

economic productivity of many countries as well as international trade, it also produces social
injustices on a global scale. The trajectory of capitalist economic development that people appear
locked into is of perpetual growth that also produces significant human and social
suffering. In terms of the ecological situation, the mounting evidence from reports, such as those published by UNEP, suggest
that a full-scale ecocide will eventuate and that a global holocaust is in progress which is socially pathological
and biocidal in its scope (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). Assuming the trends do not change, the
endpoint of this trajectory of perpetual economic growth, ecological degradation, systemic pollution, mass species
extinction and runaway climate change, which human beings appear locked into, will be climate apocalypse and
inequalities, the pattern of human development suggests clearly that
complete biotic collapse. Given the serious and life-threatening implications of these social and ecological crises outlined above, it
would be reasonable to expect they should be central to academic concerns, particularly given the responsibilities of academics as
intellectuals. As the people whom society subsidizes to carry out intellectual work,7 the primary task of academics is to carry out
research that might enable people to deepen their understanding of how the world operates, ideally towards the goal of shaping a
Given that
peoples stated philosophical and theological systems are rooted in concepts of justice, equality and the
inherent dignity of all people (Jensen, 2007, p. 30), intellectuals have a particular responsibility to call
attention to those social patterns of inequality which appear to be violations of
such principles, and to call attention to the destructive ecological patterns that threaten individual and collective well-being.
world that is more consistent with moral and political principles, and the collective self-interest (Jensen, 2013, p. 43).
most
As a critic and conscience of society, 8 one task of intellectuals is to identify issues that people should all pay attention to, even
when indeed, especially when people would rather ignore the issues (Jensen, 2013, p. 5). In view
of this, intellectuals today should be focusing attention on the hard-to-face realities of an unjust and unsustainable world. Moreover,
intellectuals in a democratic society, as its critic and conscience, should serve as sources of independent and critical information,
analyses and varied opinions, in an endeavour to provide a meaningful role in the formation of public policy (Jensen, 2013c). In order
to fulfil this obligation as critic and conscience,
intellectuals need to be willing to critique not only
particular people, organizations, and policies, but also the systems from which they emerge . In other
words, intellectuals have to be willing to engage in radical critique. Generally, the term radical tends to suggest images of
extremes, danger, violence, and people eager to tear things down (Jensen, 2007, p. 29). Radical, however, has a more classical
meaning. It comes from the Latin radix, meaning root. Radical critique in this light means critique or analysis that gets to the root
Given that the patterns of social inequality and ecocidal destruction outlined above are not
the product of a vacuum, but instead are the product of social systems, radical critique simply
means forms of social analysis, which are not only concerned about these social and ecological injustices but
also trace them to the social systems from which they emerged, which would subject these very
systems to searching critiques. Such searching critique is challenging because, generally, the dominant
groups which tend to subsidize intellectuals (universities, think tanks, government, corporations) are the
key agents of the social systems that produce inequalities and destroy ecosystems
(Jensen, 2013, p. 12). The more intellectuals choose not only to identify patterns but also
highlight the pathological systems from which they emerge , the greater the tension
with whoever pay[s] the bills (ibid.). However, this may arguably be unavoidable today, given that the
of the problem.
realities of social inequality and ecological catastrophe show clearly that our social systems are already in crisis, are pathological,
and in need of radical change.9 To adopt a radical position, in this light, is not to suggest that we simply need to abolish
capitalism, or to imply that if we did so all our problems would be solved. For one thing, such an abstract argument has little
operational purchase in terms of specifying how to go about struggling for change. For another thing, as this thesis will discuss,
capitalism is not the only social system that we ought to be interrogating as an important systemic driver of social and ecological
adopt a radical position does not mean that we have any viable
answers or solutions in terms of the alternative institutions, organizations and social systems that we
could replace the existing ones with. There is currently no alternative to capitalism that appears to be
crises. Moreover, to
viable, particularly given the historical loss of credibility that Marxism and socialism has suffered. As history has shown, some of the
self-proclaimed socialist and communist regimes have had their own fair share of human rights abuses and environmental disasters,
and the global left has thus far not been able to articulate alternatives that have managed to capture the allegiances of the
given the depth, complexity, and scale of contemporary

social and ecological crises, I am not sure if there are any viable alternatives or, for that
mainstream population. Furthermore,
matter, any guarantees that we can actually prevent and change the disastrous course of contemporary society. I certainly do not
however, is that if we are to have any chance of not

only ameliorating but also substantively addressing these social and
ecological problems, before we can talk about alternatives or potential
solutions, we first need to develop a clear understanding of the problems .
And, as argued above, this involves, amongst other things, exploring why and how the existing social
systems under which we live are producing the patterns of social inequality and
ecological unsustainability that make up our realities today.10 To adopt a radical stance, in this light, is simply to
insist that we have an obligation to honestly confront our social and ecological
predicament and to ask difficult questions about the role that existing social systems might be playing in producing and
have any solutions. What I would argue,
exacerbating them.
2NC---Links
2NC---Generic Link
State action causes political passivity---the discourse of
militarized surveillance reduces democracy to authoritarianism
Giroux 4 (Henry A., PhD, Professor of Education at Boston Univesrity, "War on
Terror, The Militarising of Public Space and the Culture in the United States, Third
Text, Vol. 18, Issue 4, 2004, pp. 211-221, Accessed 7/6/15)//LD
The process of militarisation has a long history in the United States and is varied rather than static, changing under different historical conditions. Catherine Lutz defines it as an intensification of the labor and resources allocated to
Militarization is simultaneously a discursive

process, involving a shift in general societal beliefs and values in ways necessary to
legitimate the use of force, the organization of large standing armies and their
leaders, and the higher taxes or tribute used to pay for them
military purposes, including the shaping of other institutions in synchrony with military goals.
. Militarization is intimately connected not only to the obvious
increase in the size of armies and resurgence of militant nationalisms and militant fundamentalisms but also to the less visible deformation of human potentials into the hierarchies of race, class, gender, and sexuality, and to the
shaping of national histories in ways that glorify and legitimate military action.1 Unlike the old style of militarisation in which civil authority is made subordinate to military authority, the new ethos of militarisation is organised to
engulf the entire social order, legitimising its values as a central rather than peripheral aspect of American public life. Moreover, the values of militarism no longer reside in a single group, nor are they limited to a particular sphere of
. In twenty-first
century America, no one is exempt from militaristic values because the processes of
militarisation allow those values to permeate the fabric of everyday life .2 Following
September 11, American power is being restructured domestically around a growing
culture of fear and a rapidly increasing militarisation of public space and culture
society, as Jorge Mariscal points out: In liberal democracies, in particular, the values of militarism do not reside in a single group but are diffused across a wide variety of cultural locations
. As US
military action is spreading abroad under the guise of an unlimited war against terrorism, public spaces on the domestic front are increasingly being organised around values supporting a highly militarised, patriarchal, and jingoistic
culture that is undermining centuries of democratic gains. 3 The growing influence of the military presence and ideology in American society is visible, in part, in that the United States has more police, prisons, spies, weapons, and
soldiers than at any time in its history. This radical shift in the size, scope, and influence of the military can be seen, on the one hand, in the redistribution in domestic resources and government funding away from social programmes
into military oriented security measures at home and war abroad. The US Government is devoting huge resources to the monopolistic militarisation of space, the development of more usable nuclear weapons, and the strengthening
of its world-girdling ring of military bases and its global navy, as the most tangible way to discourage any strategic challenges to its preeminence.4 According to journalist George Monbiot, the US federal government is now spending
the state is being radically

transformed into a national security state , increasingly put under the sway of the
military corporateindustrialeducational complex.
As the military becomes dominant in American life,
its underlying values, social relations, ideology, and hyper-masculine aesthetic
begin to spread out into other aspects of American culture. Citizens are
urged to spy on their neighbours behaviours, watch for suspicious-looking
people, and supply data to government sources in the war on terrorism
as much on war as it is on education, public health, housing, employment, pensions, food aid and welfare put together. 5 On the other hand,
In addition, the military logic of fear, surveillance, and control is gradually permeating
our public schools, universities, streets, popular culture, and criminal justice system.
recruited as foot soldiers in the war
on terrorism,
. As permanent war becomes a
staple of everyday life, flags increasingly appear on storefront windows, lapels, cars, houses, SUVs, and everywhere else as a show of support for both the expanding interests of empire abroad and the increasing militarisation of the
culture and social order at home. Major universities more intensively court the military establishment for Defence Department grants and, in doing so, become less open to either academic subjects or programmes that encourage
rigorous debate, dialogue, and critical thinking. Public schools not only have more military recruiters, they also have more military personnel teaching in the classrooms. JROTC programmes are increasingly becoming a conventional
part of the school day. As a result of the No Child Left Behind Act, President Bushs educational law, schools risk losing all federal aid if they fail to provide military recruiters full access to their students; the aid is contingent with
Schools were once viewed as democratic public spheres that would

teach students how to resist the militarisation of democratic life, or at least learn
the skills to peacefully engage domestic and international problems they serve as
recruiting stations for students to fight enemies at home and abroad
complying with federal law. 6
. Now
. Military activities abroad cannot be
separated from the increasing militarisation of society at home. War takes on a new meaning in American life as wars are waged on drugs, social policies are criminalised, youth are tried as adults, incarceration rates soar among the
poor, especially people of colour, and
schools are increasingly modelled after prisons
. Schools represent one of the most serious public spheres to
come under the influence of military culture and values. Tough love now translates into zero-tolerance policies that turn public schools into prison-like institutions, as students rights increasingly diminish under the onslaught of a
as educators turn over their responsibility for school safety to the

police, the new security culture in public schools has turned them into learning
prisons
schools are being reformed with the addition of armed
guards, barbed-wired security fences, and lock-down drills.
military-like imposed discipline. Additionally,
, 7 most evident in the ways in which
Recently, in Goose Creek, South Carolina, police conducted an early
morning drug sweep at Stratford High School. When the police arrived they drew guns on students, handcuffed them, and made them kneel facing the wall.8 No drugs were found in the raid. Though this incident was aired on the
national news, there was barely any protest from the public. The rampant combination of fear and insecurity that is so much a part of a permanent war culture in the United States seems to bear down particularly hard on children. In
many poor districts, specialists are being laid off and crucial mental health services are being cut back. As Sara Rimer recently pointed out in the New York Times, much needed student-based services and traditional, if not
compassionate, ways of dealing with student problems are now being replaced by the juvenile justice system, which functions as a dumping ground for poor minority kids with mental health and special-education problems. . . . The
juvenile detention center has become an extension of the principals office. 9 For example, in some cities, ordinances have been passed that allow for the filing of misdemeanour charges against students for anything from
disrupting a class to assaulting a teacher. 10 Children are no longer given a second chance for minor behaviour infractions, nor are they simply sent to the guidance counsellor, principal, or to detention. They now come under the
militarisation of public high schools has become so

commonplace that, even in the face of the most flagrant disregard for childrens
rights, such acts are justified by both administrators and the public on the grounds
that they keep kids safe
surveillance cameras have been installed
what they are teaching kids who are put
jurisdiction of the courts and juvenile justice system. The
. In Biloxi, Mississippi
classrooms. The schools administrators call this school reform but none of them has asked the question about
in all of its five hundred
under constant surveillance. The not-so-hidden curriculum here is that kids cannot
be trusted and that their rights are not worth protecting
they are being
educated to passively accept military sanctioned practices organised around
maintaining control, surveillance, and unquestioned authority, all conditions central
to a police state
. At the same time,
. It gets worse. Some schools are actually using sting operations in which undercover agents who pretend to be students are used to catch young people suspected of selling drugs or
committing any one of a number of school infractions. The consequences of such actions are far reaching, as Randall Beger notes: Opponents of school-based sting operations say they not only create a climate of mistrust between
students and police, but they also put innocent students at risk of wrongful arrest due to faulty tips and overzealous police work. When asked about his role in a recent undercover probe at a high school near Atlanta, a young-looking
Instances of
militarisation and the war at home can also be seen in the rise of the prison
industrialeducational complex and the militarisation of the criminal justice system
The police now work in close collaboration with the
military
This growth of the military model in American life has
played a crucial role in the paramilitarising of the culture, which provides both a
narrative and legitimisation for recent trends in corrections, including the
normalisation of special response teams, the increasingly popular Supermax
prisons, and drug war boot camp
paramilitary culture increasingly embodies a racist and classspecific discourse and reflects the discrediting of the social and its related
narratives
police officer who attended classes and went to parties with students replied: I knew I had to fit in, make kids trust me and then turn around and take them to jail.11
The traditional distinctions between military, police, and criminal justice are blurring. 12
. This takes the form of receiving surplus weapons, technology/information transfers, the introduction of SWAT teams modelled after the Navy Seals which are experiencing a steep growth in police departments
throughout the US and a growing reliance on military models of crime control.13
s. 14 In the paramilitaristic perspective, crime is no longer seen as a social problem, but now as both an individual pathology and a matter of
punishment rather than rehabilitation. Unsurprisingly,
. 15 This is particularly evident as Americas inner cities are being singled out as dangerous enclaves of crime and violence. The consequences for those communities have been catastrophic, as can be
seen in the cataclysmic rise of the prisonindustrial complex. As is widely reported, the United States is now the biggest jailer in the world. Between 1985 and 2002 the prison population grew from 744,206 to 2.1 million (approaching
the combined populations of Idaho, Wyoming, and Montana), and prison budgets jumped from US$7 billion in 1980 to US$40 billion in 2000.16 As Sanho Tree points out: With more than 2 million people behind bars (there are only 8
million prisoners in the entire world), the United States with one-twenty-second of the worlds population has one-quarter of the planets prisoners. We operate the largest penal system in the world, and approximately one quarter
of all our prisoners (nearly half a million people) are there for nonviolent drug offenses.17 Yet, even as the crime rate plummets dramatically, more people, especially people of colour, are being arrested, harassed, punished, and put
in jail.18 Of the two million people behind bars, 70% of the inmates are people of colour: 50% are African-American and 17% are Latino.19 A Justice Department Report declares that on any given day in the United States more than a
third of the young African-American men aged eighteen to thirty-four in some of our major cities are either in prison or under some form of criminal justice supervision. 20 The same department reported in April of 2000 that black
youth are forty-eight times more likely than whites to be sentenced to juvenile prison for drug offenses. 21 When poor youth of colour are not being warehoused in dilapidated schools or incarcerated, they are being aggressively
recruited by the Army to fight the war abroad. For example, Carl Chery recently reported: With help from The Source magazine, the U.S. military is targeting hiphop fans with custom made Hummers, throwback jerseys and trucker
hats. The yellow Hummer, spray-painted with two black men in military uniform, is the vehicle of choice for the U.S. Armys Take It to the Streets campaign a sponsored mission aimed at recruiting young African Americans into the
military ranks.22 It seems that the Army has discovered hip-hop and urban culture but, rather than listening to the searing indictments of poverty, joblessness, and despair that is one of that cultures central messages, the Army
recruiters appeal to its most commodified elements by letting the potential recruits hang out in the Hummer, where they can pep the sound system or watch recruitment videos. 23 Of course, they wont view any videos of
Hummers being blown up in the war-torn streets of Baghdad. Under the auspices of the national security state and the militarisation of domestic life, containment policies become the principle means to discipline working-class youth
and restrict their ability to think critically and engage in oppositional practices. Marginalised students learn quickly that they are surplus populations and that the journey from home to school no longer means they will next move into
a job; on the contrary, school now becomes a training ground for their graduation into the containment centres of prisons that keep them out of sight, patrolled and monitored so as to prevent them from becoming a social canker or
political liability to those white and middle-class populations concerned about their own safety. Schools increasingly function as zoning mechanisms to separate students marginalised by class and colour and as such these institutions
are now modelled after prisons. This follows the argument of David Garland, who points out that: Large-scale incarceration functions as a mode of economic and social placement, a zoning mechanism that segregates those
populations rejected by the depleted institutions of family, work, and welfare and places them behind the scenes of social life.24 And judging from President Bushs 2004 State of the Union Address, his administration will continue to
allocate funds for educational reform intended to both strip young people of the capacity to think critically by teaching them that learning is largely about test-taking and prepare them for a culture in which punishment has become
the central principle of reform. Bush cannot fully fund his own educational reform act but he pledged in his Address an additional US$23 million to promote drug testing of students in public schools. Once again, fear, punishment, and
containment override the need to provide health care for 9.3 million uninsured children, increase the ranks of new teachers by at least 100,000, fully support Head Start programmes, repair deteriorating schools, and improve those
Militarisation is widespread in the

realm of culture and functions as a mode of public pedagogy, instilling the values
and the aesthetic of militarisation through a wide variety of pedagogical sites and
cultural venues
youth services that will break for many poor students the direct pipeline from school to either the local police station, the courts, or prison.
. For instance, Humvee ads offer up the fantasy of military glamour and modes of masculinity, marketed to suggest that ownership of these military-designed vehicles first used in Operation
Desert Storm guarantees virility for its owners and promotes a mixture of fear and admiration from everyone else. One of the fastest growing sports for middle-class suburban youth is the game of paintball in which teenagers stalk
and shoot each other on battlefields (in San Diego, paintball participants pay an additional fifty dollars to hone their skills at the Camp Pendleton Marine Base). 25 Military recruitment ads flood all modes of entertainment, using
sophisticated marketing tools that offered messages with a strong appeal to the hyper-masculinity of young men. Such ads resonate powerfully and serve directly as an enticement for recruitment. For example, the website
www.marines.com opens with the sound of gunfire and then provides the following message: We are the warriors, one and all. Born to defend, built to conquer. The steel we wear is the steel within ourselves, forged by the hot fires of
From video games to Hollywood films and childrens

toys, popular culture is increasingly bombarded with militarised values, symbols,
and images
discipline and training. We are fierce in a way no other can be. We are the marines.
. Video games such as Doom have a long history of using violent graphics and shooting techniques that appeal to the most hyper-modes of masculinity. The Marine Corps was so taken with Doom in
the mid 1990s that it produced its own version of the game, Marine Doom, and made it available to download free. One of the developers of the game, Lieutenant Scott Barnett, claimed at the time that it was a useful game to keep
marines entertained. The interface of military and popular culture is not only valuable in providing video game technology for diverse military uses, it has also resulted in the armed forces developing partnerships with the video
game industry to train and recruit soldiers. 26 The military uses the games to train recruits and the video game makers offer products that have the imprimatur of a first-class fighting machine. And the popularity of militarised war
games is on the rise. Nick Turse argues that as the line between entertainment and war disappears a: . . . military-entertainment complex [has] sprung up to feed both the militarys desire to bring out ever-more-realistic computer
and video combat games. Through video games, the military and its partners in academia and the entertainment industry are creating an arm of media culture geared toward preparing young Americans for armed conflict.27 Combat
teaching games offer a perfect fit between the Pentagon, with its accelerating military budget, and the entertainment industry, with annual revenues of US$479 billion, which includes US$40 billion from the video game industry. The
entertainment industry offers a stamp of approval for the Pentagons war games and the Defence Department provides an aura of authenticity for corporate Americas war-based products. While collaboration between the Defense
Department and the entertainment industry has been going on since 1997, the permanent war culture that now grips the United States has given this partnership a new life and greatly expanded its presence in popular culture.
The military has found numerous ways to take advantage of the intersection
between popular culture and the new electronic technologies
. Such technologies are not only being used to train military
personnel, they are also being put to use as a recruiting tool, tapping into the realm of popular culture with its celebration of video games, computer technology, the Internet, and other elements of visual culture used by
teenagers.28 For instance, the army has developed online software that appeals to computer-literate recruits, and the most attractive feature of the software is a shooting game that actually simulates battle and strategic-warfare
situations. 29 When asked about the violence the games portray, Brian Ball, the lead developer of the game, was crystal clear about the purpose of the video. We dont downplay the fact that the Army manages violence. We hope
that this will help people understand the role of the military in American life. 30 Capitalising on its link with industry, a host of new war games are in production. There is Americas Army, one of the most popular and successful
recruiting video games. This game teaches young people how to kill enemy soldiers while wearing your pyjamas [and also provides] plenty of suggestions about visiting your local recruiter and joining the real US Army. 31 Using the
most updated versions of satellite technology, military-industry collaboration has produced Kuma: War. This game was developed by the Department of Defence and Kuma Reality Games, and slated for release in 2004. It is a
subscription-based product that prepares gamers for actual missions based on real-world conflicts, and is updated weekly.32 The game allows players to recreate actual news stories such as the raid American forces conducted in
Mosul, Iraq in which Saddam Husseins two sons, Uday and Qusay, were killed. Gamers can take advantage of real true to life satellite imagery and authentic military intelligence, to jump from the headlines right into the frontlines of
international conflict. 33 Of course, the realities of carrying eighty-pound knapsacks in one hundred and twenty degree heat, the panic-inducing anxiety and fear of real people shooting real bullets or planting real bombs to kill or
maim you and your fellow soldiers, and the months, if not years away from family are not among those experiences reproduced for instruction or entertainment. Young people no longer learn military values in trainingcamp or in
military-oriented schools. These values are now disseminated through the pedagogical force of popular culture itself, which has become a major tool used by the armed forces to educate young people about the ideology and social
relations that inform military life minus a few of the unpleasantries. The collaboration between the military-entertainment complex offers up a form of public pedagogy that: . . . may help to produce great battlefield decision
makers, but . . . strike from debate the most crucial decisions young people can make in regard to the morality of a war choosing whether or not to fight and for what cause.34 In light of the militaristic transformation of the country,
attitudes toward war play have changed dramatically and can be observed in the
major increase in the sales, marketing, and consumption of military toys, games,
videos, and clothing. Corporations recognise that there are big profits to be made at
a time when military symbolism gets a boost from the war in Iraq and the upsurge
in patriotic jingoism.
The popularity of militarised culture is apparent not only in the sales of video combat games but also in the sales of childrens toys. Major retailers and major chain stores
across the country are selling out of war-related toys. KB Toys stores in San Antonio, Texas, sold out in one day an entire shipment of a fatigue-clad plush hamsters that dance to military music, and managers at KB Toys stores were
instructed to feature military toys in the front of their stores. 35 Moreover, sales of action figures have soared. For example, between 2001 and 2002, sales of GI Joe increased by forty-six percent, Hasbro reported. And when toy
retailer Small Blue Planet launched a series of figures called Special Forces: Showdown with Iraq, two of the four models sold out immediately.36 KB Toys took advantage of the infatuation with action toys related to the war in Iraq
by marketing a doll that is a pint-sized model of George W Bush dressed in the US pilot regalia he wore when he landed on the USS Abraham Lincoln on May 1, 2003. Japanese electronic giant SONY attempted to cash in on the war in
Iraq by patenting the term Shock and Awe for use with video and computer games. The phrase was used by Pentagon strategists as part of a scare tactic to be used against Iraq. It referred to the massive air bombardment planned
for Baghdad in the initial stages of the war. The New York Times reported that after September 11, 2001, nearly two-dozen applications were filed for the phrase, Lets Roll . The term was made famous by one of the passengers on
the ill-fated abducted plane that crashed in a field in Pennsylvania. Even in the world of fashion, the ever-spreading chic of militarisation and patriotism is making its mark. ArmyNavy stores are doing a brisk business not only selling
American flags, gas masks, aviator sun glasses, night-vision goggles, and other military equipment but also clothing with the camouflage look.37 Even chic designers are getting into the act. For instance, at a recent fashion show in
Milan, Italy, many designers were drawn to GI uniforms [and were] fascinated by the construction of military uniforms. One designer had beefy models in commando gear scramble over tabletops and explode balloons. 38
Militarism in both its old and new forms views life as a form of permanent warfare,
and
subordinates society to the military
It
diminishes both the legitimate reasons for a military presence in society and the
necessary struggle for the promise of democracy itself
militarism is
at odds with any
viable notion of democracy
it uses fear to drive human behaviour, and the
values it promotes are mainly distrust, patriarchy, and intolerance
Democracy
appears as an excess in this logic and is often condemned as being a weak system
of government
in doing so
rather than subordinating the military to the needs of a democratic social order.
. As Umberto Eco points out, under the rubric of its aggressive militarism, there is
no struggle for life but, rather, life is lived for struggle. 39 The ideology of
central to any understanding of its appeals to a form of irrationality that is
. For instance,
. Within this ideology, masculinity is associated
with violence, and action is often substituted for the democratic processes of deliberation and debate. Militarism as an ideology is about the rule of force and the expansion of repressive state power.
. Echoes of this anti-democratic sentiment can be found in the passage of the PATRIOT Act with its violation of civil liberties, in the rancorous patriotism that equates dissent with treason, and
in the discourse of public commentators who in the fervour of a militarised culture fan the flames of hatred and intolerance. One example that has become all too typical emerged after the September 11 attacks. Columnist Ann
Coulter, in calling for a holy war on Muslims, wrote: We should invade their countries, kill their leaders and convert them to Christianity. We werent punctilious about locating and punishing only Hitler and his top officers. We carpetbombed German cities; we killed civilians. Thats war. And this is war.40 While this statement does not reflect the mainstream of American opinion, the uncritical and chauvinistic patriotism and intolerance that informs it has not only
As militarisation spreads
through the culture, it produces policies that rely more on force than on dialogue
and compassion; it offers up modes of identification that undermine democratic
values and tarnish civil liberties
we
are quickly becoming a nation that substitutes military solutions for almost
everything, including international alliances, diplomacy, effective intelligence
agencies, democratic institutions even national security
militarisation deforms our language, debases democratic values, celebrates fascist
modes of control, defines citizens as soldiers, and diminishes our ability as a nation
to uphold international law and support a democratic global public sphere
militarisation will undermine the meaning of critical
citizenship and do great harm to those institutions that are central to a democratic
society. demise of democracy fuelled by the spread of militarisation is also
revealed in a policy of anti-terrorism
Not only does
this policy of all-embracing anti-terrorism exhaust itself in a discourse of moral
absolutes, militarism, revenge, and public acts of denunciation, it also strips
community of democratic values
Politics becomes empty as it reduces citizens to obedient recipients of power,
content to follow orders, while shaming those who make power accountable
dissent is stifled in the face of a growing racism that condems Arabs
and people of colour as less than civilized
refusal of the American government
to address with any degree of selfcriticism or humanity the torture and violation of
human rights exercised by American soldiers at Abu Ghraib prison in Iraq offers a
case in point
become standard fare among many conservative radio hosts in the United States but increasingly is produced and legitimised in a wide number of cultural venues.
; and it makes the production of both symbolic and material violence a central feature of everyday life. As Kevin Baker remarks,
. 41 By blurring the lines between military and civilian functions,
. Unless it is systemically
exposed and resisted at every place where it appears in the culture,
The
practiced by the Bush administration that mimics the very terrorism it wishes to eliminate.
by configuring politics in religious terms and defining every citizen and inhabitant of the United States as a potential terrorist.
. Under the
dictates of a pseudo-patriotism,
. The recent
. In light of the relevation of the most grotesque brutality, racisim, and inhumanity exhibited by American soldiers against Arab prisoners captured on camera and video, powerful right-wing
politicians and pundits such as Rush Limbaugh and Cal Thomas defend such actions as either a way for young men to blow some steam off, engage in a form of harmless frat hazing, or give Muslim prisoners what they deserve. It
gets worse. Commentators such as Newt Gingrich and Republican Senator James Inhofe have gone so far as to suggest that calling attention to such crimes not only undermines troop morale in Iraq, but is also unpatriotic. Defending
torture and gross sexual humiliations by US troops in Saddams old jails is not merely insensitive political posturing, it is, more tellingly, indicative of how far the leadership of this country has strayed from any real semblance of
As militarisation spreads its influence both at home and abroad, a culture of

fear is mobilised in order to put into place a massive police state intent on
controlling and manipulating public speech while making each individual a terrorist
suspect subject to surveillance
the increasing danger of
militarisation is also evident in the attempt by the corporate/military/ media
complex to create those ideological and pedagogical conditions in which people
democracy.
, fingerprinting, and other forms of electronic tattooing. But
either become convinced that the power of the commanding institutions of the state
should no longer held accountable or believe that they are powerless to challenge
the new reign of state terrorism
militarisation
works to
eliminate those public spaces necessary for imagining an inclusive democratic
global society Militarisation and the culture of fear that legitimises it have redefined
the very nature of the political, and in so doing have devalued speech and agency
as central categories of democratic public life
. And as
spreads its values and power throughout American society and the globe, it
. And it is precisely as a particular ideology and cultural politics that militarisation has to be opposed.
Their calculative approach guts solvency and turns case

ultimately sacrifices minority rights to privileged legal
interests
Williams and Arrigo 2k (Christopher R., associate professor of criminology at
the University of West Georgia, and Bruce A., professor of crime, law, and society
and the former chair of the department of criminal justice at the University of North
Carolina at Charlotte. The Philosophy of the Gift and the Psychology of Advocacy:
Critical Reflections on Forensic Mental Health Intervention (2000), International
Journal for the Semiotics of Law vol. 13, Kluwer Academic Publishers, pp. 215242)
Ralph Waldo Emersons 1844 essay entitled Gifts, is, perhaps, the first full-blown exposition regarding the problem
his treatment delineates the paradoxical nature of the

gift by suggesting the incursion of debt that is inherent in the practice of giftgiving.
A failure to repay or reciprocate, implies Emerson, creates a tension between the one
who gives and the one who receives , leaving the former disposed to feelings of inferiority and
of the gift.18 Though limited in scope,
vengeance, while the latter endures a threat to oness own independence. As Emerson notes, . . . It is not the
office of a man to receive gifts. How dare you give them? We wish to be self-sustained. We do not quite forgive a
giver. The hand that feeds us is in some danger of being bitten ...19 Where Hobbess position on human nature
suspects the motives of the assigner, Emerson questions the psychology of the recipient, as well as the recognition
by both parties that the bestowal of an award embodies a certain display or degree of power. For Emerson, then,
there is a twofold danger inherent in the economy of gift-giving. In short, both giver
and receiver are vulnerable to the effects of perversion and degradation. 20 The
corruption of the gift and the debasement of giving occur when what is offered is principally defined as something
the usurpation of a true gift and a pure act of consigning is

enacted once calculated as an award conceived and constructed for its value as a
gift. In this sense, the gift need not be a material object or something possessing a physical nature. Rather,
every act of helping, assisting, or intervening entails some form of a token or a
gratuity. If the act of advocacy is generated in a less than genuine manner; that
is, if it is not the giving of a portion of thyself 21 but, rather, is a deliberate act
constructed for the sole purpose of being given as some form of gift, then it is
equally subject to the kind of perversions and degradations implied in Emersons essay.
to be given. In other words,
Emersons observations raise a number of questions about those gifts that are calculated, intentional efforts to
One example are the various constitutional

rights afforded persons with mental illness, and how such liberty
protections form the basis of many advocacy efforts. 22 While these constitutional
safeguards are ostensibly provided to individuals with psychiatric disorders out of
genuine interest in human welfare (i.e. as a manifestation of the compassionate
disposition of the law, legal processes, and legal institutions), these apparent rights
often conceal the more sinister motivating factors underlying juridical
provide something of value to someone else.
decision making. Indeed, it may be argued that the very purpose of availing such
rights is to give the appearance of a compassionate and humane approach to
individual justice when, in fact, these are merely self-interested attempts to quiet
the voices of protest.23 In this context, the gift of rights appears as a deliberate effort
to provide users of mental health services with the humanity that the law wants for
them or that serves the interests of the legal sphere or other privileged and
invested collectives. Is the law likely to give something when doing so threatens
juridical or system-sustaining interests? We submit that this Machiavellian display of
compassion fails to reflect the authentic, unadulterated desire of the recipient. Instead, it reflects a
calculated and, thus, degraded enterprise of self-interested giving. Thus, when we
advocate for the rights of persons with mental illness, we might do well to ask ourselves: whose desires do we truly
re-present?24
The aff doesnt solve anything---so-called reform just masks

the perpetual state of exception
Douglas 9 (Jeremy, peer-reviewed independent researcher, "Disappearing
Citizenship: surveillance and the state of exception", Surveillance & Society 6.1
(2009), pp. 32-42, Accessed 7/6/15)//LD
Looking back at the Judean Roman camp example, the detention of the Jews could be seen as enacted during an iustitium when Jewish rebelliousness was
the state of exception, is a

void in which the suspension of the law creates a zone that evades all legal
definition. Thus, the state of exception is neither within nor outside of jurisprudence it
is situated in an absolute non-place with respect to the law (ibid, 50-51). This non-place, however,
endangering the newly acquired Roman providence of Judea. The iustitium, as with other examples of
also has literal geographic implications the place of the camp is no longer necessary for creating bare life. Rather, the mutually operative surveillance
and state of exception allow for a city-camp, which maintains control and suspicion over a population without necessitating borders. But, we must
distinguish and this is relevant for the Roman camp example between the functionality and mechanization of camps (see abstract). For example, the
Roman camp, prison, border camp, work camp, etc. all have a different functionality from the suppression of a rebellion to idle detention but the
mechanizations they employ to carry out this functionality are the same - to monitor and maintain control over a given population by creating bare life
(the reason the population is in a camp in the first place is surprisingly irrelevant). Although the functionality of camps may differ, I want to emphasize
the mechanizations of power will always employ a structure of

surveillance; this is the link between ancient and modern camps. Moving away from ancient examples of the state of exception and looking at
the current American judicial-political situation, Agambens central argument in Homo Sacer and State of Exception is that modern politics
are defined by the permanence of a state of exception in which the exception
becomes the rule, or the norm. An example of this exception-as-the-rule can be seen in an American 2006 CRS Report for
Congress on national emergency powers: those authorities available to the executive in time of
national crisis or exigency have, since the time of the Lincoln Administration, come
to be increasingly rooted in statutory law (Relyea 2006, 2, authors italics). It continues: Under the powers delegated by
such statutes [constitutional law, statutory law, and congressional delegations], the President may seize property ,
organize and control the means of production, seize commodities, assign military
forces abroad, institute martial law, seize and control all transportation and
communication, regulate the operation of private enterprise, restrict travel, and, in
a variety of ways, control the lives of United States citizens . (ibid, 4, authors italics). This report alludes
to biopolitical powers for one, but also the ways in which the state of emergency is implemented through a
variety of statutes, and not instituted as one bill or act that can be in or out of
force en bloc. Rather, it is becoming more difficult to identify juridical documents that
provide state of exception powers that are clearly distinguishable from normal law.
The Patriot Act, to be sure, is clearly identifiable from normal US law, but The Domestic Security Enhancement Act
2003 was not passed under that name (nor under the alias Patriot Act II), but was tacked on to
that
other Senate Bills piecemeal. For example, some enhanced surveillance measures were not
passed under the Patriot Act, but were passed into US Code - under title 50, chapter 36, subchapter I,
1802 of the US Code: Notwithstanding any other law, the President, through the Attorney General, m ay
authorize electronic surveillance without a court order under this subchapter to
acquire foreign intelligence information for periods of up to one year . So, snooping
surveillance tactics will still be part of normal law even if the Patriot Act
is not renewed; this is what Agamben means when he writes of the permanent
state of emergency (Agamben 2005, 2).
Legal reform is a palliative measure that sutures superficial

instances of white supremacy while amplifying their underlying
causes
Spade 13 (Dean, Associate Professor of Law at Seattle University School of Law.
Intersectional Resistance and Law Reform (Summer 2013), Signs vol. 38 no. 4,
University of Chicago Press)
Critical race theory brought to legal scholarship a critique of formal legal equality
and the discrimination principle, recognizing the failures of civil rights
legislation to alleviate the systemic racialized maldistribution of wealth and
life chances. The concept of formal legal equality articulates an important disjuncture between the racial
neutrality declared by law and the material realities of white supremacy. This disjuncture stems, at least in part,
The
discrimination principle understands racist harm in such a limited way as to make it
exceptionally difficult to prove that a violation of discrimination law has occurred
and to make the conditions produced by racism unreachable through discrimination
doctrine. Racism is understood through the paradigm of individual discriminators
who take race into account when making decisions about activities like hiring, firing, leasing, selling, or
serving Freeman 1996. In the absence of explicit, intentional exclusion, courts rarely
find a violation of discrimination law. Proving that harm was intentional and based on race can
from the inadequacy of the discrimination principle for conceptualizing the conditions of white supremacy.
be exceptionally difficult, especially when multiple vectors of subjection exist for the affected person or people
Moreover, the discrimination principle regards intentional exclusions

or preferences based on race as equally harmful whether they harm or benefit
people of color. Color blindness is the rationale for this approach. It dehistoricizes
racial exclusion and suggests that any individuals experience of exclusion or
preference based on race is equally harmful. It assumes a level playing field in
which race consciousness, not white supremacy, is the problem the law must
seek to eliminate.1 These features of the discrimination principle have produced troubling results.
Crenshaw 2008.
Programs aimed at remedying racial disparity have been declared illegally discriminatory; meanwhile,
antidiscrimination laws have proven to be largely ineffective in addressing even the

narrowest version of individual race discrimination. Most people of color who have been denied a
job or an apartment cannot produce the required evidence of intent, not to mention that the people for whom such
losses will produce the worst consequences likely cannot afford an attorney Legal Services Corporation 2009.
These peoplepoor people, people with disabilities, women, queer and trans
people, immigrantsare also unlikely to have the kind of single-axis discrimination
case that courts and lawyers most easily understand. They are more likely to be
facing multiple vectors of exclusion and to be interacting in less formal conditions,
such as low-wage contingent labor, which further decreases the chances that there
will be a paper trail proving that their experience was the result of discrimination
Ruckelshaus and Goldstein 2002. The most severe conditions produced by white supremacy
cannot be addressed or even imagined by antidiscrimination law. Those conditions that
do not result from the misdeeds of a perpetrating individual or organizationthe broad conditions of maldistribution
visible in the United Statess racial wealth divide; extreme racial disparity in access to housing, employment,
education, food, and health care; the ongoing occupation and expropriation of native lands; and targeting in
criminal punishment, environmental harm, and immigration enforcementare cast as neutral by the discrimination
When racist harm is framed as a

problem of aberrant individuals who discriminate and when intention must be
proved to find a violation of law, the central conditions of white supremacy are
implicitly declared neutral. In the United States, this has been accompanied by a robust discourse that
principle Gilmore 199899; United for a Fair Economy 2006.
blames people of color for poverty and criminalization, a logical leap required when color blindness has been
declared the law of the land and racism has been defined so narrowly as to exclude it from blame in the most
widespread adverse conditions facing people of color. Critical race theorists have supplied the concept of
preservation-through-transformation to describe the neat trick that civil rights law performed in this dynamic
In the face of significant resistance to conditions of

subjection, law reform tends to provide just enough transformation to stabilize and
preserve status quo conditions. In the case of widespread rebellion against
white supremacy in the United States, civil rights law and color-blind
constitutionalism have operated as formal reforms that mask the perpetuation of
the white supremacist status quo. Explicit exclusionary policies and practices
became officially forbidden, yet the racialized-gendered maldistribution of life
chances in the United States remained the same or worsened with the increasing
concentration of wealth and the simultaneous dismantling of social welfare systems
Siegel 1997, 1119; Harris 2006.
Harris 2006, 155461; United for a Fair Economy 2006).
Legislative solutions just mask social issues and enable victimblaming

Delgado 91 (Richard, Charles Inglis Thomson Professor of Law, University of
Colorado. J.D. 1974, University of California, Berkeley (Boalt Hall), "Norms and
Normal Science: Toward a Critique of Normativity in Legal Thought, University of
Pennsylvania Law Review (1991), pp. 933-962, Accessed 7/7/15)//LD
the mere pronouncement of something as
normatively good or bad changes our perception of it . The decision in Brown v. Board of
Education42 changed the way we thought about minorities . Reagan and Reaganomics changed
things back again.43 During war, we demonize our enemies, and thereafter actually see
them as grotesque, evil and crafty monsters deserving of their fate on the battlefield.44 Later, during
peacetime, they may become our staunch allies once again. Derrick Bell and other Critical Race theorists
have been pointing out the way in which standard, liberal-coined civil rights law injures the
chances of people of color and solidifies racism.45 According to these writers, one function of
our broad system of race-remedies law is to free society of guilt. Although the remedies
are ineffective, they enable members of the majority group to point to the array of
civil rights statutes and case law which ostensibly assure fair and equal treatment in
schools, housing, jobs, and many other areas of life. With all these elaborate antidiscrimination laws on
the books, if black people are still poor and unhappy -well, what can be done? The
law's condemnation of racism thus enables us to blame the victim, praise ourselves for our
liberality, and thereby deepen the dilemma of people of color .46 Repeated assertion has also proved
Ordinary life is full of similar examples in which
able to change our notions of the proper role of the judiciary. In previous times, courts, such as the Warren Court, undertook to
remedy poverty and injustice. This came to be seen as a proper role for judges and lawyers. Recently, conservatives have been
asserting the "quieter" virtues of judicial restraint and strict construction. 47 They have prevailed not so much because the
argument for judicial quietism is so compelling, but because they have stated it so often, with so much authority and with the power
to make it so. Today, most of us see the rare case of an activist judge as quaint, or aberrational, and nod (approvingly?) when we
see judicial abstention. Professional societies engage in behavior of this performative sort in an effort to get the public to accept the
profession's view of what responsible behavior is, or to see another profession (e.g., lawyers) as responsible for the problems
associated with the first profession (e.g., medical malpractice). More instances of this sort are discussed in the next section.
Reform is a shell game the plan just shuffles the specifics of

how power will become centralized and securitized
Rana 12 (Aziz, Prof of Law @ Cornell, Who Decides on Security?, CONNECTICUT
LAW REVIEW 44(5): 1417-1490.
http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?
article=2473&context=facpub)
politicians and legal scholars routinely invoke fears that the balance between
liberty and security has swung drastically in the direction of government's coercive
powers. In the post-September 11 era, such worries are so commonplace that, in the words of one commentator,
Today,
"it has become a part of the drinking water in this country that there has been a tradeoff of liberty for security . . . ."
According to civil libertarians, centralizing executive power and removing the legal constraints
that inhibit state violence (all in the name of heightened security) mean the steady erosion of both
popular deliberation and the rule of law.2 For Jeremy Waldron, current practices, from
coercive interrogation to terrorism surveillance and diminished detainee rights, provide
government the ability not only to intimidate external enemies, but also internal
dissidents and legitimate political opponents. He writes, "[w]e have to worry that the very means given to the
government to combat our enemies will be used by the government against its enemies .... ,4 Especially
disconcerting for many commentators, executive judgments--due to fears of infiltration and security leaks-are often
cloaked in secrecy. This lack of transparency undermines a core value of democratic decision-making: popular
scrutiny of government action. As Sixth Circuit Judge Damon Keith famously declared in a case involving secret
deportations by the executive branch, "[d]emocracies die behind closed doors. . . . When government begins
closing doors, it selectively controls information rightfully belonging to the people. Selective information is
misinformation."' 6 In the view of no less an establishment figure than Neal Katyal, who until June 2011 was the
Acting Solicitor General, such security measures transform the current presidency into the "most dangerous
Widespread concerns
with the government's security infrastructure are by no means a new phenomenon.
branch[,]" one that "subsumes much of the tripartite structure of government., 7
In fact, such voices are part of a sixtyyear history of reform aimed at limiting state (particularly presidential)
What is remarkable about these reform efforts is that

in every generation critics articulate the same basic anxieties and present virtually
identical procedural solutions. These procedural solutions focus on enhancing
the institutional strength of both Congress and the courts to rein in the unitary
executive. They either promote new statutory schemes that codify legislative responsibilities or call for greater
discretion and preventing likely abuses. 8
court activism. As early as the 1940s, Clinton Rossiter argued that only a clearly established legal framework in
which Congress enjoyed the power to declare and terminate states of emergency would prevent executive tyranny
After the Iran-Contra scandal, Harold Koh, now State

raised this approach, calling for passage of a National
Security Charter that explicitly enumerated the powers of both the executive and
the legislature, promoting greater balance between the branches and explicit
constraints on government action.10 More recently, Bruce Ackerman has defended the need for an
and rights violations in times of crisis.9
Department Legal Adviser, once more
"emergency constitution" premised on congressional oversight and procedurally specified practices." As for
increased judicial vigilance, Arthur Schlesinger argued nearly forty years ago, in his seminal book, The Imperial
Presidency, that the courts "had to reclaim their own dignity and meet their own responsibilities" by abandoning
deference and by offering a meaningful check to the political branches.1 2 Today, Laurence Tribe and Patrick
Gudridge once more imagine that, by providing a powerful voice of dissent, the courts can play a critical role in
balancing the branches. They write that adjudication can "generate[]-even if largely (or, at times, only) in eloquent
The hope-returned to by constitutional

been that by creating clear legal guidelines for security
matters and by increasing the role of the legislative and judicial branches,
government abuse can be stemmed. Yet despite this reformist belief, presidential
and military prerogatives continue to expand even when the courts or
Congress intervene. Indeed, the ultimate result primarily has been to entrench
further the system of discretion and centralization. In the case of congressional legislation
and cogently reasoned dissent-an apt language for potent criticism.'1 3
scholars for decades-has
(from the 200 standby statutes on the books 14 to the post-September 11 and Iraq War Authorizations for the Use
of Military Force, to the Detainee Treatment Act and the Military Commissions Acts'5), this has often entailed
Congress self-consciously playing the role of junior partner-buttressing executive practices by providing its own
rather than rolling back security practices, greater

congressional involvement has tended to further strengthen and internalize
emergency norms within the ordinary operation of politics. 16 As just one example,
constitutional imprimatur to them. Thus,
the USA PATRIOT Act, while no doubt controversial, has been renewed by Congress a remarkable ten consecutive
times without any meaningful curtailments. 7 Such realities underscore the dominant drift of security
arrangements, a drift unhindered by scholarly suggestions and reform initiatives. Indeed, if anything, today's
scholarship finds itself mired in an argumentative loop, re-presenting inadequate

remedies and seemingly incapable of recognizing past failures . What explains both the
persistent expansion of the federal government's security framework as well as the inability of civil libertarian
the current reform debate ignores the

broader ideological context that shapes how the balance between liberty and
security is struck. In particular, the very meaning of security has not remained static, but rather has changed
solutions to curb this expansion? This Article argues that
dramatically since World War II and the beginning of the Cold War. This shift has principally concerned the basic
question of who decides on issues of war and emergency. And as the following pages explore, at the center of this
shift has been a transformation in legal and political judgments about the capacity of citizens to make informed and
knowledgeable decisions in security domains. Yet, while underlying assumptions about popular knowledge-its
strengths and limitations-have played a key role in shaping security practices in each era of American constitutional
history, this role has not been explored in any sustained way in the scholarly literature. As an initial effort to
delineate the relationship between knowledge and security, this Article will argue that throughout most of the
the dominant ideological perspective saw security as grounded in

protecting citizens from threats to their property and physical well-being (especially
American experience,
those threats posed by external warfare and domestic insurrection). Drawing from a philosophical tradition
extending back to John Locke, many politicians and thinkers-ranging from Alexander Hamilton and James Madison,
at the founding, to Abraham Lincoln and Roger Taney-maintained that most citizens understood the forms of danger
that imperiled their physical safety. 18 The average individual knew that securing collective life was in his or her
own interest, and also knew the institutional arrangements and practices that would fulfill this paramount interest.
19 A widespread knowledge of security needs was presumed to be embedded in social experience, indicating that
citizens had the skill to take part in democratic discussion regarding how best to protect property or to respond to
forms of external violence. Thus the question of who decides was answered decisively in favor of the general public
and those institutions-especially majoritarian legislatures and juries-most closely bound to the public's wishes.2
What marks the present moment as distinct is an increasing repudiation of these

assumptions about shared and general social knowledge. Today, the dominant
approach to security presumes that conditions of modem complexity (marked by
heightened bureaucracy, institutional specialization, global interdependence, and technological development)
mean that while protection from external danger remains a paramount interest of
ordinary citizens, these citizens rarely possess the capacity to pursue such
objectives adequately. 2' Rather than viewing security as a matter open to popular
understanding and collective assessment, in ways both small and large the prevailing
concept sees threat as sociologically complex and as requiring elite modes of
expertise.22 Insulated decisionmakers in the executive branch, armed with the specialized skills of the
professional military, are assumed to be best equipped to make sense of complicated and often
conflicting information about safety and selfdefense.23 The result is that the other branches-let alone
the public at large-face a profound legitimacy deficit whenever they call for
transparency or seek to challenge presidential discretion. Not surprisingly, the tendency of

procedural reform efforts has been to place greater decision-making power in
the other branches, and then to watch those branches delegate such power back to
the very same executive bodies.
The plans attempt to find the legal way to conduct

surveillance brackets out a rethinking of the security state by
taking its necessity as a given
Williams 7 (Daniel, Law Prof @ Northwestern, After the Gold Rush-Part I: Hamdi,
9/11, and the Dark Side of the Enlightenment,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970279)
fearsome sort of legality is largely shielded from our view (that is, from the view of
Americans---the ones wielding this legality) with the veil of democracy, knitted
together with the thread of process jurisprudence. Within process jurisprudence, there is no
inquiry into the fundamental question: allocation of power between the branches to
accomplish . . . what? It is very easy to skip that question, and thus easy to slide into or
accept circular argumentation.31 With the focus on the distribution of
power, arguments about what to do in this so-called war on terror start off
with assumptions about the nature of the problem (crudely expressed as violent Jihadists who hate our
freedoms) and then appeal to those assumptions to justify certain actions that have
come to constitute this war. The grip of this circularity, ironically enough, gains its
strength from the ideology of legality, the very thing that the Court seeks to protect in this narrative drama,
because that ideology fences out considerations of history, sociology, politics,
and much else that makes up the human experience. What Judith Shklar observed over forty years ago captures the point here:
the legalism mindset--which thoroughly infuses the process jurisprudence that characterizes the Hamdi analysis--produces
the urge to draw a clear line between law and nonlaw which , in turn, leads to the
construction of ever more refined and rigid systems of formal definitions and thus
serve[s] to isolate law completely from the social context within which it
exists. 32 The pretense behind the process jurisprudence--and here pretense is purpose--is the resilient belief that law can be, and ought to be,
impervious to ideological considerations. And so, the avoidance of the accomplish . . . what? question is
far from accidental; it is the quintessential act of legality itself.33 More than that, this
This
deliberate isolation of the legal system . . . is itself a refined political ideology, the expression of a preference that masquerades as a form of judicial
If the Executives asserted prerogative to prosecute a war

in a way that will assure victory is confronted with the prior question about what
exactly we want to accomplish in that war--if, that is, we confront the question posed by Slavoj Zizek, noted at the
outset of this articlethen the idea of national security trumping law takes on an entirely
different analytical hue. Professor Owen Fiss is probably right when he says that the Justices in
Hamdi searched for ways to honor the Constitution without compromising national
interests.35 But that is a distinctly unsatisfying observation if what we are
concerned about is the identification of what exactly those national interests are.36 We
neutrality we find suitable in a democracy.34
may not feel unsatisfied because, in the context of Hamdi, it undoubtedly seems pointless to ask what we are trying to accomplish, since the answer
strikes us as obvious. We are in a deadly struggle to stamp out the terrorist threat posed by Al Qaeda, and more generally, terrorism arising from a certain
violent and nihilistic strain of Islamic fundamentalism. Our foreign policy is expressly fueled by the outlook that preemptive attacks is not merely an
option, but is the option to be used. In the words of the Bush Administrations 2002 National Security Strategy document, In the world we have entered,
the only path to safety is the path of action. And this nation will act.37 OConnor and the rest of the Court members implicitly understand our foreign
policy and the goal to be pursued in these terms, which explains why the Hamdi opinion nowhere raises a question about what it is the so-called war on
the stories we want to tell dictate the stories that we do tell . We

want to tell ourselves stories about our own essential goodness and benevolence,
terror seeks to accomplish. After all,
our own fidelity to the rule of law; and that desire dictates the juridical story that
ultimately gets told. Once one posits that our foreign policy is purely and always defensive, as well as benevolent in motivation,38 then
whatever the juridical storyeven one where the nations highest Court announces that the Executive has no blank check to prosecute a war on terror
the consequences real people must absorb

somehow, is one where the United States has established that its only limit on the
world stage will be its military power. 39 As OConnor sees it, the real problem here is that, given that the
allocation-of-power issue is tied to the goal of eliminating the terrorist threat, we
have to reckon with the probability that this allocation is not just an emergency
provision, but one that will be cemented into our society, since the current
emergency is likely to be, in all practicality, a permanent emergency. But to say we are in a struggle to
stamp out a terrorist threat posed by Islamic fundamentalism, and to say that the only path to safety is the path
of action, conceals--renders invisible, a postmodernist would likely put it--an even more fundamental, and
more radical, question: the allocation of power that the Court is called upon to establish is
in the service of eliminating a terrorist threat to accomplish . . . what ? The standard answer is,
the underlying reality inscribed upon the worlds inhabitants,
our security, which most Americans would take to mean, to avert an attack on our homeland, and thus, as it was with Lincoln, to preserve the Union. And
we accept as obvious that our dilemma is finding the right security-liberty balance .
The problem with that standard answer is two-fold. First, it glosses over the fact that we face no true
existential threat, no enemy that genuinely threatens to seize control over our state apparatus
and foist upon us a form of government to which we would not consent . That fact alone
distinguishes our current war on terrorism from Lincolns quest to preserve the Union against secession.40 Second, this we-mustprotect-the-Homeland answer is far too convenient as a conversation stopper. When
the Bush Administration= National Security Strategy document avers that the only path to safety is the path of action, we ought to ask
what global arrangements are contemplated through that path of action. When that
so,
document announces that this nation will act, it surely cannot suffice to say that the goal is merely eliminating a threat to attain security. All empires
and empire-seeking nations engage in aggression under the rubric of self-defense and the deployment of noble-aims rhetoric. These justifications carry no
genuine meaning but are devices of the powerful and the privileged, with the acquiescence and often encouragement by a frightened populace, to quell
how is it that the nation with the

most formidable military might--the beneficiary of the hugest imbalance in
military power ever in world history--is also the nation that professes to be the
most imperiled by threats throughout the world, often threatened by impoverished
peasant societies (Vietnam, Nicaragua, El Salvador, Chile, Granada, etc.)?42 An empire must always cast
itself as vulnerable to attack and as constantly being under attack in order
to justify its own military aggression. This is most acutely true when the
empire is a democracy that must garner the consent of the populace, which
explains why so much of governmental rhetoric concerning global affairs is
alarmist in tone. The point is that quandaries over constitutional interpretation--ought we be
prudential, or are other techniques more closely tied to the text the only legitimate mode of constitutional adjudication-- may very well mask
what may be the most urgent issue of all , which concerns what exactly this nations
true identity is at this moment in world history, what it is that we are pursuing. Whereas Sanford Levinson has courageously argued that too
many people >venerate= the Constitution and use it as a kind of moral compass,43 which leads to a
certain blindness, I raise for consideration an idea that Hamdi suppresses, through its narrative techniques, which is that too many
people venerate this nation without any genuine consideration of the particular
way we have, since World War II, manifested ourselves as a nation . I join Levinsons suspicion that
our Constitution is venerated as an idea, as an abstraction, without much thought given to its particulars. It is important to be open
to the possibility that the same is true with regard to our nation--the possibility that
we venerate the idea of America (undoubtedly worth venerating), but remain (willfully?) ignorant of the
particulars of our actual responsibility for the health of the planet and its
inhabitants.44 To openly consider such issues is not anti-American--an utterly absurd locution--for to suggest that it is amounts to a denial that
unsettling questions from dissenters within the society.41 Stop and think for a moment,
U.S. actions (as opposed to rhetoric that leeches off of the promise and ideal of America) can be measured by some yardstick of propriety that applies to
all nations.45 The very idea of a yardstick of propriety requires a prior acceptance of two ideas: one, that we are part of something larger, that we are
properly accountable to others and to that larger circumstance; and two, that it is not a betrayal or traitorous for a people within a nation to look within
itself.46 Issacharoff and Pildes, the most prominent process theorists, observe that process jurisprudence may be inadequate to address the risk that we
might succumb to wartime hysteria.47 I would broaden that observation so as to be open to the possibility that the risk goes beyond just wartime
our desire for security and military victory, rooted in our repudiation of a
genuine universal yardstick of propriety that we willingly apply to ourselves (often called
American exceptionalism48)--which means that security and military victory are not ipso facto
the same thing--could easily slide us into sanctioning a form of sovereignty that is
dangerously outmoded and far out of proportion to what circumstances warrant . Process
hysteria, that
jurisprudence supposedly has the merit of putting the balance of security and liberty into the hands of the democratic institutions of our government. But
what it cannot bring into the field of vision--and what is absolutely banished from view in Hamdi--is the possibility that the democratic institutions
the democratic culture generally, the public sphere of that culture, have been
corrupted so severely as to reduce process jurisprudence to a shell game .49
More specifically, the formal processes of governmentality responding to crisis is judicially monitored,
but the mythos of our national identity, particularly the idea that every international crisis
boils down to the unquestioned fact that the United States at least endeavors to act
solely in self defense and to promote some benevolent goal that the entire world
ought to stand behind, is manufactured and thus some hegemonic pursuit in this global war on terror remains
not just juridically ignored, but muted and marginalized in much of our public discussions about it.50
Under process jurisprudence, it is the wording of a piece of legislation, not the
decoding of the slogan national security, that ultimately matters. And under process
jurisprudence, fundamental decisions have already been made --fundamental decisions concerning
the nature of our global ambitions and the way we will pursue them --before the
judiciary can confront the so-called security-liberty balance , which means that the analytical deck has
themselves, and perhaps even
been stacked by the time the justiciable question---that is, what we regard as the justiciable question---is posed. Stacking the analytical deck in this way
reduces the Court members to the role of technicians in the service of whatever pursuit the sovereign happens to choose.51 This is why it is worth asking
is it true that in the case of Hamdi and other

post-9/11 cases, the judiciarys quandary over allocation of power is actually in the
service of genuine security, meaning physical safety of the populace? Does the seemingly
obvious answer that we seek only to protect the safety of our communities against naked violence blind us to a deeper ailment within our culture? Is it
possible that the allocation of power , at bottom, is rooted in a dark side of our
Enlightenment heritage, an impulse within Legality that threatens us in a way
similar to the Thanatos drive Freud identified as creating civilizations
discontent?52 Perhaps Hamdi itself, as a cultural document, signals yet another capitulation to the impulse to embrace a form of means-ends
what many might regard as a naive, if not tendentious, question:
rationality that supports the Enlightenment drive to control and subdue.53 Perhaps what Hamdi shows is that 9/11 has not really triggered a need to
recalibrate the security-liberty balance, but has actually unleashed that which has already filtered into and corrupted our cultureEnlightenments dark
side, as the Frankfurt School understood it54and is thus one among many cultural documents that ought to tell us we are not averting a new dark age,
but are already in it, or at least, to borrow a phrase from Wendell Berry, that we are leapfrogging into the dark. 55 It is impossible, without the benefit of
they are worth confronting, since

the fate of so many people depends on it, given our unrivaled ability and frightening
willingness to use military force. Our cultures inability to ask such questions in any meaningful way, as opposed to
historical distance, to answer these questions with what amounts to comforting certitude. But
marginalizing those who plead for them to be confronted, is somewhat reminiscent of how early Enlightenment culture treated scientific endeavors.
Science, during the rise of Enlightenment culture, rebuffed the why question, banished it as a remnant of medieval darkness, because the why-ness of a
The whole cultural mindset of the

Enlightenment was to jettison precisely such a suggestion. That cultural mindset produced a faith all its own, that
all scientific pursuits, and by extension all human quests for knowledge, will in the end
promote human flourishing. It has taken the devastation of our planet to reveal
the folly of that faith, a blind-spot in the Western mind. It may turn out, as a sort
of silver lining on a dark cloud, that the terrorism arising from Islamic jihadists may
do something similar.
certain scientific pursuit suggested that certain domains of knowledge were bad, off-limits, taboo.
2NC---Rights Link
Exercise of rights causes alienation and abstraction
7/1/15)//LD
we find this substitute connection throughout legal thought
in what we might call the latent content of rights themselves. By representing our
alienated performances as exercises of the rights to freedom of speech, freedom of contract,
equality of opportunity, good faith cooperation, and so on, we "make it the law" that these
performances be conceived as embodying the qualities that would characterize
genuine connection. While at the purely rational, or manifest, level, these abstract rights signify
only the universally allowed possible actions available to each individual in
suspended form (we imagine we "have" these possible actions, and in acting "exercise" them, through a
process of simple deduction 24), at the irrational, or latent, level they link the totality of our current
alienated experience with the realization of desire as a collective fantasy. To the extent
As soon as we begin to look for it,
that these legal images of our existing social life produce mere fantasies of connection, it seems accurate to say
through them we "use" our desire for connection to legitimize our real absence
of connection, just as patriotism is often used to produce a feeling of unreal
solidarity in order to deny our real experience of a lack of solidarity . Yet, as with patriotism,
that
our production of these legal images in common from our dispersed and withdrawn locations reveals our residual
Although we are absorbed in a collective fantasy, we are actually still

together insofar as we are "watching the same movie."
ontological bond.
Discourse of rights is unproductive in the legal sphere---it

cannot transcend conflict of values
Olsen 84 (Frances, Acting Professor of Law, University of California at Los
Angeles. B.A. 1968, Goddard College; J.D. 1971, University of Colorado; S.J.D. 1984,
Harvard University, Statutory Rape: A Feminist Critique of Rights Analysis, Texas
Law Review, Volume 63, Number 3, November 1984, pp. 387-432, Accessed
6/30/15)//LD
A man accused of raping his wife may feel that his privacy rights are being violated ;
a woman may feel that she is sexually exploited by pornography even if it is viewed privately. The right to
privacy and the right to protection exist in fundamental conflict -a conflict that illustrates the
contradiction between freedom of action and security that recurs throughout our legal system.I Privacy
assures the freedom to pursue one's own interests; protection assures that others
will not harm us. We want both security and freedom, but seem to have to choose between them.
Our historical experience with censorship warns us to be wary of state protection;2 our
experience with domestic violence warns us to be wary of privacy. 3 An individual may be
just as oppressed by the state's failure to protect him as by the state's restraint of his freedom for the sake of
protecting another.4 Every difficult legal or political decision can be justified as either protecting freedom or
This conflict
implicates two important and related controversies-the debate between
liberals and critical legal scholars over rights analysis and the debate among
protecting security and attacked as either undermining security or undermining freedom.5
between freedom and security
feminists over sexuality. The central problem of the rights debate is that many social reforms
appear to be based on rights, yet every theory of rights that has been proposed can
be shown to be internally inconsistent or incoherent.6 The central problem of the sexuality
debate is that women are oppressed by moralistic controls society places on women's sexual expression, yet
women are also oppressed by violence and sexual aggression that society allows in the name of sexual freedom.
Rights theory does not indicate which of the two values-freedom or security-the
decisionmaker should choose in a given case. Because it cannot transcend this
fundamental conflict of values, rights theory does not offer an adequate
basis for legal decisions. 7 Moreover, thinking in terms of rights encourages a partial
and inadequate analysis of sexuality . Just as rights theory conceptualizes a society composed of selfinterested individuals whose conflicting interests are mediated by the state, it conceptualizes the problem of
sexuality as a question of where social controls should end and sexual freedom should begin. Libertines and
moralists alike tend to think of sexuality as a natural, presocial drive that is permitted or repressed by society; they
disagree only over where to draw the line between freedom and social control. At one extreme, social control is
limited to requiring consent of the participants; the realm of sexual freedom should extend to all consensual sexual
activity. At the other extreme, freedom is limited to procreational sex within marriage; social control should restrict
sexuality outside this realm.
Rights analysis is useless in politics and solving concrete

problems
Olsen 84 (Frances, Acting Professor of Law, University of California at Los
Angeles. B.A. 1968, Goddard College; J.D. 1971, University of Colorado; S.J.D. 1984,
Harvard University, Statutory Rape: A Feminist Critique of Rights Analysis, Texas
Law Review, Volume 63, Number 3, November 1984, pp. 387-432, Accessed
6/30/15)//LD
The claim that women have rights may be descriptive, hortatory, or analytic. As
description, it expresses a set of established social practices that are fairly decent for women. The claim may
also refer to legal procedures that will activate certain government institutions on
behalf of women."1 As exhortation, the statement that women have rights is an assertion
about the kind of society we want to live in, the kind of relations among people we
wish to foster, and the kind of behavior that is to be praised or blamed . The assertion
that women have rights is a moral claim about how human beings should act toward one another. On a
personal level, to claim a right is to assert one's self-worth, to affirm one's moral
value and entitlement. It is a way for a woman to make a claim about herself and her role in the world.'2
This claim has a positive emotional content that should not be trivialized; it would be difficult and unprofitable to
As an analytic tool, the concept that women have

rights seems powerful but in practice it turns out not to be helpful; it cannot
answer any difficult questions. Women's right to freedom of action conflicts with
their right to security; their right to substantive equality conflicts with their right to
formal equality.' 4 Only by ignoring at least half the rights that could be asserted can
rights rhetoric even appear to solve concrete problems. This conflict between rights becomes
even more apparent if we consider men's rights to freedom and security. If we recognize these multiple
rights claims and try to "balance" the conflicting rights or to choose between them,
we wind up talking politically about how we want to live our lives, not abstractly
about rights. In the following subparts, I consider a variety of rights arguments used by feminists. The critique
drain the word "right" of its emotive value.' 3
of rights relates to these arguments in various ways. In some cases, the critique is irrelevant to the rights claim. In a
rights analysis is
indeterminate and assertions of women's rights do not achieve concrete advances
in the status of women. For this reason, some feminists have stopped relying on rights claims and begun
few cases, the critique is misguided. Often, however, the critique is correct;
criticizing rights analysis.
Rights claims undermine collective political action---every

specific right is contingent to a particular society
Tushnet 84 (Mark, Professor of Law, Georgetown University Law Center. A.B.
1967, Harvard University; M.A. 1971, J.D. 1971, Yale University, An Essay on
Rights, Texas Law Review, Vol. 62, No. 8, May 1984, pp. 1363-1403, Accessed
7/1/15)//LD
The Left always has been fascinated by technology as the means by which all social problems will be overcome. But
it is not technology alone that can make incoherent the claim to a right to reproductive
choice as we now think of it. Suppose that education about contraceptive devices were
widespread and that the devices themselves were readily available. Suppose also that no
stigma attached to being or bearing an illegitimate child . Suppose finally that people
shared a concept of health and illness that made pain and discomfort a natural part
of life, something that simply ran its course and that ought not be cured unless the sick person's life were
threatened by the illness. These conditions would require no dramatic changes in our
present society, and indeed many people today already hold these attitudes. None of them requires
elimination of existing structures of male domination . Suppose finally that pregnancy
were understood by a large majority of the people as something like an untreatable flu that
lasts for nine months but that has no long-term consequences, or as a disfiguring and moderately painful
condition that some people choose to have and that others have visited upon them. This description may omit other
The society I have sketched possesses

Rawls' circumstances of justice, and it is not, as neolithic society is, wildly discontinuous
from our own. One can imagine a path from here to there that includes no violent upheavals, no elimination of
all discord. In that society, asking whether a woman has a right to an abortion would be
like asking our contemporaries whether we have a right not to get the flu.' 9 2. The
Generalization.- The inductive program whose first step I have just sketched would show that every specific
right is just as contingent on social and technological facts as the right to
reproductive choice.20 There is no reason to believe that the program cannot be executed. If it can, it will
show that the set of rights recognized in any particular society is coextensive with that
society. The conditions of the society define exactly what kind of rights-talk makes sense,
and the sort of rights-talk that makes sense in turn defines what the society is. When someone
objects to an act as a violation of a right, the ensuing dialogue either involves a claim that
the challenged act is inconsistent with some "deeper" commitments that the actor hasand who is to resolve that claim?-or deals with what kind of society we ought to have . If both
necessary social conditions,' 8 but the point should be clear.
sides can identify enough openness in the existing structure of rights to make plausible arguments that a right is or
is not involved- that the "deeper" commitments "really" mean something they may talk as if they were debating
the indeterminacy of rights

claims means that the debate is always about what the society is and what it ought
to be. In some social contexts, the party of humanity may be helped by the mutual illusion that the discussion is
about what kind of society actually exists. But as the next section shows,
only about what is. Perhaps that is how observers in the capitalist heartland would like to construe the "unions in
Poland" question. But I doubt that the members of Solidarity see it that way. In March 1964 five black men tried to
use a segregated public library. When they were denied service, one sat down in a chair in the reading room while
the others stood quietly nearby. Or, the five men occupied the library.2' In December 1982 a group of homeless
men pitched tents in Lafayette Park across from the White House. At night their lack of any place to sleep other
than the tents brought home to the public the terrible consequences of its penny-pinching. Or, at night they fell
Can anyone seriously think that it helps either in changing society or in

understanding how society changes to discuss whether the black men and the
homeless men were exercising rights protected by the first amendment? It matters
only whether they engaged in politically effective action. If their action was politically
effective, we ought to establish the conditions for its effectiveness, not because those conditions are
"rights" but because politically effective action is important.
asleep.22
Rights arent real concepts---the State only exists as

individuals grant it power
7/1/15)//LD
it is not possible to pursue an investigation of this type without using
a method that allows us to reexperience the very phenomena that need to be
investigated, in a way that brings to light essential aspects of these phenomena that are concealed from us in
My own view is that
our everyday conscious activity. This effort to critically reexperience the phenomena of everyday life with an eye to
illuminating their hidden meanings is commonly called the phenomenological method,2 and its value for showing
how
law is "constitutive" of our social experience becomes apparent the moment we try to grasp
what "the law" actually is. For example, to say that the law is "a set of rules and principles" could
suggest that it is a thing made up of other things, but by reexperiencing the way these rules and principles normally
we "recognize" that they are not things but ideas. And if we

once again reexperience our everyday use of these ideas, we discover through a new recognition that they form
part of a whole complex of images, including a "State" that "creates" the rules and
"rights" that we "have" because these rules "grant them to us." But what, then, is
this "State" and how can "it" create something, since it appears to be only an
image; and how can "rights" be granted to me by rules, since I appear to be
thinking them into existence? To answer these questions, we must reexperience these ideas and images
once again so as to gain a still clearer sense of their experiential quality (for example , I see that the State
appears to be "above" me and rights appear to suggest "possible actions that I am
allowed to do"). It is through the circular repetition of this process-supported by a critical intuition that allows
appear to us when we use them,
us to transcend the way these phenomena normally appear in our unreflective consciousness-that we gradually can
unveil their concealed everyday meaning. And when we realize that we routinely speak these ideas and images to
each other while also thinking them in some way "together" and yet "by ourselves," we can begin to form an
understanding of how the law is actually constitutive of our social existence.
Rights-talk protects the privileged and obstructs progressive

legislation
Tushnet 84 (Mark, Professor of Law, Georgetown University Law Center. A.B.
1967, Harvard University; M.A. 1971, J.D. 1971, Yale University, An Essay on
Rights, Texas Law Review, Vol. 62, No. 8, May 1984, pp. 1363-1403, Accessed
7/1/15)//LD
2. Rights as HarmfuL-It
is not just that rights-talk does not do much good. In the

contemporary United States, it is positively harmful. (a) An example: the first
amendment .- In 1924, Felix Frankfurter wrote an article for the New Republic arguing that the due process
clause of the fourteenth amendment should be repealed.72 On the negative side, he argued, the courts were using
the clause to thwart the enforcement of socially beneficial programs adopted through the regular processes of
democratic government. On the positive side, the American polity had reached the point at which regular
democratic processes could be counted on to protect the interests in fairness with which the due process clause
balance between harm and necessity tilted in favor of

repealing the clause; the occasions for its proper use were rare enough to be
outweighed by the opportunities for its abuse. I sketch here a parallel argument regarding the first
was properly concerned. The
amendment. Although I will concentrate on the negative side of the argument, its positive component, such as it is,
The first amendment has replaced the due process clause as the
primary guarantor of the privileged. Indeed, it protects the privileged more
perniciously than the due process clause ever did . Even in its heyday the due process clause
stood in the way only of specific legislation designed to reduce the benefits of privilege. Today, in contrast, the
first amendment stands as a general obstruction to all progressive legislative
efforts. To protect their positions of privilege, the wealthy can make prudent
investments either in political action or, more conventionally, in factories or stocks.
should not be forgotten.
But since the demise of substantive due process, their investments in factories and stocks can be regulated by
legislatures. 73 Under Buckley v. Valeo 74 and First National Bank v. Bellottl 75 however, their investments in
politics-or politicians-cannot be regulated significantly.76 Needless to say, careful investment in politics may
The commercial speech cases similarly

protect the privileged in the name of the less privileged. Virginia State Board of Pharmacy v.
prevent effective regulation of traditional investments.
Virginia Citizens Consumer Council, Inc.,7 7 the origin of contemporary doctrine, considered a state law prohibiting
advertising of drug prices. The Court held that the law deprived consumers of information that was central to their
informed participation in a market economy.78 Of course the law at issue was a "bad, old-fashioned" regulation
designed to protect an industry against competition.79 But once let loose, commercial speech doctrine ravaged
"new" regulation as well. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court invalidated
an effort to regulate advertising promoting the use of energy. 80 Central Hudson can be seen more broadly as
obstructing legislative attempts to regulate the way in which advertising and other kinds of messages shape public
consciousness about what our problems are, what solutions would be reasonable, and why some things are
when proposals for social control of

investment can be dismissed as utopian, the commercial speech cases converge
with the campaign finance cases. These cases are unequivocally pernicious uses of
the first amendment. I take it that most liberals agree. Often they want to treat the decisions as aberrations,
reasonable and others are not.8' Thus, for example,
simply wrong decisions that depart from the true meaning of the first amendment. To the extent that they have
conceded the validity of the indeterminacy critique, however, that response ought to embarrass them. But even
wrong or right the decisions exist as part of the contemporary use of

the first amendment, which we are trying to evaluate pragmatically in light of the
political interests of the party of humanity . Score several points for the disutility critique.
more important,
Rights are constitutive of legalism they are the agent of the

law
Buonamano 98 (Roberto, lecturer at University of Technology, Sydney. The
Economy of Violence: Derrida on Law and Justice (June 1998), Ratio Juris vol. 11 no.
2, http://onlinelibrary.wiley.com/doi/10.1111/1467-9337.00083/pdf)
2. The nature of right assumes an indeterminate and equivocal status in Derridas writings. At one point in Force
of Law Derrida equates the term juste (translated as just) in one of Pascals Penses (It is just that what is just be
followed (my emphasis)) with right (But this must be followed is right) (Derrida 1992b, 10). At another
point he translates droit as right or law (Derrida 1992b, 13); the conjunctives right or law appear frequently in
the essay, apparently evading a definitive distinction between the two terms. Further, the terms right and law
occasionally appear as synonyms (distinct from conjunctives), one cryptically replacing the other (To address
oneself to the other in the language of the other is, it seems, the condition of all possible justice, but it is not only
impossible but even excluded by justice as law (droit), inasmuch as justice as right seems to imply an element of
There is a sense in which right operates as a

mediating factor between law and justice . To speak of the just law, to attempt
access to the law, as the inaccessible, one has only the discourse of rights at ones
disposal. Derrida goes some way to implying this in his reference to the laws of literature. To understand a text
universality (my emphasis) (Derrida 1992b, 17).
as a text, writing as literature, amounts to achieving a consensus between readers. This consensus depends upon a
system of laws and conventions, which are both of the essence of the text and the tools for interpretation. The laws
found are manifested through certain presuppositions: the texts identity (singularity and unicity), author (distinct
from the characters) and narrative (related events) (Derrida 1992a, 18487). At one point Derrida conceptualises
these presuppositions as rights; hence, articulation of the rights of identity, authorship and narration is the means
by which a reader attempts access to the text, that is, to, and through, an interrogation of its laws and conventions.
We may say that rights are as necessary to law as the law is the source of the
maintenance of rights. We might not perceive the law as a door, an access, were it
not for the mediation of rights. For all that, rights derive their ontological strength
from law, and cannot thus be separated from it , notwithstanding the temptation to
align right with justice, with an alternative discourse empowered with the critique of
law. Whilst Kafkas countryman initially perceives his relation to law as one of right to
access, the right to engage the law in his peculiar story, to access the rights which
the law ensures (the law, he thinks, should be accessible at all times and to
everyone) (Kafka as quoted in Derrida 1992a, 183), he is confronted with the unexpected
difficulties of an indeterminate number, and indeterminately increasing strengths, of doorkeepers;
he is thus confronted with the realisation that rights do not constitute an entity that
is independently possessed and thus permits access to law, but rather are the
agent of the law, bound up with its transcendence, merely offering the desire for
engagement with it.
2NC---Courts Link
SCOTUS cant create real surveillance change---inevitably
legitimizes congressional and executive actions
Balkin 8 (Jack M., Knight Professor of Constitutional Law and the First
Amendment, Yale Law School, 1/1/06, The Processes of Constitutional Change:
From Partisan Entrenchment to the National Surveillance State, Fordham L. Rev. 75
(2006): 489-497, Accessed 7/5/15)//LD
Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory
of "partisan entrenchment."' Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an
update of our thoughts, together with some amendments to our initial formulation. By far the most important amendment is to draw
the development of constitutional doctrine by courts occurs within

the broader framework of changes in constitutional regimes, which include changes
in institutions, legislation, and administrative regulation . The forces of democratic politics
drive these regime changes, and the major actors are not courts but the political
branches. Although courts may initially resist these changes, in the long run, they
cooperate with them, shape their contours, and legitimate them through the development of
constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions and
out in more detail how
practices that we call the "National Surveillance State," which, we think, represents the major constitutional development of our era.
The National Surveillance State responds to the particular needs of warfare, foreign
policy, and domestic law enforcement in the twenty-first century . That such a state is emerging
has become clear in the wake of 9/11 and debates about the War on Terror. However, it is not limited to the specific problems posed
The courts will help set the constitutional

contours of the National Surveillance State, but much of their work will consist of
statutory interpretation and administrative review. Most of the apparatus of the National
Surveillance State will be developed by Congress and particularly by military and
civilian bureaucracies within the executive branch . Although in the past several years the Republican
Party has had the primary responsibility for shaping the institutions and practices of the National Surveillance State, both
major political parties will participate in its construction . How the National Surveillance State
by terrorism, and key elements have been in place for some time.
develops will depend on the contingencies of politics and the results of future elections, which, of course, will produce new judicial
The courts will bless and legitimate these developments , much as they
legitimated the rise of the administrative and regulatory state and the national
security state in the middle of the twentieth century . The initial formulation of our theory consisted of
four basic points: (1) by installing enough judges and Justices with roughly similar
ideological views over time, Presidents can push constitutional doctrine in directions they
prefer; (2) partly for this reason the Supreme Court tends, in the long run, to cooperate with
the dominant political forces of the day; (3) not all Presidents are equally interested or equally
appointments. 2
effective in entrenching their views in the judiciary, and Presidents face different opportunities and obstacles that may enhance or
significant changes in judicial doctrine usually reflect larger

institutional changes-like the growth of the administrative state-and broader
political forces. We now explain each of these features of our theory in more detail.
limit their success; (4) finally,
2NC---Congress Link
The Surveillance State inevitably shifts power from Congress
to the President---legislative restraint doesnt solve
Amendment, Yale Law School, 1/1/08, The Constitution in the National Surveillance
State, Minnesota Law Review 93.1, Accessed 7/5/15)//LD
the National Surveillance State will probably shift institutional
power and authority from Congress to the presidency . There is no serious
possibility of completely forestalling this shift, which, after all, can be said to
have been underway at least since the beginning of World War II . Indeed, the political
From a constitutional perspective,
sociologist Harold Lasswell first defined the "garrison state" in 1941 as one in which "the specialists on violence are the most
powerful group in society."'124 By 1961, in his famous "farewell address," President Eisenhower, himself one of the most
distinguished military officers of World War II, warned his fellow citizens of the potential dominance of a "military-industrial complex"
the only questions are how much more executive

aggrandizement will occur and whether new institutions can be adapted to prevent
the inevitable risks that will accompany the shift toward ever-increasing
surveillance. 126 The first is the risk of harm to individual privacy and civil liberties. The second is the inevitable dangers of
that was transforming American politics. 125 Rather,
concentrating too much power in one branch of government without accountability and transparency. The third risk, which stems
from the second, is the danger of informational insularity, in which the executive is unable or unwilling to acknowledge and
Irving Janis coined the

term "groupthink" to refer to institutional tendencies toward insularity , and recent
work in behavioral psychology has reinforced these concerns . 127 One advantage of a system of
assimilate new information that requires it to reshape and redirect its plans. Some years ago
separated powers, especially if one of the competing institutions includes strong individuals from the opposition political party, is
that the other branches, because of their natural competition, consistently force new information and impose hard-learned lessons
on the others. From this perspective,
a constitutional system is also a system of information

gathering and a system of learning. But if one branch-the presidency-need pay no
attention to the others, or can thoroughly dominate them through appeals to party
loyalty, as was largely the case during the first six years of the Bush Administration, then it will not be forced to
confront the recalcitrant information about the world that the other branches have
the incentive and the opportunity to provide . The National Surveillance State arises from a real concern:
the enhanced need for processing information about the outside world and reacting appropriately to it given the changes in foreign
affairs and warfare. The danger is that the concentration of power in this new state will prove particularly inept at processing the
relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example. The need for the
its consequences will reverberate

throughout domestic politics. Courts will play a role in determining the boundaries
of this emerging constitutional construction, but for the most part , we predict, they will
legitimate and bless it, much as they legitimated and blessed the administrative
state, the welfare state, and the national security state in previous years . As we shall note
National Surveillance State arises from war and foreign policy, but
below, there is no particular reason to view the debate over the National Surveillance State as truly "partisan." For better or for
there may be no meaningful division between the Democratic and Republican

Parties with regard to the imperatives for, and the broad outlines of, the National
Surveillance State. The difference between the two major political parties, we think, will consist of fairly marginal disputes
worse,
about how best to implement the new forms of governance, what kinds of accountability and transparency mechanisms are built
into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Still, even if some form of
the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes.
2NC---Alternative
2NC---Alternative Solvency
The alternative is a politics of resistance challenging
militarized surveillance---radical, collective interrogation of
institutions
Giroux 4 (Henry A., PhD, Professor of Education at Boston Univesrity, "War on
Terror, The Militarising of Public Space and the Culture in the United States, Third
Text, Vol. 18, Issue 4, 2004, pp. 211-221, Accessed 7/6/15)//LD
militarisation are ratcheted up within multiple spaces in the body politic, they increasingly begin
to produce the political currency of what begins to look like proto-fascism in the United States. To
expose and resist such an ideology should be one of the primary responsibilities of
intellectuals, activists, parents, youth, community members, and others concerned about the fate of
democracy on a global scale. Working both within and outside traditional public spheres, artists, community activists, writers,
As the forces of
and educators can expose the ideology of militarisation in all its diversity and how it risks turning the United States into a military
state while at the same time undermining crucial social programmes, constitutional liberties, and valuable public spaces. According
this new politics of resistance demands: Fighting to win back the

minds and hearts of people. . . . It means keeping an eagle eye on public
institutions and demanding accountability. It means putting your ear to the ground and listening to the
whispering of the truly powerless. It means giving a forum to the myriad voices from the hundreds
of resistance movements across the country which are speaking about real things
to Arundhati Roy,
about bonded labor, marital rape, sexual preferences, womens wages, uranium dumping, unsustainable mining, weavers woes,
farmers suicides. It means fighting displacement and dispossession and the relentless, everyday violence of abject poverty.
Fighting it also means not allowing your newspaper columns and prime-time TV
spots to be hijacked by their spurious passions and their staged theatrics, which are
designed to divert attention from everything else. 42 Progressives everywhere have
to reinvent the possibility of an engaged politics and real strategies of resistance . This
suggests not only working through traditional spheres of political contestation, such as elections or union struggles or various means
Collective struggle must combine the tasks of a radical public pedagogy

with massive acts of nonviolent, collective disobedience. Such acts can serve to educate,
mobilise, and remind people of the importance of struggles that change both ideas
and relations of power. By making militarisation visible through the force of words and peaceful resistance, politics
can become both meaningful and possible as a contested site through which people
can challenge both locally and through international alliances the obscene
accumulation of power symptomatic of the increasing militarisation of public space that is spreading both throughout
the US and across the globe. Arundhati Roy is right in her incessant and courageous call to globalise dissent but if dissent is
to work it must have a focus that cuts across empires, nation states, and local
spaces, to the heart of a clear and present danger posed to democracy and social
justice. Challenging militarisation in all of its expressions is a direct strike at the
heart of a policy that has exceeded democracy and now formed a dreadful pact with
a creeping and dangerous authoritarianism. We find ourselves in the midst of a war globally, not simply a
of education.
war against terrorism but also a war against democratic solidarity in which a democratic future both at home and abroad stands in
the balance.
Institution-oriented politics fail our alternative politics must

seek to work outside of the law
School of Public Affairs at American University in Washington, DC, Politics of
Postanarchism (2010), Edinburgh University Press, pp. 107-109)
Central to anarchism, as we have seen, is the repudiation of state authority. The state is seen as a violent institution
of domination as a structure which sustains and intensifies other hierarchies and relations of power and
The state is always accompanied by a statist mindset or political logic which affirms the idea of the necessity and inevitability of the
state, particularly at revolutionary junctures, and prevents us thinking beyond it. Yet
thinking beyond the state is something we must do. Indeed, I see this as being the central task
for radical politics today. As Badiou also recognises, the state, and the failure to transcend or
escape its thrall, is one of the fundamental problems of radical politics: More
precisely, we must ask the question that, without a doubt, constitutes the great
enigma of the century: why does the subsumption of politics, either through the
form of the immediate bond (the masses), or the mediate bond (the party)
ultimately give rise to bureaucratic submission and the cult of the State? 5 What must
exploitation, including economic relations.
be explained, in other words, is the relation that ties us to the state and which leads to the perpetuation of state
Badiou sees the state as more than simply an institution or

series of institutions; it is also a certain relationship of domination to which people
are bound through mechanisms like parliamentary democracy or organisations
like the vanguard party. This is why, for Badiou, there is a certain link between the party and the state
power. Like the anarchists,
the revolutionary party is a centralised and disciplined organisation structured around the aim of seizing state
power; indeed, he refers to it as if it were the one entity the party-state. 6 This critique of the state and the party
has clear resonances with anarchism. As we saw in Chapter 3, anarchists regard the party as an authoritarian
structure which is organised around the future goal of gaining state power; indeed, the party is a microcosm of the
If radical politics is to escape

the pitfalls of state power and its inevitable authoritarianism, it must also eschew
the form of the party. We also find further parallels with anarchism in Badious understanding of the state
state itself, and an instance of the state even before it gets into power.
and its relation to society. In Badious analysis, the state is seen as a certain way of representing a social situation,
a way of including and counting as one say through categories of citizenship, practices such as voting the
the state has no

regard for the individual, for differences; 7 it simply incorporates the individual as an
anonymous element in an overall structure, through the ordering and assigning of
places and roles. We could say, for instance, that the states surveillance of public places, its
obsession with identification and information gathering , its management of crowds
and movements of people, are measures designed to ensure that everyone stays
put, that everyone is counted, that nothing escapes its incorporation. Furthermore,
multiple elements or parts of that situation. Here, Badiou maintains, much like Stirner, that
according to Badiou, while the state is a re-presentation of a situation structured by a particular set of social
relations say those of bourgeois society with its class hierarchies and capitalist economic exchanges at the same
time it is also distinct and separate from it, forming a kind of excrescence. For Badiou, however, the problem with
by focusing on this point of excess on seeing the

state as a coercive apparatus that can simply be seized in a revolutionary upheaval
and later suppressed is that the state is much more intransigent and inexorable
than Marxists imagined, and that the revolution would simply lead to a changing of the
guard: This is because even if the route of political change . . . is bordered by the State, it cannot in any way let
itself be guided by the latter, for the State is precisely non-political, insofar as it cannot
change, save hands, and it is well known that there is little strategic signification in
such a change. 8 Instead, radical politics must bear witness to the event, in which is
the Marxist analysis of the state is that
revealed what Badiou calls the void of the situation: that which is not counted or
formally included in the situation, its radical and destabilising excess . 9 I shall return to
this idea of the event and its political consequences later; but it would appear at this stage that there are certain
parallels with anarchism in Badious approach to the question of the state in revolutionary politics. The idea that the
Marxist seizure of state power will produce only a changing of the guard is, as we saw in Chapter 3, precisely the
same warning given by anarchists in the nineteenth century. Rather than the state having a class or political
character so that if the right class controlled it its oppressive character would be transformed the state is, as
Badiou puts it, non-political in the sense that it cannot change in this way. In anarchist terms, this refers to the way
that the state has its own specific structural logic of domination and self-perpetuation that is not reducible to class,
and that cannot be displaced simply because representatives of a different class are at the helm. So, anarchists
what is needed is a different form of politics which is not

guided by the state: that is, which does not have as its aim the revolutionary
seizure of state power through the vanguard party, but rather which seeks to
overcome state power through the construction of a different set of relations. In other
would share Badious point that
words, there is a need for a politics situated outside the state. Indeed, Badiou talks about the need for a politics that
This might take the form of non-party political organisations

which shun involvement in parliamentary processes and which focus on specific
issues, such as the status and rights of illegal migrants , 11 or an autonomous
commune where new, egalitarian relations are made possible and whose existence
constitutes a fundamental rupture with state-ordered society. 12
puts the State at a distance. 10
Aff
Top Shelf
Perm
The permutation is an act of deconstruction it acknowledges
the finitude of calculability as the basis for responsibility and
political action
Popke 3 (E. Jeffrey, Department of Geography, East Carolina University.
Poststructuralist ethics: subjectivity, responsibility and the space of community
(2003), Progress in Human Geography vol. 27 no. 3, pp. 298-316,
http://myweb.ecu.edu/popkee/Poststructuralist%20Ethics.pdf)
VII The politics of deconstruction Within geographys increasing engagement with poststructuralist theory, there
have recently been a number of discussions of deconstruction (see Barnett, 1999). Most accounts describe
deconstruction as a means of exposing the paradoxes, contradictions and elisions which undermine the purported
coherence of philosophical or conceptual systems (Dear, 1988; Barnes, 1994). Others have drawn on
deconstruction to consider the importance of context in the creation of meaning and interpretation (Dixon and
Jones, 1998; Barnett, 1999). For the most part, these authors draw upon Derridas early works, and especially those
they suggest that

deconstruction can be seen as a form of intervention , a strategy to highlight the
instability of meaning, and thereby to multiply the potential for alternative
understandings. As Doel (1994: 1051) puts it, deconstruction affirms a movement of
perturbation, turmoil, and dislocation . . . [it] is the affirmation of destabilization on the
move. Although this destabilizing impulse is undoubtedly important, I want to suggest that deconstruction
can be given a more political, and hence ethical, inflection than many authors do. In a series
of more recent texts, Derrida has suggested that deconstructions movement of destabilization
can serve as both a critique of the normative foundations of international law and
politics and also a means of addressing our responsibility for the other. Indeed, Derrida
dedicated to writing and textuality (e.g., Derrida, 1976; 1988). Taken together,
(1990: 945) has made the provocative claim that deconstruction is justice. We can begin to unpack this by noting
that, within the discourses of modernity, the political has become circumscribed, limited to a discrete set of
Deconstructions
ethico-political purchase then, like its philosophical effect, is a result of an
intervention that aims to destabilize the grounds of authority for these norms, to
show that law, constitution, state territorialization, human rights and so on are
ultimately founded on what Derrida (1990: 943) terms a violence without ground. For
institutional practices, which are themselves supported by juridical and territorial norms.
this reason, Derrida notes, law, like any system of grounding or authority, is inherently deconstructible.
Deconstruction, by destabilizing the grounds of authority for international politics,

opens the terrain to a new definition of the political , which would move beyond the
metaphysics of sovereignty. What is needed, Derrida (1999: 221) suggests, is: a dimension of
the political divested of everything which for better but especially for worse, in our modernity
has welded the political to the ontological (in the first place, to a certain conception of effectivity or
present being of the universal cast in terms of the state, and of cosmopolitical citizenship or the International cast
in terms of the Party). This ungrounding of the political may appear as a form of nihilism, in which all arguments
and positions have equal validity, leading to a condition of anarchy or political stasis. Yet I would suggest instead
deconstruction offers the potential to recast the political on the basis of our
responsibility to respect the event of the decision. As Derrida puts it (1999: 240): [political
commitment] depends, at every instant, on new assessments of what is urgent in ,
first and foremost, singular situations, and of their structural implications. For such assessment,
that
there is, by definition, no preexisting criterion or absolute calculability; analysis must begin anew every day
everywhere, without ever being guaranteed by prior knowledge. It is on this condition, on the condition constituted
by this injunction, that there is, if there is, action, decision and political responsibility repoliticization [emphasis
The lack of any normative grounding for the decision does not mean
that we need not decide. On the contrary, political responsibility is called for only
original].
because there is no way to guarantee the justness of the decision, because its
outcome remains undecidable. Far from being a foreclosure of the political, then, the
ethics of deconstruction would re- politicize or, as Derrida says elsewhere (1996: 85),
hyper-politicize, disseminating the moment of political decision across infinite contexts
(Derrida, 1995: 273): if I speak so often of the incalculable and the undecidable its not out of a simple predilection
for play nor in order to neutralize decision: on the contrary, I believe there is no responsibility, no ethico-political
decision, that must not pass through the proofs of the incalculable or the undecidable. Otherwise, everything would
to assert that the decision

is ultimately undecidable does not mean that there can be no such thing as truth,
right or good. It means, rather, that if we purport to know in advance the specific
content of such notions, then the event of the decision is divested of its political
content, it is simply deduced from an existing body of knowledge . . . [as] by a calculating machine (Derrida,
1999: 240). Deconstruction, then, affirms the necessity to judge, to analyse, to make
decisions, in the context of an event that is conditioned by our inexhaustible
responsibility to the other (Derrida, 1997: 18): That is what gives deconstruction its
movement, that is, constantly to suspect, to criticize the given
determinations of culture, of institutions, of legal systems, not in order to
destroy them or simply to cancel them, but to be just with justice, to respect
this relation to the other as justice [emphasis added]. A deconstructive ethics would in this way incite a
be reducible to calculation, program, causality. This point is worth emphasizing:
political responsibility that first and foremost opens us to the (face of) the other, in which we surrender our
sovereignty in a form of vigilant passivity to the call of the other (Levinas and Kearney, 1986: 29). This passive
opening has been denounced by some as simply a form of patience or tolerance which justifies inaction. Thus
Bridge (2000: 526) argues that, for Levinas, responsibility need not result in action and Peet (1998: 242) charges
that poststruc- turalism advocates a passive affirmation . . . [that] waits for an-Other always to come that is,
But I read the

passivity of ethical responsibility differently, as a form of opening to limitless
possibility in the absence of hubris, an orientation that derives, not from
indifference, but from the recognition that I cannot calculate everything, predict
and program all that is coming, the future in general, etc., and this limit to
calculability or knowledge is also, for a finite being, the condition of praxis,
decision, action and responsibility (Derrida, 1999: 249). This responsibility is an exposure to the
conveniently never there so nothing ever needs doing in terms of political practice.
event, in its singular and incalculable context, through which the call of the other enjoins an ethics and politics of
decision.
Perm solves best---totalizing rejection sacrifices immediate

suffering---short-term legal strategies are not mutually
exclusive with the alt
Smith 13 (Andrea, UC Riverside media and cultural studies professor, The Moral
Limits of the Law: Settler Colonialism and the Anti-Violence Movement, Settler
Colonial Studies, Taylor and Francis)
At the same time, violence against Native women is at epidemic rates. The 1999 Bureau of Justice Statistics report, American Indians and Crime, finds that sexual assault among Native
Americans is 3.5 times higher than for all other races living in the US. Unlike other racial groupings, the majority of sexual assaults committed against Native American women are interracial.3 In particular, the majority of people who perpetrate sexual assault against Native women are white. Because of the complex jurisdictional issues involving tribal lands, the
majority of sexual assaults against Native women are committed with impunity. Depending on the tribe, non-Native perpetrators of sexual assault on Indian reservations may fall out of
state, federal and tribal jurisdiction. And tribes themselves have not developed effective means for addressing violence in their communities. The intersections of gender violence and
colonialism in Native womens lives force Native anti-violence advocates to operate through numerous contradictions. First, they must work within a federal justice system that is
premised on the continued colonisation of Native nations. Second, they must work with tribal governments that often engage in gender oppressive practices. In addition, as Native
studies scholar Jennifer Denetdale argues, many tribal governments act as neo-colonial formations that support tribal elites at the expense of the community.4 Third, they must also
address women who need immediate services, even if those services may come from a colonising federal government or a tribal government that may perpetuate gender oppression.
Given the logics of settler colonialism, it may seem to be a hopeless contradiction to work within the US legal system at all. In fact , many social justice advocates eschew engaging in
we are often presented with two dichotomous choices: shortterm legal reform that addresses immediate needs but further invests us in the
current colonial system or long-term anti-colonial organising that attempts to avoid
legal reform for this reason. Consequently,
the political contradictions of short-term strategies but does not necessarily focus
on immediate needs. This essay will explore possibilities for rethinking this
dichotomous approach by rethinking the role of legal reform in general
. The essay foregrounds alternative approaches
using a Native feminist analytic towards engaging legal reform that may have a greater potential to undo the logics of settler colonialism from within. As I have argued elsewhere, Native feminism as well as Native studies is not limited in its object of analysis.5 Rather, in its interest in addressing the
intersecting logics of heteropatriarchy and settler colonialism, it is free to engage with diverse materials. In looking then towards alternative strategies for undoing settler colonialism through the law, I contend that it is important to engage important work that might not seem to be directly about Native
peoples or settler colonialism if this work helps provide new resources for how we could strategically engage the law. Consequently, I engage the work of legal scholars and activists that address very different areas of law as a means to challenge some of the current assumptions that undergird both reformist
and revolutionary approaches to the law. DECOLONIAL REALISM Critical race theorist Derrick Bell challenged the presupposition of much racial justice legal reform strategies when he argued that racism is a permanent feature of society. While his work is generally cited as a critical race theoretical approach, I
would contend that his work implicitly suggests a settler colonial framework for understanding legal reform. That is, many of the heirs of Derrick Bell do not follow the logical consequences of his work and argue for an approach to race and the law that seeks racial representation in the law.6 However, Bells
analysis points to the inherent contradictions to such an approach. Rather than seeking representation, Bell calls on Black peoples to acknowledge the permanence of our subordinate status.7 Espousing the framework of racial realism, Bell disavows any possibility of transcendent change.8 To the contrary,
he argues that [i]t is time we concede that a commitment to racial equality merely perpetuates our disempowerment.9 The alternative he advocates is resistance for its own sake living to harass white folks or short-term pragmatic strategies that focus less on eliminating racism and more on simply
ensuring that we do not worsen conditions for those we are trying to help.10 While Bell does not elaborate on what those strategies may be, he points to a different kind of reasoning that could be utilised for legal reform. In his famous story, Space Traders, aliens come to planet Earth promising to solve the
worlds problems if world leaders will simply give up Black people to the aliens. This story narratively illustrates how thin white liberal commitments to social justice are. First, the white people of course do give up Black people to the aliens without much thought. But what more dramatically illustrates this
point is that the reader knows that, almost without a doubt, if this were to happen in real life, of course Black people would be given up. Within this story, however, is a little-commented scene that speaks to perhaps a different way to approach legal reform within the context of white supremacy. Gleason
Golightly, a conservative black economics professor who serves as an informal cabinet member for the President, becomes embroiled in a fight with the civil rights legal establishment about the best means to oppose the proposed trade. Golightly had previously pleaded with the President and his cabinet to
reject it. When his pleas are not heard, he begins to reflect on how his support for conservative racial policies in the interests of attaining greater political power had been to no avail. He realises the strategy behind his appeal to the President was doomed to fail. In retrospect, though [his] arguments were
based on morality [] [i]nstead of outsmarting them, Golightly had done what he so frequently criticised civil rights spokespersons for doing: he had tried to get whites to do right by black people because it was right that they do so. Crazy! he commented when civil rights people did it. Crazy! he mumbled
to himself, at himself.11 Realising the error of his ways, Golightly interrupts this civil rights meeting in which activists plan to organise a moral crusade to convince white Americans to reject the space traders proposal. Instead, he suggests that they should tell white people that they cannot wait to go on the
ship because they have learned they are being transported to a land of milk and honey. White people, argues Golightly, so oppose policies that benefit Black people, even if they benefit white people, that they will start litigating to stop the space traders proposed plan.12 The civil rights establishment rejects
this strategy as a moral outrage and begins a racial justice campaign, ultimately to no avail. What this story troubles is social justice movements investment in the morality of the law. Despite the US legal systems complicity in settler colonialism, patriarchy, capitalism and white supremacy since its inception,
they advocate strategies for change that rest on the presupposition that the law can somehow be made to support the end of sexism, racism and classism. Historically, as more radical racial and social justice organisations were either crushed or co-opted by the US governments during the 1970s, these
movements shifted from a focus on a radical restructuring of the political and economic system to a focus on articulating identity based claims that did not necessarily challenge the prevailing power structure.13 If groups were not going to directly challenge the state, they could then call on the state to
recognise their claims to equality and redress from harms perpetrated by other social actors. Ironically, then, the same US government that codified slavery, segregation, anti-immigrant racism, and the genocide of indigenous peoples, now becomes the body that will protect people of colour from racism. The
Bell suggests that it may be possible to engage

in legal reform in the midst of these contradictions if one foregoes the fantasy that
the law is morally benevolent or even neutral. In doing so, more possibilities for
strategic engagement emerge. For instance, in the Racial Preference Licensing Act, Bell suggests that rather than criminalise racial discrimination,
fact that the US itself could not exist without the past and continuing genocide of indigenous peoples in particular does not strike liberal legal reformists as a contradiction.
the government should allow discrimination, but tax it. Taxes accrued from this discrimination would then go into an equality fund that would support the educational and economic
interests of African-Americans.14 As I have argued elsewhere, the law enforcement approach has been similarly limited in addressing the issues of gender violence when the majority of
men do, or express willingness to engage in, it.15 As a result, criminalisation has not actually led to a decrease in violence against women.16 Anti-violence activists and scholars have
widely critiqued the supposed efficacy of criminalisation.17 As I will discuss later in this essay, Native women in particular have struggled with the contradictions of engaging the legal
system to address the legacies of colonial gender violence. While there is growing critique around criminalisation as the primary strategy for addressing gender violence, there has not
been attention to what other frameworks could be utilised for addressing gender violence. In particular, what would happen if we pursued legal strategies based on their strategic effects
rather than based on the moral statements they propose to make? DISTRUSTING THE LAW Aside from Derrick Bell, because racial and gender justice legal advocates are so invested in
the morality of the law, there has not been sustained strategising on what other possible frameworks may be used. Bell provides some possibilities, but does not specifically engage
alternative strategies in a sustained fashion. Thus, it may be helpful to look for new possibilities in an unexpected place, the work of anti-trust legal scholar Christopher Leslie. Again, the
work of Leslie may seem quite remote from scholars and activists organizing against the logics of settler colonialism. But it may be the fact that Leslie is not directly engaging in social
to disinvest in the morality of the law in a manner which is often

difficult for those who are directly engaged in social justice work to do. This
disinvestment, I contend is critical for those who wish to dismantle settler
colonialism to rethink their legal strategies.
justice work that allows him
In Trust, Distrust, and Anti-Trust, Christopher Leslie explains that while the economic impact of cartels is incalculable, cartels are also unstable.18
Because cartel members cannot develop formal relationships with each other, they must develop partnerships based on informal trust mechanisms in order to overcome the famous prisoners dilemma. The prisoners dilemma, as described by Leslie, is one in which two prisoners are arrested and questioned
separately with no opportunity for communication between them. There is enough evidence to convict both of minor crimes for a one year sentence but not enough for a more substantive sentence. The police offer both prisoners the following deal: if you confess and implicate your partner, and your partner
does not confess, you will be set free and your partner will receive a ten-year sentence. If you confess, and he does as well, then you will both receive a five-year sentence. In this scenario, it becomes the rational choice for both to confess because if the first person does not confess and the second person
does, the first person will receive a ten-year sentence. Ironically, however, while both will confess, it would have been in both of their interests not to confess. Similarly, Leslie argues, cartels face the prisoners dilemma. If all cartel members agree to fix a price, and abide by this price fixing, then all will benefit.
However, individual cartel members are faced with the dilemma of whether or not they should join the cartel and then cheat by lowering prices. They fear that if they do not cheat, someone else will and drive them out of business. At the same time, by cheating, they disrupt the cartel that would have enabled
them to all profit with higher prices. In addition, they face a second dilemma when faced with anti-trust legislation. Should they confess in exchange for immunity or take the chance that no one else will confess and implicate them? Cartel members can develop mechanisms to circumvent pressures. Such
mechanisms include the development of personal relationships, frequent communication, goodwill gestures, etc. In the absence of trust, cartels may employ trust substitutes such as informal contracts and monitoring mechanisms. When these trust and trust substitute mechanisms break down, the cartel
members will start to cheat, thus causing the cartel to disintegrate. Thus, Leslie proposes, anti-trust legislation should focus on laws that will strategically disrupt trust mechanisms. Unlike racial or gender justice advocates who focus on making moral statements through the law, Leslie proposes using the law
for strategic ends, even if the law makes a morally suspect statement. For instance, in his article, Anti-Trust Amnesty, Game Theory, and Cartel Stability, Leslie critiques the federal Anti-Trusts 1993 Corporate Lenience Policy that provided greater incentives for cartel partners to report on cartel activity. This
policy provided automatic amnesty for the first cartel member to confess, and decreasing leniency for subsequent confessors in the order to which they confessed. Leslie notes that this amnesty led to an increase of amnesty applications.19 However, Leslie notes that the effectiveness of this reform is
hindered by the fact that the ringleader of the cartel is not eligible for amnesty. This policy seems morally sound. Why would we want the ringleader, the person who most profited from the cartel, to be eligible for amnesty? The problem, however, with attempting to make a moral statement through the law is
that it is counter-productive if the goal is to actually break up cartels. If the ringleader is never eligible for amnesty, the ringleader becomes inherently trustworthy because he has no incentive to ever report on his partners. Through his inherent trustworthiness, the cartel can build its trust mechanisms. Thus,
argues Leslie, the most effective way to destroy cartels is to render all members untrustworthy by granting all the possibility of immunity. While Leslies analysis is directed towards policy, it also suggests an alternative framework for pursuing social justice through the law, to employ it for its strategic effects
rather than through the moral statements it purports to make. It is ironic that an anti-trust scholar such as Leslie displays less trust in the law than do many anti-racist/anti-colonial activists and scholars who work through legal reform.20 It also indicates that it is possible to engage legal reform more
strategically if one no longer trusts it. As Beth Richie notes, the anti-violence movements primary strategy for addressing gender violence was to articulate it as a crime.21 Because it is presumed that the best way to address a social ill is to call it a crime, this strategy is then deemed the correct moral
strategy. When this strategy backfires and does not end violence, and in many cases increases violence against women, it becomes difficult to argue against this strategy because it has been articulated in moral terms. If, however, we were to focus on legal reforms chosen for their strategic effects, it would be
easier to change the strategy should our calculus of its strategic effects suggest so. We would also be less complacent about the legal reforms we advocate as has happened with most of the laws that have been passed on gender violence. Advocates presume that because they helped pass a moral law, then
their job is done. If, however, the criteria for legal reforms are their strategic effects, we would then be continually monitoring the operation of these laws to see if they were having the desired effects. For instance, since the primary reason women do not leave battering relationships is because they do not
have another home to go, what if our legal strategies shifted from criminalising domestic violence to advocating affordable housing? While the shift from criminalisation may seem immoral, women are often removed from public housing under one strike laws in which they lose access to public housing if a
crime (including domestic violence) happens in their residence, whether or not they are the perpetrator. If our goal was actually to keep women safe, we might need to creatively rethink what legal reforms would actually increase safety. REVOLUTIONARY REFORMS As mentioned previously, there has been
insufficient evaluation of the strategic effects of legal strategies opposing gender violence. However, the work of Native anti-violence scholar and activist, Sarah Deer, points to possible new directions in engaging legal reform for the purpose of decolonisation. Deer notes that the issues of gender violence
cannot be separated from the project of decolonisation. For instance, currently, tribal governments are restricted to sentencing tribal members to three years in tribal prison for even major crimes such as rape. Much of the focus of the anti-violence movement has been on increasing the number of years tribal
governments can incarcerate members. Because of this effort, the Tribal Law and Order Act of 2010 increased the length of sentences from one to three years. However, Deer notes that prior to colonisation, violence against women was virtually unheard of, even though tribes did not have prisons.22 Instead,
tribes utilised a number of social mechanisms to ensure safety for women and children, and none of these mechanisms are prohibited by federal legislation. Because the federal government restricts the amount of prison time allowed for sexual offenders, tribes primarily call on the federal government to
expand tribes ability to incarcerate. However, as a variety of scholars have noted, expanded sentencing has not actually led to decreased violence.23 Thus, rather than focusing their attention simply on incarceration, Deer suggests that tribes look to pre-colonial measures for addressing violence and begin to
adapt those for contemporary circumstances.24 At the same time, Deer notes that it is not necessarily a simple process to adapt pre-colonial measures for addressing violence. Unfortunately, many of the alternatives to incarceration that are promoted under the restorative justice model have not developed
sufficient safety mechanisms for survivors of domestic/sexual violence. Restorative justice is an umbrella term that describes a wide range of programs that attempt to address crime from a restorative and reconciliatory rather than a punitive framework. As restorative justice frameworks involve all parties
(perpetrators, victims, and community members) in determining the appropriate response to a crime in an effort to restore the community to wholeness, restorative justice is opposed to the US criminal justice system, which focuses solely on punishing the perpetrator and removing him (or her) from society
through incarceration. These models are well developed in many Native communities, especially in Canada, where the legal status of Native nations allows an opportunity to develop community-based justice programs. In one program, for example, when a crime is reported, the working team that deals with
sexual/domestic violence talks to the perpetrator and gives him the option of participating in the program. The perpetrator must first confess his guilt and then follow a healing contract, or go to jail. The perpetrator is free to decline to participate in the program and go through the criminal justice system. In
the restorative justice model, everyone (victim, perpetrator, family, friends, and the working team) is involved in developing the healing contract. Everyone is also assigned an advocate through the process. Everyone is also responsible for holding the perpetrator accountable to his contract. One Tlingit man
noted that this approach was often more difficult than going to jail: First one must deal with the shock and then the dismay on your neighbors faces. One must live with the daily humiliation, and at the same time seek forgiveness not just from victims, but from the community as a whole []. [A prison
sentence] removes the offender from the daily accountability, and may not do anything towards rehabilitation, and for many may actually be an easier disposition than staying in the community.25 These models have greater potential for dealing with crime effectively because, if we want people who
perpetuate violence to live in society peaceably, it makes sense to develop justice models in which the community is involved in holding him/her accountable. Under the current incarceration model, perpetrators are taken away from their community and are further hindered from developing ethical
relationships within a community context. However, the problem with these models is that they work only when the community unites in holding perpetrators accountable. In cases of sexual and domestic violence, the community often sides with the perpetrator rather than the victim. As Deer argues, in many
Native communities, these models are often pushed on domestic violence survivors in order to pressure them to reconcile with their families and restore the community without sufficient concern for their personal safety.26 In addition, Native advocates have sometime critiqued the uncritical use of
traditional forms of governance for addressing domestic violence. They argue that Native communities have been pressured to adopt circle sentencing because it is supposed to be an indigenous traditional practice. However, some advocates contend that there is no such traditional practice in their
communities. Moreover, they are concerned that the process of diverting cases outside the court system can be dangerous for survivors. In one example, Bishop Hubert OConnor (a white man) was found guilty of multiple cases of sexual abuse but his punishment under the restorative justice model was to
participate in a healing circle with his victims. Because his crimes were against Aboriginal women, he was able to opt for an Aboriginal approach an approach, many argue, that did little to provide real healing for the survivors and accountability for the perpetrator. Deer complains that there is a tendency to
romanticise and homogenise traditional alternatives to incarceration. First, she notes traditional approaches might, in fact, be harsher than incarceration. Many Native people presume that traditional modes of justice focus on conflict resolution. In fact, Deer argues, penalties for societal infractions were not
lenient they entailed banishment, shaming, reparations, physical punishment and sometimes death. Deer notes that revising tribal codes by reincorporating traditional practices is not a simple process. It is sometimes difficult to determine what these practices were or how they could be made useful today.
For example, some practices, such as banishment, would not have the same impact today. Prior to colonisation, Native communities were so close-knit and interdependent that banishment was often the equivalent of a death sentence. Today, however, banished perpetrators could simply leave home and join
the dominant society. While tribes now have the opportunity to divest from the US colonial system, many Native women remain under violent attack. They may need to use the federal system until such time that more advanced decolonisation becomes possible. Thus Deer advocates a two-fold strategy: 1) The
short-term strategy of holding the federal government accountable for prosecuting rape cases; and 2) encouraging tribes to hold perpetrators accountable directly so that they will eventually not need to rely on federal interference. This approach can be misread as a simple formula for reform. However, it is
important to remember that the project of prison abolition is a positive rather than a negative project. The goal is not to tell survivors that they can never call the police or engage the criminal justice system. The question is not, should a survivor call the police? The question is: why have we given survivors no
other option but to call the police? Deer is suggesting that it is not inconsistent to reform federal justice systems while at the same time building tribal infrastructures for accountability that will eventually replace the federal system. If we focus simply on community accountability without a larger critique of
the state, we often fall back on framing community accountability as simply an add-on to the criminal justice system. Because anti-violence work has focused simply on advocacy, we have not developed strategies for due process, leaving that to the state. When our political imaginaries are captured by the
state, we can then presume that the state should be left to administer justice while communities will serve simply as a supplement to this regime. To do so, however, recapitulates the fundamental injustice of a settler state that is founded on slavery, genocide and the exploitation of immigrant labour.
Further, we are unable to imagine new visions for liberatory nationhood that are not structured on hierarchical logics, violence and domination. We face a dilemma: on the one hand, the incarceration approach for addressing sexual/domestic violence promotes the repression of communities of colour without
really providing safety for survivors. On the other hand, restorative justice models often promote community silence and denial under the rhetoric of community restoration without concern for the safety of survivors. Thus, our challenge is to develop community-based models that respond to gender violence
in ways that hold perpetrators accountable. Unfortunately, in this discussion advocates often assume only two possibilities: the criminal justice system or restorative justice. When anyone finds faults with the restorative justice model, it is assumed that the traditional criminal justice approach must be the
back-up strategy. Deers approach, by contrast, is to work with the criminal justice system while continuing to develop effective strategies for addressing violence. These will eventually eliminate the need to rely on the criminal justice system. Of course, the trap of pursuing reforms is that they can create
investment in the current US legal system and detract from building new systems of governance that are not based on violence, domination and control. At the same time, we are not going to go from where we are now to revolution tomorrow. Thus, it becomes important to strategise around what may be
called revolutionary reforms. Other abolitionists have argued that the only reforms that should be supported are those that diminish the criminal justice apparatus. Other abolitions have argued that this approach leaves people vulnerable to the crimes of the powerful, such as rape and domestic violence.27
It is in this context that we can understand Deers current projects. She has worked on building tribal infrastructure by encouraging and assisting tribes to develop tribal civil protection orders. Her strategy is not so much based on the rationale that civil protection orders will in themselves provide protection for
women. Rather, by developing these orders, tribes gain the practice of developing their own systems for addressing violence. Deer notes that this is one area that is not likely to be interfered with by the US federal government. At the same time, it is not an approach that is directly tied with investing tribes in
the project of incarceration. Thus, it becomes a reform that tribal communities may adopt now as they develop creative responses for addressing violence. The reason for this suggested reform is that many tribal governments incorrectly think that the federal government is already adequately addressing
gender violence and do not take initiative to address it themselves.28 In the end, the importance of Deers recommendation is not so much an investment in that particular strategy, but the manner in which it encourages us to think of short-term strategies that are not simply based on increased incarceration,
strategies that will more likely fall under the federal radar screen so that tribal communities have more time to practice new ways of supporting accountability for violence. This will encourage communities to develop better decolonial practices in the future. As Deer notes, a long-term vision for radical change
requires both immediate measures to address sexual violence and a forward-looking effort to dismantle the culture of rape that has infiltrated tribal nations.29 At the same time, many other Native activists are engaging community accountability strategies that do not work with the current system at all.
These strategies are not broadly advertised because these activists do not want to gain the attention of federal authorities. Yet, many communities have developed informal strategies for addressing authorities. For instance, one man who assaulted a relative was banished from his community. As he was
simply able to move to the city, tribal members would follow him to various work places, carrying signs that described him as a rapist. Again, this may be a strategy that we may or may not support. But the point is that it is important to engage the experimental and jazzy approaches for developing
Those who call for

decolonisation often do not effectively engage in any short-term reformist
strategy, even though they may save the lives of indigenous peoples who
are currently under immediate attack. As a result, the immediate needs of
people often get sacrificed in favour of articulating seemingly politicallypure ideals.
community-based accountability strategies.30 In his recent book X-Marks, Scott Lyons engages with Native activists and scholars who call for decolonisation as a central focus for organising.31
Conversely, those who do engage in short-term reform strategies often decry the goal of decolonisation as unrealistic. In doing so, they do not critique the manner in which these strategies often retrench rather than challenge the colonial status quo. Lyons
affirms the need for decolonisation, but notes that decolonization happens with pre-existing materials and institutions. He calls on Native peoples to think creatively about these institutions and about the ways in which they can be deployed not just for short-term gains but for a long-term vision of liberation.
BEYOND SHAMING THE SYSTEM Legal reformists who often focus on shaping the law to reflect their moral values and those who focus on extra-legal revolutionary strategies often share the same goal. Often the presumed radical strategy adopted by social justice groups is to engage in civil disobedience.
While these groups ostensibly break the law, they often do so in rather ceremonial fashion; they essentially want to shame the system. People are supposed to get arrested, and those in power are supposed to be so shamed by the fact that an unjust system required people to break the law. The expectation is
that they will then change the laws. Acts of civil disobedience often are not targeted toward changing a policy directly or building alternative systems to the current one. Many Native groups in the southwest US, however, have developed an alternative framework for extra-legal social change. Rather than
breaking the law to change the system, they propose to make Native communities ungovernable. For instance, during the passage of SB1070, Native groups with the Taala Hooghan Infoshop, Oodham Solidarity Across Borders, and others occupied the Border Patrol Office.32 However, rather than engaging in
the occupation with the expectation of getting arrested, they chained themselves to the building so that the office could not perform its work. This approach has continued with their efforts to stop the US governments desecration of the San Francisco Peaks through the construction of a ski resort. While they
have not eschewed legal strategies for stopping this desecration, they have focused on preventing tourists from visiting the area so that the ski resort will no longer be economically viable. According to their promotional material on TrueSnow.org: For the last decade defenders of the peaks have used every
legitimate way they could think of to try to stop the US Forest Service from allowing treated sewage effluent to be sprayed on the Peaks to make snow. More than 20,000 people took part in the Forest Service Environmental Impact Statement process with letters and appeals asking them not to spray treated
sewage effluent on the peaks to make snow. Thousands of us went to Flagstaff City Council meetings to voice our opposition to the sale of treated sewer water for the project. Yet still they approved it before even an environmental impact statement was done. They were the most clueless of all. Currently the
Hopi tribe is seeking lawsuit against the city because of this treated sewage effluent sale. A group of tribes and environmental and social justice organizations took a lawsuit all the way to the steps of the Supreme Court. The lawsuits have only called into question the legitimacy of what is loosely termed the
justice system. For it seems there is no justice in this system. It is just us, IN this system. There is also yet another lawsuit in play which I have termed Save the Peaks Coalition vs The Snowbowl Movement which may have the possibility of stopping this project in the long term. But if we wait for a verdict, all
the trees will be cut and the pipeline installed. This has not stopped the politically connected ski area from going ahead with their project right now and they have already clear-cut 100,000 trees (or more) and have already buried a few miles of pipeline along Snowbowl road. If they lose in court they would be
expected to repair the damages. How do you get back 400 year old trees? Greed and hatred seems to be Snowbowl's only motivation []. But isn't there some way to stop it? Well we could hit them where it hurts! In the pocketbook. If you live in the Fort Valley area of Flagstaff you must see by now how little
Arizona Snowbowl really cares about the economic benefits it brings our fair town. I know some of us had a good deal of trouble even going to work when the snow was good and Snowbowl was busy. The traffic jam was incredible. Stretching more than 15 miles. They took our livelihood away and hope to
make that a daily occurrence by having a predictable ski season using sewer water to make snow. This jam up gave us an idea! Why don't we do the same thing? Arizona Snowbowl does not own the mountain, and it is perfectly legal to drive up to the area for any permitted public lands use. This means
hiking, camping, praying, skiing, sitting, loving, mushroom hunting, etc. So what do I do? It is time to stop waiting for a government entity, an environmental group, or any of the people you have come to expect to save the peaks for us. The time has come to show them how much power the people have! And
believe me, you are the most powerful people in all of the world! You! Yep you! You can do it! All summer the Arizona Snowbowl is open Friday, Saturday, and Sunday for scenic skyrides, food, and alcohol. They do get a pretty good business up there and it would have an impact if the mountain was just too
busy with people doing all the other things our Public Forests are for. There is nothing illegal about it and it would send a clear message to the forest service that we don't need Snowbowl to recreate on the mountain. Heck, we don't even need a ski area up there to ski! In essence, take a vacation. Just do it
up on the peaks and don't use Snowbowl. Our government officials are forgetting what all power to the people really means. You cannot wait any longer for someone else to save the peaks for you. It will take of all us together to do this. So what are you waiting for? Pack a lunch this Saturday morning and
Converge on the Peaks!33 What these activists suggest is to divest our moral investment in the law. This will affect not only what legal reforms we may pursue, but what revolutionary strategies we might engage in. Rather than engaging in civil disobedience to force legislators to change laws to conform to
our moral principles, we might be free to engage creatively in strategies that build political and economic power directly. CONCLUSION In the debates prevalent within Native sovereignty and racial justice movements, we are often presented with two seemingly orthogonal positions long-term revolutionary
extra-legal movements or shortterm reformist legalist strategies. Short-term legal strategies are accused of investing activists within a white supremacist and settler colonial system that is incapable of significant change . Meanwhile, revolutionaries are accused of sacrificing the immediate needs of vulnerable
. Native womens lives are at stake

now they cannot wait for the revolution to achieve some sort of safety. At the same time, the short-term strategies often
populations for the sake of an endlessly deferred revolution. The reality of gender violence in Native communities highlights the untenability of these positions
adopted to address gender violence have often increased violence in Native womens lives by buttressing the prison industrial complex and its violent logics. While this reformist versus
revolutionary dichotomy suggests two radically different positions, in reality they share a common assumption: that the only way to pursue legal reform is to fight for laws that that
reinforce the appropriate moral statement (for instance, that the only way to address violence against Native women is through the law and to make this violence a crime). Because the
US legal system is inherently immoral and colonial, however, attempts to moralise the law generally fail. It is not surprising that the response to these failures is to simply give up on
pursuing legal strategies. However, the works of Derrick Bell, Christopher Leslie, and Sarah Deer, while working in completely different areas of the law, point to a different approach.
We can challenge the assumption that the law will reflect our morals and
instead seek to use the law for its strategic effects . In doing so, we might
advocate for laws that might in fact contradict some of our morals because we
recognize that the law cannot mirror our morals anyway. We might then be free
to engage in a relationship with the law which would free us to change our
strategies as we assess its strategic effects. At the same time, by divesting from the
morality of the law, we then will also simultaneously be free to invest in
building our own forms of community accountability and justice outside
the legal system. Our extra-legal strategies would go beyond ceremonial civil disobedience tactics designed to shame a system that is not capable of shame.
Rather, we might focus on actually building the political power to create an alternative system to the heteropatriarchal, white supremacist, settler colonial state.
The perm is the only ethical solution our excessive

responsibility to the Other compels us to risk using the law to
approach justice
3. The third proposition explicates three assertions: the law as force, the silence of this force, and the self-
Derrida remarks that the phrase to enforce the law or

enforceability of the law reminds us that law is always authorised force, a force
that justifies itself or is justified in applying itself (Derrida 1992b, 15). The auxiliary verb is in
the quote (law is always authorised force) is crucial: The relation is not one of law in the service
of force, as Derrida makes clear, nor of force in the service of law; it is rather that of
law as founding, justifying and preserving force (the force in, of and as law, simultaneously).
preserving quality of the silence.
It is for this reason that legality and legitimacy are interdependent: The law functions to legitimise itself, and
legitimacy is only meaningful in the context of, and necessarily presupposes, a system of laws. Law, in its instituting
and founding momentthe origin of authorityconsists of a performative and therefore interpretative violence
that is itself neither just nor unjust (Derrida 1992b, 13). Derrida sees this as its mystical foundation: the silence
in the violent structure of the founding act. The instituting violence of law defies the justice discourse, for it is
ungrounded violence, authority that rests upon itselfthe legality, hence legitimacy, of itself. One cannot ground
(legitimise) what is the very act of self-legitimating. This mystical silence, mystical in the sense that as silence it
nonetheless reiterates and propagates law, speaks the law over and over again, exists at the origin of law and its
conditions. So, and this is the beginning and very condition of justice and deconstruction, law is deconstructible,
either because it is founded, constructed on interpretable textual strata, or because its ultimate foundation is by
A deconstruction of law, Derrida explicates, does not aim

at an effacement of law before the ethico-politico-juridical question of justice;
instead, it positively renders justice possible by adopting an excessive and
incalculable responsibility to the question. This responsibility is that of
memory or recollection: a recollection of law as history, the origins and directions of
laws, rights and norms, the grounds of our conceptual, theoretical or normative
apparatus surrounding justice; hence, an understanding of the limits of law and
right and what is at stake (what is being asked of us, what justice demands) in speaking of the just
definition unfounded (Derrida 1992b, 14).
This responsibility, this purposive stance towards the

ethical, can only exist with the experience and experiment of the aporia (Derrida
and unjust (Derrida 1992b, 1920).
1992c, 41). The aporetic experience is necessarily experimental: Where knowledge precedes the path it is
illuminating, our actions are merely programmatic; one can act responsibly only because knowledge has not
To do justice, therefore, is to
test the aporetic experience of justice, that is, to assume a responsibility for it. To
heralded its arrival, because we are faced with an impasse that must be tested.
deconstruct the law is to take seriously the incestuous relation between law and justice, rather than to attempt to
Law and justice must be understood as

inexorably and nonsystematically linked: It turns out that droit claims to exercise
itself in the name of justice and that justice is required to establish itself in the
name of a law that must be enforced (Derrida 1992b, 22). Derrida provides us with some of the
aporias involved in this (dis-)juncture of law and justice. First, the exercise of justice presupposes
freedom to act and self-willed behaviour. So, the judge, who in judging is required to
follow a law or prescription, qualities inherent in the very definition of decision
(there is a sense in which every decision is necessarily legal, though in hierarchical conflict) is nonetheless
expected to create a fresh judgment: that is, he is [they are] expected to both
follow a law and confirm and reaffirm it by a free adoption, a reinstituting act of
interpretation that treats each case as idiomatic and not peremptorily decidable
justify the division and thus master the opposition.
(Derrida 1992b, 2223). A decision cannot be considered just if it unproblematically follows rules, nor if there is no
reference to particular rules or the prescience of general principles; the former amounts to mechanistic calculation,
whilst the latter amounts to suspending the decision, since it is confined to the judges interpretation. Paradoxically,
at no moment can we say in the present (Derrida emphasises these words) that a decision is just, only that it is
legal or legitimate, in conformity with a state of law, with the rules and conventions that authorise calculation but
If law cannot be exercised

without a decision (which necessarily cuts and divides), and if the decision is rightly
understood as the multiplicitous programme of learning, reading, understanding,
interpreting and calculating the rule, the decision to decide (to invoke the law in the
name of justice, and to risk a conclusion with inevitably legal and justiciable
consequences) must belong to the incalculable, the undecidable. Derrida understands
this undecidable as an experience heterogeneous and independent of calculation and the rule, whilst obliged
to take account of law and the rule in submitting itself to the impossible decision
(the just decision). The free decision, that which is not merely the application or unfolding of a calculable
whose founding origin only defers the problem of justice (Derrida 1992b, 23).
process, presupposes the ordeal of the undecidable (Derrida 1992b, 24). And so we have a second form of the
This ordeal of the undecidable lurks behind every decision , impelling itself as
the possibility of justice in the impossibly just decision. It is aptly represented as a ghost to
aporia:
reflect its double-binded relation to the present: As the spectre it exists only in the present, and yet in the present it
constitutes the memory of an experience that cannot fulfil itself, in the present. The just decision cannot derive
from the realised or unfolded calculation process, but it also cannot derive from the suspension of the undecidable,
since only a decision is just. The moment of the undecidable cannot be past or passedit exists, recurs, in
the present but only as the presentiment of its reality. It perpetually puts in doubt the achievement of the presently
just decision.
Institutional analysis key to deconstruction

Caputo 97 (John D., Thomas J. Watson Professor of Religion Emeritus at Syracuse
University, Deconstruction in a Nutshell: A Conversation with Jacques Derrida
(1997), Fordham University Press, pp. 61-62)
Deconstruction is an analytic operation aimed at keeping thinking and writing alive ,
keeping them open to surprise, by keeping on the alert to the institutions in which they are
housed. If language is the house of being, institutions are the house of language. That is why Derrida
describes deconstruction as "an institutional practice for which the concept of

institution remains a problem" (DP 88). Indeed, we are apt to be misled by speaking of "housing" as if
the institution were merely external. Deconstruction is integrally, and not merely passingly or incidentally, devoted
to an analysis of the way philosophy functions in an institutional setting, of philosophy and literature in the "institu
For institutional
structures tend to harden over and to protect philosophy from the restlessness and
anarchic freedom of writing in which philosophy is inscribed. Instead of protecting
phi losophy, institutions can easily end up protecting us from philosophy. It has
never been true that deconstruction consisted in some merely "internal" and
"apolitical" analysis of texts, isolated and insulated from the institutions in which these texts are read and
by which these read ings are monitored. For the institutional "context" belongs integrally
to the "general" text, the archi-textuality of which deconstruction is. the analysis. Institutions reach all
tion," as an institution or "establishment," as a socio-politico-juridico institutional structure.
the way down into the so-called internal structure of the text, making the very distinction between in ternal and
The classical idea that

institutions are merely external structures having nothing to do with philosophy
itself, in its internal essence, is a conservative illusion. Deconstruction has
always been a political and institutional analysis.
external questionable, turning the inside out and letting the outside in.
Legal reform is a crucial part of striving toward justice we

must deconstruct, then reconstruct the law
What are the implications of the economy of violence for the
notion of law reform, taken in its broadest sense (re-formation, re-institution of laws
or a legal system)? I wish to address this question in only a cursory way by merely raising the problematic
relation of justice and revolt. It should not surprise that at the heart of each of Derridas treatments
of law is the question of revolt. We may interpret his reading of Kafkas Before the Law as,
amongst other things, an attempt to conceptualise the impossibility of direct engagement
with law in its pure form as implicating the necessary task of challenging, revolting
against, its very presence. Similarly, we may consider Derridas dedication to Nelson Mandela as a
discussion of the stakes involved in bringing the premises of a political-legal system
into question, in an attempt to effect a transformation which seeks to efface its
foundations whilst aware of the inability to transcend the history of the existing and
former political-legal systems. More recently, we can read in Specters of Marx (Derrida 1994) an explicit
C. The Question of Revolt
desire to account for the legacy of Marxs philosophical revolution, seeing it as indispensable to any critique of
current political, legal and moral domains, particularly in light of the hegemonic presence of global-economic and
However, we should avoid the elementary conclusion that

revolt is the practice of justice. It is true that Derrida maintains a relation between justice and
neo-liberal discourses.
revolution, but this relation cannot be reduced to the dominant theory-praxis paradigm. It may be that the act of
revolt is, in certain circumstances, a condition for the exercise of justice, perhaps even a pre-condition; nonetheless,
Revolt exists within law, albeit at its limit, rather than

beyond it. In this sense, the revolution is never anarchic , if this term is understood in its
ideological connotations.2 One cannot overturn fundamental laws or overthrow a legal
system from without, not because one cannot be outside a legal system, but
because one cannot be outside the order of law ; at least, one cannot act (speak and
decide with social ramifications) from beyond legal order. We might say that revolt is at
they cannot be simplistically reconciled.
the end, not in a teleological sense but as a final act in a process of affirmation of
discontent, of a certain questioning of law. That is to say, revolt is the last point of this
questioning process, perhaps the final question itself. Revolution is neither the beginning nor
the end of counter-violence (whether or not this counter-violence is interpreted as Benjamins divine violence); it is
rather the possibility of an event which, as possibility, mediates the violence. And so, the act of revolt attacks the
violent structure of law as it surrenders itself to the violence and appropriates it for its own use. We are reminded of
a statement Foucault makes on the topic of revolt: that the man who revolts is outside as well as inside history
(Foucault 1981, 6). We can replace the word history in this proposition with the history of law as violence. Of
course, the importance for Foucault of the man of revolt existing inside and outside history is that revolt introduces
subjectivity into history: A delinquent puts his life into the balance against absurd punishments; a madman can no
longer accept confinement and the forfeiture of his rights; a people refuses the regime which oppresses it
(Foucault 1981, 8). The revolting person or people becomes a subject of history whilst suspending the history that
oppresses it. Although Derrida doesnt explicitly treat the issue of subjectivity, one can rethink the act of
deconstruction, in its concern with the adoption of responsibility towards history, as tracing the relation between a
subject and the presence of law within that subject, and thereby putting into question the justness of the subjects
law-making actions, and ultimately the institution of law in its subject-forming mode. The problematic of revolt is
Just as there is no pure justice, justice purified of juridical

and state (mythical) power, there is no pure revolution. This is not to deny the force
of revolt in challenging law and state; in fact, it is forceful precisely because it
cannot be divorced from its relation to the self-preserving violence of authority, and
so is able to strike at this authority with the latters weapons. If we accept, even
tentatively, Derridas aporias on justice, we must appreciate that to revolt is not to
re-make history but to understand the history of law that survives and is
revived in each act of revolution and reconstruction .
conterminous with that of justice.
Alt fails
Alt fails---the Surveillance State is inevitable---logical
successor to the Security State
in 2005, the New York Times reported that the Bush administration had ordered
the National Security Agency (NSA) to eavesdrop on telephone conversations by
persons in the United States in order to obtain information that might help combat terrorist attacks.1 The secret NSA
program operated outside of the restrictions on government surveillance imposed
by the 1978 Foreign Intelligence Surveillance Act (FlSA)2 and is thought to be only one of several such
programs. 3 In 2007, Congress temporarily amended FISA to increase the President's
power to listen in on conversations where at least one party is reasonably believed to be outside the United
States. 4 In June 2008, Congress passed a new set of amendments to FISA, which allow
the President to engage in a broad range of electronic surveillance without seeking
warrants against particular individual targets of surveillance.5 At the same time, Congress effectively
immunized telecommunications companies that had participated in the secret NSA
program. 6 In July 2007, New York City announced that it planned to mount thousands of cameras throughout Lower Manhattan
Late
to monitor vehicles and individuals. 7 Some cameras will be able to photograph and read license plates and send out alerts for
suspicious cars.8 The system of cameras will link to a series of pivoting gates installed at critical intersections, giving government
officials the ability to block off traffic through electronic commands. 9 New York's new plan-called the Lower Manhattan Security
Initiative-is based on London's "Ring of Steel," a security and surveillance system around London's central core that features
the Department of Homeland Security

has been quietly channeling millions of dollars to local governments around the
country to create hi-tech camera networks that can be linked with private
surveillance systems. 12 Security Initiative reflect a larger trend in how governments do their jobs that predates the
September 11, 2001 attacks and the Bush administration's declaration of a "war on terror."13 During the last part of
the twentieth century, the United States began developing a new form of
governance that features the collection, collation, and analysis of information about populations both in the United States and
around the world. This new form of governance is the National Surveillance State . In the National Surveillance
State, the government uses surveillance, data collection, collation, and analysis to
identify problems, to head off potential threats, to govern populations, and to
deliver valuable social services. The National Surveillance State is a special case of the
Information State-a state that tries to identify and solve problems of governance through the collection, collation, analysis,
and production of information. The war on terror may be the most familiar justification for the
rise of the National Surveillance State,14 but it is hardly the sole or even the most
important cause. Government's increasing use of surveillance and data mining is a
predictable result of accelerating developments in information technology. 15 As
thousands of surveillance cameras. 10 New York is hardly alone;11
technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and
The question is not whether we will have a surveillance

state in the years to come, but what sort of surveillance state we will have . Will we have a
private parties will seek to use them. 16
government without sufficient controls over public and private surveillance, or will we have a government that protects individual
dignity and conforms both public and private surveillance to the rule of law? The National Surveillance State is a way of governing. It
The National
Surveillance State is a permanent feature of governance, and will become as
ubiquitous in time as the familiar devices of the regulatory and welfare states . 17
Governments will use surveillance, data collection, and data mining technologies not
only to keep Americans safe from terrorist attacks but also to prevent ordinary crime and deliver social
is neither the product of emergency nor the product of war. War and emergency are temporary conditions.
services.' 8 In fact, even today, providing basic social services-like welfare benefits-and protecting key rights-like rights against
employment discrimination-are difficult, if not impossible, without extensive data collection and analysis. 19 Moreover, much of the
The increased
demand for-and the increased use of-public and private surveillance cannot be
explained or justified solely in terms of war or emergency . 21 The National
Surveillance State grows naturally out of the Welfare State and the National
Security State; it is their logical successor. The Welfare State governs domestic affairs by spending and
surveillance in the National Surveillance State will be conducted and analyzed by private parties. 20
transferring money and by creating government entitlements, licenses, and public works. 22 The National Security State 23
promotes foreign policy through investments in defense industries and defense-related technologies, through creating and
expanding national intelligence agencies like the CIA and the NSA, and through the placement of American military forces and
weapons systems around the globe to counter military threats and project national power.
Alt cant solve---technological and bureaucratic imperatives

make the Surveillance State inevitable
the most important developments in American constitutionalism is the gradual
transformation of the United States into a National Surveillance State . This National Surveillance
State is characterized by a significant increase in government investments in technology and government bureaucracies
devoted to promoting domestic security and (as its name implies) gathering intelligence and surveillance
using all of the devices that the digital revolution allows . Government agencies like the NSA can collect,
One of
collate, and analyze vast amounts of conversations, e-mails, and Internet traffic between individuals within the United States and foreign countries, and, it
technological developments
have made this data collection and data mining possible. High-speed computers, lower costs of
now appears, substantial amounts of such communications within the United States. 114 A series of
telecommunication and computer storage, and complex mathematical algorithms allow computers to "recognize" patterns in speech, telephone contact
Government officials can

combine all of this information with vast amounts of consumer data collected by the
government and the private sector. Various private companies now employ business models based on collecting, collating,
and analyzing consumer data from a wide variety of sources; they then sell this data and analysis to other private parties and to the government. The
National Surveillance State arose from a number of different features whose effects
are mutually reinforcing. The most obvious causes are changes in how nations conduct war and promote their national security. As
Philip Bobbitt has eloquently explained, the geopolitical demands of war and foreign policy often
provide the impetus for changes in domestic political arrangements, because the
way that the state faces the world outside is often reflected in the way that it faces
its citizens., 15 With the United States a likely target for future terrorist attacks, electronic surveillance, data mining, and the construction of what
information, e-mail messages, and Internet traffic that might indicate possible terrorist or criminal activity.
Daniel Solove has called "digital dossiers,"' 16 have become increasingly important. Terrorist organizations can form loosely connected, geographically
amorphous collectivities that present formidable threats to the United States; they can employ weapons of mass destruction or, as in the case of the
September 11 attacks, relatively low-tech weaponry with suicidal zeal. New digital communications technologies allow terrorist organizations to band and
disband at will, hide their identities, encrypt their communications, transfer funds and resources, and gather allies in many different places around the
world. Traditional, geographically organized adversaries in the form of nation-states have fixed locations that the United States can threaten in order to
deter attacks. Terrorist organizations, because they lack such fixed addresses, cannot be similarly deterred. They must be stopped as soon as their
This necessitates constant surveillance and processing of vast

amounts of information because of the expected costs of making even a single
mistake in failing to identify a threat. We caution, however, that the National Surveillance State
is not simply a product of the September 11 attacks . Nor is it necessarily a product of war. To
activities and plans can be identified.
begin with, it is by no means clear that the "War on Terror" is a war in the traditional sense. It is not even a long-term engagement with a small group of
what people now call the "War on Terror" is a sustained

set of interlocking strategies for dealing with new forms of global threats and new
technologies of attack by a host of different organizations, some sponsored by nation-states, and others
acting more or less on their own. 117 Equally important to the rise of the National Surveillance State
identifiable adversaries as in the Cold War. Rather,
are new technologies of surveillance, data storage, and computation that arrived on the scene in
the latter part of the twentieth century. These would have been produced whether or not the United
States was attacked on September 11, 2001. As soon as these technologies became
widely available, it was inevitable that governments would seek to employ them,
both to enjoy their advantages and to counter the dangers of the same tools in
private hands. In particular, the Internet and digital information technologies have created new opportunities for crime and new vulnerabilities
for the general public, for financial institutions, and for government itself. The digitally networked environment makes possible new types of crimes, like
breaches of electronic security and electronic identity theft, while facilitating more traditional crimes like embezzlement, theft, and conspiracy. The digital
age has altered the technologies of crime and, concomitantly, the way that the state can respond to crime. Focusing on war as the primary cause of the
National Surveillance State overlooks the fact that surveillance technologies that help the state track down terrorists can also be used to track and prevent
domestic crime. Once the state has these technologies in place for collecting foreign intelligence, it can use the same technologies to protect its people
from crime, attacks on the information infrastructure, and virtually any other domestic problem. After the state compiles data on its citizenry-or purchases
it from the private sector-it can use the information to promote a wide range of governmental policies, ranging from the delivery of health care services to
Increased use of
information in governance makes governments and those who control information
flows more powerful, which makes the information ever more valuable to
governments; this causes governments to invest even more heavily in the
collection, storage, and collation of data. These tendencies are spurred on by technological advances that increasingly
lower the cost of telecommunications, surveillance technology, data storage, and computation power. Thus, although the transition to
the National Surveillance State has been accelerated by the September 11 attacks
and the Bush Administration's proclaimed War on Terror, its rise is overdetermined
by a host of different technological and bureaucratic imperatives.
tracking down deadbeat dads and people who have failed to pay their license renewal fees and state property taxes.
Link Turn
Only reducing surveillance can reverse the tide of biopower
permeating status quo governmentality
(2009), pp. 32-42, Accessed 7/6/15)//LD
There are a few sections of the Patriot Act that are worth discussing in order to demonstrate the modern state of exception, as well as its link to surveillance and the camp. Under Section
412 of the Act, entitled Mandatory detention of suspected terrorists, the Attorney General has the power to certify that an alien meets the criteria of the terrorism grounds of the
Immigration and Nationality Act, or is engaged in any other activity that endangers the national security of the United States, upon a reasonable grounds to believe standard, and take
such aliens into custody. The Attorney General must review the detention every six months and determine if the alien is to remain in detention because of a continued risk to security.
what remains ambiguous, and allows for the indistinction between law and
violence and between police and sovereignty, is this reasonable grounds to believe
standard. Suffice it to say, without going into greater depth, this standard is grounds for racial profiling and the
detention of political opponents. Also, the detention of aliens on a belief is the production of
bare life, since it is the stripping of rights without reference to a violation under
normal law; in other words, these suspected terrorists are detained without having done anything wrong, but must be situated in the state of exception camp for those
who may threaten the normal force of the law this is the aforementioned void, or nonplace, of the law. Since these aliens cannot be detained under the normal law, a camp
of suspects must emerge in a national security emergency . What is also telling about this Act is that the
ten Titles may be seen as different governmental tactics , networked in one state of emergency act; Titles include,
But
Enhancing Domestic Security against Terrorism, Protecting the Border, Strengthening the Criminal Laws against Terrorism, and Increased Information Sharing for Critical
Foucault would be quick to point out that this Act characterizes the
population conducting tactics that define governmentality: policing, disciplining, and
security. However, Title II, Enhanced Surveillance Procedures, not only becomes implicit in many of the other areas of the act that discuss intelligence and
security, but also allows the Act to go beyond the protection of the norm in a sovereign
nation-state through foreign surveillance provisions . Section 214 functions in collaboration with and amends several parts of
Infrastructure Protection.
the Foreign Intelligence Service Act 1978 (FISA) in order to allow for international surveillance activities in order identify suspected terrorists: during periods of emergency (i.e. state of
exception), the US invests itself with the power to collect foreign intelligence information not concerning a United States person or information to protect against international terrorism
The detention and surveillance of aliens continues though

other mechanisms of jurisprudence, which, as mentioned, are becoming normalised
through bills, acts, etc. that are not designed as state of emergency law per se . On 13th
or clandestine intelligence activities (Sec. 214(b) (1)).
November 2001, George W. Bush issued a military order for the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; by certain this order means
suspected terrorists are to be

detained without a court order. Similarly, under the Terrorism Act 2000 in the UK, A constable may arrest without a warrant a person whom he
anyone believed to be associated with al Qaida (PoTUS, 2001). Like with Section 412 of the Patriot Act,
reasonably suspects to be a terrorist (Section 41(1)). As with the US, any person detained under this Act can remain in detainment following and pending a review (Schedule 8, Part II).
the Patriot Act and

the Terrorism Act contain various sections on increased surveillance measures that
target aliens and native citizens alike. These surveillance activities include the collection of DNA
from anyone detained for any offence or suspected of terrorism, phone taps,
wiretaps for electronic communications, the collection of individual library records
(Section 215; this Section in particular has received heavy criticism and debate), the collection of banking and financial records,
and other indirect surveillance methods, such as the collection of biometric data at
US borders (as Agamben experienced). However, these universal surveillance methods become much
more significant when we consider the proposed increased governmental powers
outlined in the Domestic Security Enhancement Act 2003 (alias, Patriot Act II). Under Section 501 of Patriot Act II the
mandatory dentition of aliens suspected of terrorism extends to include Americans, who can also be stripped of their citizenship
and made stateless detainees. As Gore Vidal remarks, under Patriot Act I only foreigners were denied due process of law as well as subject to
arbitrary deportationPatriot Act II now includes American citizens in the same category, thus
eliminating in one great erasure the Bill of Rights (Vidal 2003). Section 501, Expatriation of Terrorists, of the
The Disappearance of Citizenship4 What we have been discussing thus far applies to the indefinite and mandatory detention of aliens, but
Act states: This provision (i.e. Section 501) would amend 8 U.S.C. 1481 to make clear that, just as an American can relinquish his citizenship by serving in a hostile foreign army, so can
he relinquish his citizenship by serving in a hostile terrorist organization. Specifically, an American could be expatriated if, with the intent to relinquish nationality, he becomes a member
of, or provides material support to, a group that the United States has designated as a "terrorist organization," if that group is engaged in hostilities against the United States.
With
the power proposed in this section of the Patriot Act II, the government would be
able to produce bare life with both aliens and American citizens a process leading to the
disappearance of citizenship by transforming the residents into foreigners within, a new sort of untouchable [homo sacer], in the transpolitical and anational state where the living are
a permanent state of emergency creates a

situation in which foreign residents or visitors can be detained without a court order
for an indefinite period of time; even greater governmental powers are now aiming at
expanding this exposure to the pure power of the juridical-political system to
citizens as well. Citizenship and political significance are becoming less fundamental and
inalienable rights and more categorizations that are only maintained though blind
adherence to so-called democratic polices, which look more and more like a dictatorial structure (see: Arendt 1973).
nothing more than the living dead (Virilio 2005, 165). We have seen how
Surveillance is key to modern governmentality---curtailment

ruptures the state of exception
(2009), pp. 32-42, Accessed 7/6/15)//LD
Before we can even ask why a state uses surveillance mechanisms, we need to define what state structure we are
governmentality best describes our current political

situation, as it is above all concerned with managing the internal structure of the
state according to a biopoliticization of the population, rather than maintaining the power over
talking about. Following Foucault,
life and death, as is characteristic of sovereign politics. Governmentality is literally an art of governing, in which
the population is conducted through various relations and tactics employed by the state, such as institutions,
governmentality is the structure in which surveillance

can operate as one of the arms of state power. When we move towards the juridical-political
situation of the state of exception, we see another area in which surveillance plays a crucial biopolitical role. The
use of exceptional legal measures in order to protect the normal force of law is
what defines the state of exception. The normal law that is suspended is often that which guarantees
the rights and the citizenship of foreign and national citizens; thus, under an exceptional juridical
situation, individuals with no political significance are produced: bare life. The USA
Patriot Act (among other documents) embodies this loss of rights, production of
bare life, and increased surveillance based on a perceived national threat . The state of
security, statistics, and surveillance. So,
exception, Agamben argues, is becoming more and more the normal course of politics this is nowhere more
exemplary than in the camp. The camp is the place where bare life is produced and the exception becomes the rule.
Yet, the Roman camp in Judea shows us that the emersion of surveillance in a camp-state of exception- territory
What is primarily modern is not biopolitics (Foucault) or the camp (Agamben),

the governmental control of the disappearance of citizenship . With digital technology,
the erasure of a definite here or there means that the localised camp is no longer
a paradigmatic place where the limit of the state of exception is realised ; rather, the
structure is nothing new.
but
non-place of a population in constant movement is what defines the new non-place of the city camp. Thus,
surveillance is deeply imbedded in and necessary for the governmental

system that seeks to be instantly aware of any potential threats to the state so that
it can quash those threats by depoliticizing dangerous portions of the population
and exposing them to the pure potentiality of the management of life .
Surveillance allows management of life---reducing surveillance

closes the potentiality for universalization of bare life
(2009), pp. 32-42, Accessed 7/6/15)//LD
One particular Jewish work camp in the Judea Desert , occupied and run by the
Romans, was actually
one large watchtower
structure and two smaller structures downhill from the watchtower
a complex of pre-existing structures from the Hellenistic and Islamic periods. The site consists of
. The layout of this Hellenistic site functioned as
an ideal work camp quarry for the Romans, although it had originally been constructed as an Islamic burial ground and temporary shelter for travellers. A recent excavation of the camp (Yekutieli et al. 2006) revealed a number of
potsherds and heaths that were carbon-dated to the first and second century CE. Some of these remains were found along the slope of the tower, which contained a number of small (1x2m) rock shelters, while other remains were
What is
unique about this camp is the way in which the territory is manipulated in order to
allow for the surveillance of the workers. From the lookout crevice at the top of the
tower, one can see the entire landscape,
without being seen
by anyone in those locations
the architecture of the camp was designed so as to allow for a panoptic power
structure in which the Romans could achieve the subjectivization of the detainees
through their awareness of a potential observer
such surveillance structures have been recorded from as far back as the
Early Bronze Age
What distinguishes the Roman work camp from other ancient surveillance
mechanisms is the way in which is it integrated into, and in many ways the
precondition for, the political structure that creates the camp
the
state of emergency, in which normal law is suspended in order to use any means
necessary to protect the interest of the sovereign
this camp serves a paradigmatic example of
affects of surveillance, insofar as it is the amalgamation of the state of exception,
bare life, violence, law, biopolitics, territory, and governmentality
Governmentality is able to function
as the control of the population and the creation of bare life because it employs
surveillance as a crucial tactic in the management of life
The importance of a
juridical political system that acts according to the state of exception, or suspension
of the law, is evident in the emergence of recent totalitarian and democratic
permanent states of emergency
the
US have normalised the exception
through the passing of laws (Terrorism Act, Patriot Act, etc.) that essentially nullify
the application of normal laws protecting human rights, while still holding them
technically in force.
exceptional laws go hand in hand with increased
surveillance
Surveillance must be
regarded as the point at which the camp and the bare of the state of exception
intersect in the governmental control of the population.
discovered on the summit of the tower, which, through a crevice, looks down over the slope and the other structures; these findings reveal that people were living in the shelters as well as at the summit.
including the quarry, workers shelters, cooking areas, etc.,
. Further, the layout of the shelters on the slope allowed one to see no more than two other shelters at a time (ibid, 76). From these observations, we can
see that
. This type of structure, which allows for an unseen seer to watch over individuals occupying a given
territory, is nothing new in fact,
(3000-2650 BC) (ibid, 78-85). However, these earlier surveillance systems were used in order to guard a territory against an attack, as with the lookout towers constructed at the top of
castles.
. The encampment of rebellious Jews characterizes
. Thus, the Jews in the camp must be removed from the political realm and treated as bare life
that must be constantly monitored and exposed to the potentiality of violence. As we shall see,
; not to mention that evidence of surveillance and
camp structures that existed thousands of years ago demonstrates that none of these concepts are new and modern phenomena.
this is clearly presented in the Roman camp example.
However, although many of the concepts and techniques we see at work in the camp are not fundamentally different today, not everything has remained the same.
; for example,
UK and the
We see also that these
, both of which are tactics that establish control of the population. Yet what remains to be analysed is the relation(s) between surveillance, territory, and the state of exception how does
surveillance allow for the rise of the state of exception and the camp? And, more broadly, how are all there concepts integrated in an art of government?
Defining the Terms: Foucault and Agamben Although Michel Foucault wrote a
book (Discipline and Punish) that dealt extensively with one method of surveillance, the panoptic, his more useful contribution to the theory of surveillance comes from his study of governmentality, or the art of governing. In the
course of his 1970s lectures at the College de France, Foucault underwent a significant shift in the emphasis of his theory, moving from the powerterritory relationship of sovereignty to the politico-economic governmentality of
population; the concept of sovereignty concerned with maintaining power and territory is a dated pre-modern concept, and what needs to be analysed now is the governing of a population though various circulatory (that is,
what is
emerging in Foucaults writings, beginning with The History of Sexuality Vol 1, is the
concept of biopolitics: the management of life rather than the menace of death
relational) mechanisms: it is not expanse of land that contributes to the greatness of the state, but fertility and the number of men (Fleury quoted in Foucault 2007, 323). In other words,
(Foucault 1990, 143). Broadly, what is taking place in Foucaults works and lectures in the mid to late 1970s is his description of the differences (not transitions) between sovereignty, discipline, and governmental management
(Foucault 2007, 107).
The essential goal of sovereignty is to maintain power , which is achieved
when laws are obeyed and the divine right of the throne is reaffirmed
. Power is the essential defining
component of sovereignty, while government is more or less just an administrative component within the sovereign state a component that is the function of the family; the family, oikos, in ancient Greece was the private
management (government) of economic matters where the father ensured the security, health, wealth, and goods of his wife and children, while the polis was the public realm where man realised his political significance in striving
for the good life. The rise of government in the sixteenth century is marked by this family government model being applied to the state as a whole (ibid, 93), as well as by the rise of mercantilism - the former not realizing its
full scope and application until the eighteenth century and the latter being a stage of rasion dtat between sovereignty and governmentality. However, when the art of governing becomes the predominant goal of the state in the
eighteenth century, the family is relegated to the position of an instrument and population emerges as the main target (ibid, 108) of the government (territory is the main target of sovereignty insofar as a sovereign defines itself
according to its territory, while government defines itself in term of its population). With population as the central concern for government, other institutions and sites - such as territory, the family, security (military), police, and
discipline - all become elements or instruments in the management of the population these biopolitical tactics are what primarily distinguish governmentality from sovereignty. Conduct and Subjectivization Foucault wants to
Biopolitics is
produced in the relations between biological life and political power (bio-power),
which is possible when a population is confronted with and in relation to the
biopoliticizing
techniques of
surveillance
situate bio-power in the multiplicity of relations within the overarching structure of the state, and therefore not discard the notion of power but instead couch it in terms of governmentality.
(not to be confused with disciplining)
institutions, territory, police, security, and
; rather than positing a sovereign-people
dialectic (which Agamben tends to do), Foucault wants to complicate the notion of biopolitics by accounting for a state that spreads it tentacles (Virilio 1997, 12) through its various instruments and tactics. It seems as though, with
the beginning of a governmentality discourse developing in the Security, Territory, Population course, Foucault feels he has said enough about biopolitics as such and can now move towards the art and techniques of governmental
what emerges is
a theory of the top-down
management of a population that is controlled through governmental mechanisms
such as statistics-guided surveillance
and subjective conduct, in which biopolitics is implicit. Yet
, on the one hand,
and police practices, and, on the other hand, the bottom-up subjectivization of population through the regulation of actions
confronted with state power relations; this may also be regarded as biopolitical population control and individualizing discipline, respectively. These two streams of governmentality surface in Foucaults later writings from time to
time, but he never clearly reconciles the art of government and subjectivization. This subjective conduct or governing the self is a self-disciplining that is made possible through the knowledge of oneself as the other, as the object
of an unseen seer (as is discussed with the panoptic model in Discipline and Punish). This self-conduct, however, is framed in terms of the problematic of government that uses the power relation techniques of governing others to
we must look to surveillance to answer

this question
surveillance is certainly a governmental technique for the
management and control of the population
govern themselves (Foucault 2000, 340-342); but again, where do these two points converge and differ? It seems as though
. We know that
, but we also see that subjectivization is only possible via surveillance, as just mentioned with the panoptic model.
However, panoptic surveillance is an ancient notion, developed at least as far back as EBII, sometime around 3000-2650BC (Yekutieli 2006, 78). The relation between the seer and the subject is no longer that of a physical
perspective from a point fixe, nor is it localised in a contained space, as with Benthams prison model. Rather, as Paul Virilio would argue, surveillance is making the traditionally confined space of the camp the very centre of the city.
However, before examining the juridical-political applications of this notion, we must understand Giorgio Agambens conception of biopolitics in terms of bare life and the state of exception. Redefining Biopolitics Following and
Agamben seeks to further explore the relation between state

power and life
in terms of sovereign power
what affect(s) does
the state have upon the lives of citizens in relations of power and control?
completing Foucaults discussion of biopolitics,
, not in terms of governmentality, but rather,
. That is,
In a sense, Agambens
position is formulated in accordance with what Arendt and Foucault failed to do: Agamben completes Arendts discussion of totalitarian power, in which a biopolitical perspective is altogether lacking (Agamben 1998, 4), and
completes Foucaults discussion of biopolitics, which fails to address the most paradigmatic examples of modern biopolitics, such totalitarianism and the camp. This revision of Arendt and Foucault is achieved through the
exemplification of the state of exception and bare life, which find their ultimate realization in modern examples of the camp. But first, it is necessary to understand how Agamben arrives at this conclusion. In Politics, Aristotle
Zoe is private life confined to the home, oikos, while bios

is life that exists in the public (political) realm of the city, the polis
Zo and bios are mutually exclusive
distinguishes between natural, simple life1 , Zo, and political life, bios.
; the former is life regulated by the economy of
the family, while the latter is good life regulated by the state. It appears, then, that
, and man moves from an animal life to a
distinct political life, as Aristotle seems to argue. Foucault picks up on this Aristotelian animal/political life when he writes of the threshold of biological modernity (Foucault 1990, 143), in The History of Sexuality, and modifies it to
reflect the transition from a politics of the power-limit of death to the politicization of biological (or, more accurately, zoological i.e. Zo-logical) life: For millennia, man remained what he was for Aristotle: a living animal [Zo] with
what
were once two distinct forms of life are now indistinguishable biology has become
political and politics has become biological, giving rise to biopolitics
the additional capacity for a political existence [bios]; modern man is an animal whose politics places his existence as a living being in question (ibid). The distinction between Zo and bios is called into question;
. Agambens claim, however, is that Foucault,
Arendt, and others have misread Aristotle; in interpreting Aristotle, they believe that the human capacity for political organization is not only different from but stands in direct opposition to that natural association whose center is
the simultaneous inclusion and exclusion of life in

politics that is, the production of a biopolitcal life - is the original activity of
sovereign power
the home (oikia) and the family (Arendt 1998, 24, authors italics). On the contrary,
(Agamben 1998, 6). Although Aristotle appears to present zoe and bios as polar forms of life animal versus political he provides indications that the supposed exclusion of natural
life from the political realm is at the same time its inclusion, and therefore the originary biopolitical act: we may say that while [the polis] grows for the sake of mere life, it exists for the sake of a good life (Aristotle quoted in
Politics, Metaphysics, and Death, 3). This implies, as Agamben notes, that natural life had to transform itself into political life; political life is not in direct opposition to natural life, then, but is born of it. The very notion of bios is
itself only possible through its inclusion of zoe Nation-state means a state that makes nativity or birth (that is, naked human life) the foundation of its own sovereignty (Agamben 1998, 20); biopolitics is this indistinction between
private life and public life, an undecidabilitybetween life and law (Agamben 2005, 86). Bare Life and the State of Exception This conception of biopolitics as an ancient and founding notion of sovereignty needs to be distinguished
bare life is that

which is banished from the polis
Bare life is the
indistinguishability between natural life and political life a life that exists neither
for the sake of politics nor for the sake of life :
from what Agamben terms bare life or homo sacer (life that may be killed but not sacrificed). Biopolitical life, as mentioned above, is still within the juridical-political realm, but
. It is not pure political life as such, but a life that exists at the threshold between zoe and bios.
bare lifedwells in the no-mans-land between the home and the city (Agamben 1998, 90). It is a life
that is banished from politics outside of law but included in its exclusion still within the force of law: The ban is essentially the power of delivering something over to itself, which is to say, the power of maintaining itself in
relation to something presupposed as nonrelational [i.e. bare life]. What has been banned is delivered over to its own separateness and, at the same time, consigned to the mercy of the one who abandons it at once excluded and
included, removed and at the same time captured. (ibid, 110) How is this possible? How can bare life be excluded and included? What implications would this have? In order to understand how bare life is produced and how it can
exists both within and outside of the polis, it is necessary to introduce another concept: state of exception. This notion is derived, by in large, from Carl Schmitts book Political Theology, as well as from a fairly extensive debate
The state of exception is a suspension of law,

which is usually instituted during a period of war or another state of emergency:
Under the state
of exception there becomes a threshold between law that is in the norm but is
suspended and law that is not the norm
in the state of
exception there appears this ambiguous and uncertain zone in which de facto
proceedings, which are themselves extra- or antijuridical, pass over into law, and
juridical norms blur with the mere fact
the state of
exception opens up the possibility of bare life and of the camp, where bare
between Walter Benjamin and Schmitt concerning the nature of the state of exception.
The
exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like (Schmitt 1922, 6).
i.e. not necessarily part of the juridical order but is in force; so,
that is, a threshold where fact and law seem to become undecidable (Agamben 2005, 29). What needs to be underlined
here is the relation between the state of exception and bare life. This point is absolutely crucial for Agamben and for understanding the role of governmental surveillance:
life is outside law but constantly exposed to violence and unsanctionable killing
(Agamben 1994, 82). Agambens position can be understood in the triadic relation state of exception-camp-bare life; the ultimate power of the sovereign, and the complete dissolution of democracy into totalitarianism two political
systems that, according to Agamben, already have an inner solidarity (ibid, 10) happens at the point when the state of exception becomes the rule and the camp emerges as the permanent realization of the indistinguishability
between violence and law, to which we all, as homines sacri, are exposed. The paradigmatic example is, of course, Nazi Germany; but what remains to be seen is how this triad can be applied to our current political milieu. The
Potentiality of/for Violence Perhaps the closest Agamben comes to discussing the relations between the state of exception and surveillance is his 11th January 2004 article in Le Monde, entitled, No to Bio-Political Tattooing
(Agamben, 2004). This article comes as a result of Agambens cancellation of a course he was scheduled to teach at New York University that March. The reason he cancelled the course was because he was denied entry to the US as
modern
security and surveillance techniques are emerging as the new paradigm
of the state of exception, in which the exception has become the rule
no one is
unaware that the control exercised by the state through the usage of electronic
devices, such as credit cards or cell phones, h as reached previously unimaginable
levels
The biopolitical
implication of surveillance is the universalization of bare life :
These new control measures have created a
situation in which not only is there no clear distinction between private and political
life, but there is no fundamental claim, or right, to a political life as such not even
for citizens from birth; thus, the originary biopolitical act that inscribes life as
political from birth is more and more a potential depoliticization and ban from the
political realm
Making people suspects
is equivalent to making people bare life it is the governmental
production of a life exposed to the pure potentiality of the state of
exception
Surveillance is the technique that opens up this potentiality , which
allows for the normalization of the exception.
the
state of exception as a permanent form of governmentality and the
universalization of homines sacri has been brought into existence though the USA
Patriot Act2 and the Patriot Act II3.
it is the potentiality to be stripped of
citizenship, to be banned, to be abandoned to the law, and to be subjected to
political violence, or it is the potentiality for the government to exercise violence
and exceptional law upon the population
violence becomes
indistinguishable from
surveillance and control in the state of
exception, what needs to be emphasised is that it is not a power relation of pure
violence, but rather, of potential violence
violence is a
function of the power mechanisms of the government
violence, when not in the
hands of the law, threatens it not by the ends that it may pursue but by its mere
existence outside the law
The state of exception arises when the population
threatens to take violence away from the law the population
are
regulated by surveillance
for this norm to remain in
force an indefinite period of state of exception is often exercised, as we see with
the example of the USA Patriot Act
This politics of
potentiality is created through the de facto laws of state of exception legislation
like the Patriot Act
it exemplifies the state of emergency referred
to by Agamben et al.; the normal law of the state is not abolished but its
application is suspended
the exception is that which must produce and guarantee the
norm.
the state of exception is not intended to be anything more than a
a result of his refusal to provide biometric data as part of post-9/11 US security measures. The resulting article is mostly a brief, simplistic version of his book Homo Sacer, but Agamben does imply that
(though not to the extent of the
camp)
: There has been an attempt the
last few years to convince us to accept as the humane and normal dimensions of our existence, practices of control that had always been properly considered inhumane and exceptional. Thus,
. (Agamben 2004) Electronic and biometric surveillance are the tactics through which the government is creating a space in which the exception is routine practice.
History teaches us how practices first
reserved for foreigners find themselves applied later to the rest of the citizenry (ibid).
. We are all exposed to the stateless potentiality of a bare life excluded from the political realm, but not outside the violence of the law (and therefore still included): states, which should
constitute the precise space of political life, have made the person the ideal suspect, to the point that it's humanity itself that has become the dangerous class (ibid).
(a Foucauldian governmentality rather than an
Agambenian sovereignty I would argue)
: the sovereign ban, which applies to the exception in no longer applying, corresponds to the structure of potentiality, which maintains itself in relation to actuality precisely through its ability not to be
(Agamben 1994, 46).
In this particular instance i.e. biometric data collection and surveillance in the US
I have used the term potentiality a number of times precisely to point to the state in which the citizens (or, more broadly, the
population) of a number of countries find themselves. The potentiality I want to analyse can follow two directions:
. So, this potentiality can be both negative and positive. Although
law or, more specifically, indistinguishable from
. It is important, as Benjamin notes in Critique of Violence, to understand that
(although Benjamin would probably say sovereign): the laws interest in a
monopoly of violence vis--vis individuals is not explained by the intention of preserving legal ends but, rather, by that of preserving the law itself; that
(Benjamin 1933, 136).
(rather than individuals per se)
methods, in order to ensure that the norm of the law is not threatened; and
. The American State of Exception Surveillance and the External Threat
. Looking at actual parts of the Act, we can see that
so that it still technically remains in force (Agamben 2003, 31). As such, the suspension of the normal application of the law is done on the basis of its
right of self-preservation (Schmitt 1985, 12), so that

Obviously then
temporary safeguarding of normal law
. In fact, there can be no normal law without the state of exception: the state of exception allows for the foundation and
definition of the normal legal order (Agamben 1999, 48). The use of the state of emergency to protect the normality of the legal order dates back at least as far as the Roman Empire. Whenever the Senate believed the state to be in
danger, they could implement the iustitium, which allowed for the consuls to take whatever measures they considered necessary for the salvation of the state (Agamben 2005, 41).
AT: Law Bad
Law Good
Reforms are possible and desirable---tangible change
outweighs the risk of cooption and is still a better strategy
than the alt
Omi 13 (Michael, Berkeley ethnic studies professor, Resistance is futile?: a
response to Feagin and Elias, Ethnic and Racial Studies, 36.6, Taylor and Francis)
Feagin and Elias's account, white racist rule in the USA appears unalterable and permanent.
There is little sense that the white racial frame evoked by systemic racism theory
changes in significant ways over historical time. They dismiss important
rearrangements and reforms as merely a distraction from more ingrained
structural oppressions and deep lying inequalities that continue to define US
society (Feagin and Elias 2012, p. 21). Feagin and Elias use a concept they call surface flexibility to argue that
white elites frame racial realities in ways that suggest change, but are merely
engineered to reinforce the underlying structure of racial oppression. Feagin and Elias say
In
the phrase racial democracy is an oxymoron a word defined in the dictionary as a figure of speech that combines contradictory
If they mean the USA is a contradictory and incomplete democracy in respect to race
and racism issues, we agree. If they mean that people of colour have no democratic
rights or political power in the USA, we disagree. The USA is a racially despotic country in many
ways, but in our view it is also in many respects a racial democracy, capable of being influenced
towards more or less inclusive and redistributive economic policies, social policies, or for that matter, imperial
terms.
policies. What is distinctive about our own epoch in the USA (post-Second World War to the present) with respect to race and
racism? Over the past decades there has been a steady drumbeat of efforts to contain and neutralize civil rights, to restrict racial
democracy, and to maintain or even increase racial inequality. Racial disparities in different institutional sites employment, health,
education persist and in many cases have increased. Indeed, the post-2008 period has seen a dramatic increase in racial
inequality. The subprime home mortgage crisis, for example, was a major racial event. Black and brown people were
disproportionately affected by predatory lending practices; many lost their homes as a result; race-based wealth disparities widened
tremendously. It would be easy to conclude, as Feagin and Elias do, that white racial dominance has been continuous and
unchanging throughout US history. But such a perspective misses the dramatic twists and turns in racial politics that have occurred
Feagin and Elias claim that we overly inflate the significance of the
that we overlook the serious reversals of racial
justice and persistence of huge racial inequalities (Feagin and Elias 2012, p. 21) that followed in its
wake. We do not. In Racial Formation we wrote about racial reaction in a chapter of that name, and elsewhere in the book as
well. Feagin and Elias devote little attention to our arguments there; perhaps because they are in substantial
agreement with us. While we argue that the right wing was able to rearticulate race and racism issues to roll back
since the Second World War and the civil rights era.
changes wrought by the civil rights movement, and
some of the gains of the civil rights movement, we also believe that there are limits to what the right could achieve in the post-civil
rights political landscape. So we agree that the present prospects for racial justice are demoralizing at best. But we do not think that
US racial conditions have changed over the post-Second World War

period, in ways that Feagin and Elias tend to downplay or neglect. Some of the major reforms of the 1960s
have proved irreversible; they have set powerful democratic forces in motion . These
racial (trans)formations were the results of unprecedented political mobilizations, led
by the black movement, but not confined to blacks alone. Consider the desegregation
of the armed forces, as well as key civil rights movement victories of the 1960s: the Voting Rights Act, the
Immigration and Naturalization Act (Hart- Celler), as well as important court decisions like Loving v.
Virginia that declared anti-miscegenation laws unconstitutional . While we have the greatest
respect for the late Derrick Bell, we do not believe that his interest convergence hypothesis
effectively explains all these developments . How does Lyndon Johnson's famous (and possibly apocryphal)
is the whole story.
lament upon signing the Civil Rights Act on 2 July 1964 We have lost the South for a generation count as convergence? The US
hegemony proceeds through

the incorporation of opposition (Gramsci 1971, p. 182). The civil rights reforms can be seen
racial regime has been transformed in significant ways. As Antonio Gramsci argues,
as a classic example of this process; here the US racial regime under movement pressure was exercising its
hegemony. But Gramsci insists that such reforms which he calls passive revolutions cannot
be merely symbolic if they are to be effective: oppositions must win real
gains in the process . Once again, we are in the realm of politics, not absolute
rule. So yes, we think there were important if partial victories that shifted the racial state
and transformed the significance of race in everyday life . And yes, we think that further
victories can take place both on the broad terrain of the state and on the more
immediate level of social interaction: in daily interaction, in the human psyche and across civil
society. Indeed we have argued that in many ways the most important accomplishment of the anti-racist movement of the 1960s in
the politicization of the social. In the USA and indeed around the globe, race-based
movements demanded not only the inclusion of racially defined others and the
democratization of structurally racist societies, but also the recognition and
validation by both the state and civil society of racially-defined experience and
identity. These demands broadened and deepened democracy itself . They facilitated not only
the USA was
the democratic gains made in the USA by the black movement and its allies, but also the political advances towards equality, social
justice and inclusion accomplished by other new social movements: second-wave feminism, gay liberation, and the
By no means do we think that the post-war

movement upsurge was an unmitigated success . Far from it: all the new social movements were subject
environmentalist and anti-war movements among others.
to the same rearticulation (Laclau and Mouffe 2001, p. xii) that produced the racial ideology of colourblindness and its variants;
indeed all these movements confronted their mirror images in the mobilizations that arose from the political right to counter them.
Yet even their incorporation and containment, even their confrontations with the various backlash
phenomena of the past few decades, even the need to develop the highly contradictory
ideology of colourblindness, reveal the transformative character of the
politicization of the social. While it is not possible here to explore so extensive a subject, it is worth noting that it
was the long-delayed eruption of racial subjectivity and self-awareness into the mainstream
political arena that set off this transformation, shaping both the democratic and
anti-democratic social movements that are evident in US politics today .
Commitment to objective legal reasoning is the only way to

constrain violence any alternative paints the law as
indeterminate which justifies illegality
Ristroph 9 (Alice, Associate Professor of Law, Seton Hall University School of
Law, Is Law? Constitutional Crisis and Existential Anxiety, Constitutional
Commentary Vol. 25, 431-459.
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?
article=1457&context=facpub)
One reason to care whether
law
is in crisis concerns our own expectations of the function of law. A possible achievement is to
offer an alternative to violence
as we saw in
Levinson and Balkins account of the Constitution as enabling nonviolent dispute resolution.66 This might be called the anti-Thrasymachus view of law. Early in Platos Republic (before Socrates has tamed him), a young man called
law
distinguishes right from might it becomes important to say what law is,
and to show that it exists
many ongoing jurisprudential debates about the
criteria for a valid and functional system of law
are motivated by
worries about arbitrary power and violence To show Thrasymachus to be mistaken,
we want to show that the rule of law is really different from the rule of (the
strongest
Thrasymachus describes justice as the advantage of the stronger.67 The claim is that might makes right, and Western political and legal thought has produced many efforts to prove Thrasymachus and his heirs wrong. If
, then
. Hence,
(including worries about legal indeterminancy)
.68
) men. In legal theory, we could view John Austins positivism law as commands backed by threats of punishmentas a descendant of Thrasymachuss claim.69 Here, I want to examine briefly one of the
most influential, and most plausible, efforts to show that law is something more and different from the commands of a gunman: H. L. A. Harts response to Austin. Hart framed his discussion around the question, What is law?.70
But perhaps, as the Stoppard passage that opened this essay suggests, beginning with this question led us to conjure an image of law with various predicates that do not, as it turns out, include existence. A second form of existential
anxiety, one that I suspect shapes present talk of crisis, is the anxiety thast Thrasymachus and Austin were right and law, if it is anything more than command and force, does not exist. For my purposes here, the critical features of
Harts account are the rule of recognition and the internal point of view. Since, in most of The Concept of Law, Hart takes laws existence for granted, it is helpful to look at the passages where laws existence, or at least the existence
of a particular form of law, is up for grabs. In his classic discussion of the question, Is international law really law?, H. L. A. Hart deployed the concepts of a rule of recognition and the internal point of view to conclude that
international law was at most in a state of transition toward fully legal law, moving toward law properly so called but certainly not yet there.71 At the time he wrote The Concept of Law, Hart believed that international law departed
from domestic (or municipal) law in that it lacked a widely accepted rule of recognition and in that states could not be said to take the internal point of view toward international obligations. (Harts argument has been challenged
by many contemporary scholars of international law, but that particular dispute need not occupy us here.72) For law qua law to exist, Hart argued, there must be a rule of recognition under which the authoritative status of other
rules was accepted or denied, and the officials who would apply the rule of recognition must themselves take the internal point of view toward it. That is, the officials needed to view the rule of recognition as a binding, authoritative
guide to their own decisions. Suppose Hart was right and the rule of recognition and the internal point of view are conditions for the existence of law. Two questions arise: what is the rule of recognition for constitutional law, and who
must hold the internal standpoint toward that rule? The Constitution itself initially seems a candidate for the rule of recognition, though the fact that the Constitution must itself be interpreted leads some theorists to amend this
account and say that the rule of recognition must include authoritative statements of the meaning of the Constitution, under prevailing interpretive standards.73 As for the internal point of view, we might hope that all state officials
would take this point of view toward constitutional rules.74 In other words, we might hope that every state actor would comply with the U.S. Constitution because it is the Constitution, not simply to avoid injunctions, or judicial
invalidation of legislative action, or liability under 42 U.S.C. 1983. But Harts theory does not demand universal adherence to an internal point of view. Even if legislators and other public officials complied with First or Fourth or
Fourteenth Amendment doctrine only to avoid invalidation or 1983 liability even if these public officials were the equivalent of Holmess bad manHart might find that constitutional law still existed in a meaningful sense so long
as the judges applying constitutional rules believed themselves to be bound by a constitutional rule of recognition.75 Here is a possibility, one I believe we must take seriously and one that prompts anxiety about the existence of
constitutional law itself: there is no common rule of recognition toward which judges and other officials take an internal point of view.76 Individual judges may adhere to their particular understandings of the rule of recognition the
Constitution as interpreted by proper originalist methods, for example, or the Constitution as elucidated by popular understandings. But the fact that individual state actors follow their own rules of recognition in good faith does not
satisfy Harts account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is no reason, on the might-makes-right account, that the mighty cannot hold the good faith belief that they are pursuing a
common good or acting pursuant to rule-governed authority. What matters is that their power is in fact traceable to their superior strength.) There is reason for academic observers to doubt the existence of a single rule of
recognition in American constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is now widely accepted that constitutional rules are at least underdeterminatc. Should there be doubt about this
claim, consider this feature of constitutional law textbooks: they include majority and dissenting opinions, and questions after each case frequently ask the reader which opinion was more persuasive. Those questions are not posed
as rhetorical. For most constitutional decisions, we can say, it could have been otherwise. With a few votes switched, with a different line-up of Justices, the same precedents (and in some cases, the same interpretive methodology)
could have produced a different outcome. Moreover, these suspicions of indeterminancy or underdetermi-nancy are not the unique province of the academy. Think of the discussions of Supreme Court appointments in presidential
elections. Many voters, law professors or not, understand their vote for president to be also a vote for a certain kind of Justice and for certain kinds of constitutional outcomes. Discussions of Supreme Court appointments are often
framed in terms of judicial methodology I will appoint judges who are faithful to the text of the Constitution but that language may be more a matter of decorum than of real constitutional faith. Judges, of course, are not
ignorant of the charges of indeterminancy or of the politicization of judicial appointments. And it seems possible that the erosion of constitutional faith has reached the judiciary itself.771 claim no special insight into judicial
psychology, but it seems implausible that the reasons for constitutional skepticismthe discussions of underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention to swing justices such as
Sandra Day OConnor or Anthony Kennedyhave not influenced judges themselves. Here again it seems worthwhile to consider dissenting opinions. Justice Scalias polemics come to mind immediately; he has often accused his
colleagues of acting lawlessly.78 Yet he keeps his post and continues to participate in a system that treats as law the determinations of five (potentially lawless) Justices. It is possible, I suppose, that Justice Scalias dissents express
earnest outrage, that he is shocked (shocked) by decisions like Lawrence v. Texas79 and Boumediene. It is possible that he believes himself to be the last best hope of constitutional law properly so called. But it seems more likely
that he shares the skepticism of academic observers of the Court. Though one cant help but wonder whether judges are still constitutionally devout, I should emphasize here that my argument does not turn on a claim that judges
But it seems clear

that American judges do not all hold the internal point of view toward a single,
shared rule of recognition, given the nature of disagreements among judges
themselves If there are multiple rules of recognition, varying from judge to judge ,
then legal outcomes will depend on which judge is empowered to make the critical
decision, and Thrasymachus is not so far off the mark.
are acting in good or bad faith. Individual judges may well take the internal point of view, in Harts terms, and strive faithfully to apply the principles they recognize as law.
Contemporary judicial disagreement is profound, and it is not just a matter of
Justice Scalias flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting summary judgment (on the basis of qualified immunity) to a police officer who had rammed a passenger car during a high-speed chase,
causing an accident that left the driver a quadriplegic.80 Like most use-of-force opinions, the decision applies a deferential Fourth Amendment standard that gives police officers wide leeway. What is unusual about Harris is that,
because the case arose as a civil suit under 42 U.S.C. 1983, the critical question (whether the driver, Victor Harris, posed a sufficient threat to others bodily safety such that the use of deadly force was reasonable) was nominally a
jury question, and at summary judgment, the court should have taken the facts in the light most favorable to the non-moving partythe injured driver. Thus, in earlier use-of-force cases that reached the Court as 1983 claims, the
Court articulated the Fourth Amendment standard and then remanded the case to the trial court.81 But in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards of the police vehicles
involved.82 In the view of the eight-Justice majority, the videotape spoke for itself: it made Harriss threat to the public so clear that no reasonable juror could conclude that the officers use of force was unreasonable.83
Accordingly, the Supreme Court found the officer to be entitled to summary judgment.84 Doubtless there are many instances in which a court grants summary judgment to one party though non-judicial observers believe a
reasonable juror could find for the other party. Harris is of particular interest, though, because the reasonable juror who might have found in favor of Victor Harris was clearly visible to the majorityin fact, this juror had a
spokesman on the Court. Justice Stevens, the lone dissenter in Scott v. Harris, viewed the same videotape and found it to confirm the factual findings of the district court (which had denied the police offic-ers motion for summary
judgment).85 Though Justice Stevens was careful not to base his argument on an actual determination of the substantive Fourth Amendment question (chiding his colleagues for doing just that and thereby acting as jurors rather
than judges),86 he viewed the video evidence and explained how one might conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the eight Justices in the Harris majority to believe their own opinion,
they would have to conclude that Justice Stevens lived outside the realm of reason. Harris is nominally a dispute about what reasonable jurors could conclude, rather than a direct argument about the meaning of a particular
constitutional provision. But the two reactions to the videotape should call to mind Larry Tribes worry that American constitutional law is plagued by deep and thus far intractable divisions between wholly different ways of assessing
truth and experiencing reality.88 It is not just abortion and assisted suicide that reveal profound disagreement about what is true and real. A videotape that speaks for itself in the eyes of eight Justices says something entirely
different to the ninth. Looking beyond the judiciary, consider the consequences of constitutional disagreement and constitutional indeterminancy for other government officials and for would-be critics of those officials. Earlier I noted
with sufficient legal

indeterminancy, theres no such thing as illegality
Yoo wrote the O L
C memos that defend practices formerly known as torture, he was simply doing to
bans on torture what critics had long argued it was possible to do for any law : he
was trashing them This was the spawn of CLS put to work in the OLC;
deconstructions on the left are now deconstructions on the right .90
this may be the
Pyrrhic victory of critical legal studies: If the crits were correct, then there
is no distinctively legal form of critique. About torture, indefinite
detention, warrantless wiretapping, and so on, we can say I don't like it or
it doesnt correspond to my vision of the good, but we cannot say its
illegal. To argue that the Bush administration violated the rule of law, we need to
believe that the rule of law exists
that with sufficient constitutional indeterminancy, theres no such thing as an unconstitutional president. A more extreme version of this argument is that
. When John
ffice of
egal
ounsel
.89
And that, of course,
is cause for anxiety among those who would like to argue that George W. Bush or members of his administration acted illegally. As I suggested in the Introduction,
. But for 30 years or more, we have found reasons to doubt that it does.91 Perhaps it will seem that I am overstating the influence of legal
realism and critical legal studies, or the doubts about laws existence. Im willing to entertain those possibilities, but I do want to emphasize that the focus is on constitutional law. Its easy enough to believe in law when we see it
applied and enforced by figures of authority in a recognized hierarchy. That is, the sentencing judge or the prison warden can believe in lawhe has applied it himself. And the criminal should believe in law he has felt its force. But
these examples illustrate Austinian law: commands backed by force. What remains elusive, on my account, are laws that are truly laws given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this
brute force is a poor candidate to distinguish ordinary politics, or ordinary

legal decisions, from extraordinary moments of crisis.
each
successive generation must give the Constitution to itself: each generation
must adopt the internal point of view toward the Constitution in order for it to be
effective.
essay, I suggested that
What would be truly extraordinary is not the use of force, but its absence: a system
of law truly based on consent and independent of sanction. The Constitution, in theory, is a law given unto oneself. By this I mean not simply that the Founders gave the Constitution to future generations, but that
Even once we have accepted the written text as authoritative, all but the strictest constructionists acknowledge that many meanings can plausibly be extracted from that text. (And even the strict
constructionists must acknowledge that as a factual matter many meanings have been extracted; they deny only the plausibility of those varied readings.) Any law given unto oneself requires what Hart called the internal point of
we
have become too clever, too quick to notice indeterminancy, even too post-modern
to believe ourselves bound.
view, and what one more cynical might describe as self-delusion: it requires a belief that one is bound though one could at any minute walk away. It is possible, I think, that we have outwitted the Constitution: that
A third possible explanation for contemporary references to crisis is professional malaise. It could be, as I suggested earlier, that after too many years of
chewing what judges had for breakfast, professors have lost their appetites. It could be that the problems of originalists and historicists and popular constitutionalists dont amount to a hill of beans in this crazy world. And if these
possibilities have not crossed the law professors mind, they probably should. We might consider again Larry Tribes explanation of his decision to stop work on his treatise of American constitutional law. There are two questions of
meaning there, one of which Tribe confronts directly and the other which he brushes off quickly. Most obviously, there is the search for constitutional meaning, as Tribe acknowledges, a search that cannot be concluded within the
Constitutions own text. I see no escape from adopting some perspective... external to the constitution itself from which to decide questions not indisputably resolved one way or the other by the text and structure--------9* Tribe
goes on to wonder where these extra-constitutional criteria come from, and who ratified the meta-constitution that such external criteria would comprise?.94 Supreme Court Justices (and other judges) must struggle with these
questions, given the public authority that they have the enormous responsibility and privilege to wield.95 But Tribe need not. He can simply decline to finish the treatise. If he declines to finish the treatise, though, we cant help
asking ourselves what was at stake, and what remains at stake. If the law professor lacks the responsibility of a judge, is his constitutional theory just an amusing hobby? What was the point of the constitutional law treatise, or of
other efforts to discern coherent principles of constitutional law? The significance of a treatise is the question of meaning that Tribe brushes off quickly: he says a treatise is an attempt at a synthesis of some enduring value and
insists that his decision is not based on doubts about whether constitutional treatises arc ever worthwhile.96 But Tribes letter leaves the enduring value of a treatise rather underspecified, and it is possible that current references
Is constitutional theory good for absolutely

nothing? Only if we believe that the effort to resist Thrasymachus is futile or
pointless.
anxiety may be an important indication that we
have noticed the ways in which Thrasymachus seems right, and we still care enough
to try to prove him wrong
Stoppards play
Jumpers features a troupe of
professors
to constitutional crisis in the academy stem from uncertainty about such questions of value.
Constitutional theory is a species of legal and political theory, and the most intriguing forms of such theory are produced by worries that law and violence are too closely intertwined.97 Thus I suggested at
the outset of this essay that existential anxiety is not always to be regretted, cured, or mocked. Such
.98 After so much talk of crisis and anxiety, consider an illustration from the dramatic genre. Tom
philosophy
who double as acrobats: Logical positivists, mainly, with a linguistic analyst or two, a couple of Benthamite
utilitarians ... lapsed Kantians and empiricists generally... and of course the usual Behaviorists... a mixture of the more philosophical members of the university gymnastics team and the more gymnastic members of the Philosophy
The Jumpers
practice
post-modern nihilism One shoots and kills
another, then conceals the murder with cheerful aplomb
School.99
seem to
what we would now identify as
. Against these intellectually and physically adroit colleagues, the clumsy and
old-fashioned Professor George Moore struggles to defend the irreducible fact of goodness,100 the possibility of a moral conscience, and the claim that there is more in me than meets the microscope.101 Is God? Moore
wonders.
He can neither shake nor defend his faith.
Law schools, I think, are filled with moral sympathizers to Professor Moore who possess
the skills of modern-day Jumpers.102 The current discourse of crisis is the latest manifestation of an old struggle between faith and doubt, and it is not one that we will resolve. On one hand, we have observed too much to believe (in
we are determined to have law, even if we must make it ourselves.

it is not just crits that are
disappointed when they look for law and see nothing Few scholars of any stripe
want to vindicate Thrasymachus. All of this is just to reiterate the difficulty, and
perhaps the necessity, of giving a law unto oneself. If constitutional law did not
exist, it would be necessary to invent it.
law) unquestioningly. And on the other hand,
There was at least a smidgen of truth in John Finniss claim that scholars of critical legal studies were disappointed ... absolutists.103 But
Schlag Indict
Schlag is wrong about normativity his theory recreates the
norms it criticizes
Carlson 99 (David Gray, Professor of Law at the Cardozo School of Law, Yeshiva
University. Duellism in Modern American Jurisprudence (November 1999),
Columbia Law Review vol. 99, no. 7)
Pierre Schlag's most famous point is his imperative, "Don't be
normative." The values of the legal academy are little better than advertising purveyors--hypocrites who try "to
F. Law is Normative Perhaps
achieve strategic advantages largely (if not entirely) unrelated to the observance or realization of those professed
values."193 Values are used as totems or tools to induce guilt or shame.194 Stifling and narrow,195 normativity is
not even a thought--only an unthinking habit.196 Normativity argues that, if it does not hold sway, terrible social
consequences would follow.197 Normative thought is designed to shut down critical inquiry into the nothingness of
law.198 Not only are values deceitfully strategic, but they are ineffective.199 They are too vague to be selfdetermining.200 "Normative legal thought's only consumers are legal academics and perhaps a few law students-persons who are virtually never in a position to put any of its wonderful normative advice into effect."201 Judges
are not listening.202 Even if judges had the time to read and study all of academia's suggestions, they would be
unlikely to implement any which would require radical changes in the status quo, since, Schlag notes, "[o]nly those
kinds of norms that already conform to the audience's belief are likely to meet with any sort of wide-scale
approval."203 Thus, Schlag concedes, sometimes normativity is empirically effective after all--but not because of
intrinsic authenticity. Normativity is effective because it tracks and incorporates "folk-ontologies," such as order,
salvation, or progress.204 Like Antony, norms tell the people only what they already know. Norms and values are
lies, Schlag says, when proffered by legal academics, but it was otherwise with Sophocles205 or the Warren
court,206 who were authentically in touch with real pain. By implication, values are authentic when immediately
connected to feelings.207 Values, properly used, are worthy of commendation.208 But the mere invocation of
At first impression,
Schlag's imperative against normativity seems startlingly contradictory. Is it not a
norm that one should not be normative? If so, how is it that the norms of the legal
academy are lies, while Schlag's very meta-norm is legitimate? Schlag's view is not at
values does not guarantee their authenticity. The proof of values is in context.209
all contradictory within the context of romantic psychology. Norms and values are defined by Schlag as concepts
which are severed from what Schlag likes to call "context"--understood as nature, or the state that precedes the
introduction of legal distortion.210 In fact, norms and values are the same non-thing or non-sense as law. They are
the corruptions and mutilations that destroy context. They are castration itself.211 If, however, context could speak
directly, what it would say would not be a norm.212 When context says, "Don't be normative," then context is not
itself normative. Rather, context would be speaking a natural, wellgrounded, immediate truth?not a mere norm.213
This is, I think, what organizes Schlag's critique of norms. The norms offered by legal academics are inauthentic
because they are universals, standing apart from context. Schlag, Sophocles, and Chief Justice Earl Warren,
however, are in touch with context (through sensecertainty or immediate feeling), and what they speak is the
concrete truth, not a norm. In short, Schlag appeals to a natural law which is, while other legal academics appeal to
mere "ontological identities," which merely ought to be. This is precisely the claim of the romantic, who, "exempt
from public haunt, Finds tongues in trees, books in the running brooks, Sermons in stones, and good in every
thing."214 In the world of the romantic, things speak directly. Thus, when Schlag reports what natural context says,
no thought or "norm" enters to distort the message sent by nature itself. Schlag thus puts himself forth as what has
been called a "rational observer" of natural law215?a vanishing mediator, in Zizekian terms.216
Schlag
complains that positive lawyers are empty vessels. Thus, Dworkin's Hercules is said to be a
"vacuous fellow."217 Ironically, it turns out that Schlag himself is just as vacuous . In order
for context to speak, Schlag must erase himself and be the vanishing mediator
between nature (i.e., context) and legal audience. In short, Schlag, who vociferously
opposes the Kantian subject,218 puts himself forth as the perfect Kantian.219
Although Schlag accuses legal academics of being anti-intellectual, it appears as if
their thoughts and norms--intellectual products--are the very scalpels by which law
castrates the natural self. It is possible, then, to turn the charge around on Schlag
and accuse him of being the anti-intellectual . I will, however, let Hegel do the dirty work: Those
who speak philosophically of right, morality, and ethics and at the same time seek to exclude thought, appealing
instead to feeling . . . bear witness to the profound contempt into which thought and science have fallen; for in their
case, science itself, having sunk into despair and total lassitude, even adopts barbarism and thoughtlessness as its
principle and does everything it can to rob mankind of all truth, worth, and dignity.220
Schlags theory of the bureaucratic subject denies the

existence of personality
B. The Free Self Can Choose to Be Bound Schlag criticizes legal academics for unwitting indulgence in a
contradiction. The self is supposed to be sovereign. Yet the self bows down to the rule of law.244 The choice to be
bound is supposed to be a contradiction in terms.245 From what has been said, it should be clear that there is no
contradiction here. The self that stands against the natural world, and the animal inclinations that afflict its body, is
a negative entity. At heart, the subject is nothing at all.246 Yet, if it is to "exist," it must have externally observable
properties. It must do something, and the things it does be? come an attribute of the self. We are what we do.247
The subject that lawfully follows its passion achieves existence and so perpetuates itself.248 This is the positive
freedom of the self. Any self choosing to conform to the law has put forth its moral character in the world. It was the
free choice of the self to do this.249 Hence, the free self can choose to be bound, without contradiction.250 This
concrete subject is likewise free to violate the law and to perpetuate itself by crime. This is the negative freedom of
the concrete subject. It is not properly freedom at all, but slavery to inclination. Crime consti? tutes inclination
speaking in defiance of the moral side, thereby committing a crime on the subject's own self. The particularity of
tied into the very idea of following the

law is the idea of a free will that might choose not to follow the law. The free will
that aspires to follow the law never truly binds itself. A subject that puts itself forward as lawful
the criminal is therefore not freedom but slavery.251 In fact,
could give into impulse tomorrow and is therefore "free" (in the negative sense) to violate the law. Lawfulness is
therefore a constant struggle?the ongoing achievement of the concrete self. Furthermore, it is a struggle in which
the subject must fail: [F]reedom realizes itself through a series of failures: every par? ticular attempt to realize
freedom may fail; from its point of view, freedom remains an empty possibility; but the very continuous striving of
Freedom is thus "powerful." It exhibits

the "primacy of possibility over actuality."253 Forever potential, it is nevertheless a
possibility that transforms the world. In contrast to this view, Professor Schlag wants
to say that freedom means the concrete self can do what it feels like. But he should
know better than to exalt the authenticity of the pre-legal natural self, and he
has on occasion chastised others for doing just that.254 To exalt the sovereignty
of such a self (that may be in the thrall of criminal passion) instead of the liberal self is to permit the
contingent side of the self to govern in its moral arbitrariness .255 In other words, the
freedom to realize itself bears witness to its "actuality."252
essence of personality is the rationality of the liberal self. Negative freedom denies the essence of personality and
therefore ends up destroying its own self.256 To summarize, Schlag's work is based on a romantic psychology. If
only the concrete self were freed from law, Schlag implies, it would know what to do. Law offers mere "norms" and
Such a theory of the self ignores the fact that human

nature has two sides--the natural and the moral . One side cannot be privileged at
the expense of the other. To be sure, many of Schlag's criticisms of liberal psychology257 are well taken.
presents the subject with empty choices.
Liberal psychology absolutely denies a place for the unconscious and irrational. His accusation that liberal
philosophy does not consider the challenge of deconstruction to liberal psychology is an excellent contribution.
Liberal philosophy in recent times deserves criticism for not peering very deeply
into the soul of the legal subject.258 But liberal philosophy is also on to something:
The moral dimension of personality is constitutive and cannot be abolished without
destroying personality entirely.
Schlags paranoid construction of the bureaucracy creates

passivity and cynicism
Schlag presents a dark vision of what he calls "the bureaucracy,"
which crushes us and controls us. It operates on "a field of pain and death." 259 It
deprives us of choice, speech,260 and custom.261 As bureaucracy cannot abide great minds, legal
IV. The Bureaucracy
education must suppress greatness through mind numbing repetition.262 In fact, legal thought is the bureaucracy
and cannot be distinguished from it.263 If legal thought tried to buck the bureaucracy, the bureaucracy would
instantly crush it.264 Schlag observes that judges have taken "oaths that require subordination of truth,
understanding, and insight, to the preservation of certain bureaucratic governmental institutions and certain sacred
texts."265 Legal scholarship and lawyers generally266 are the craven tools of bureaucracy, and those who practice
law or scholarship simply serve to justify and strengthen the bureaucracy. "[I]f there were no discipline of American
law, the liberal state would have to invent it."267 "[L]egal thinkers in effect serve as a kind of P.R. firm for the
bureaucratic state."268 Legal scholarship has sold out to the bureaucracy: Insofar as the expressions of the state in
the form of [statutes, etc] can be expected to endure, so can the discipline that so helpfully organizes, rationalizes,
and represents these expressions as intelligent knowledge. As long as the discipline shows obeisance to the
authoritative legal forms, it enjoys the backing of the state. . . . [D]isciplinary knowledge of law can be true not
because it is true, but because the state makes it true.269 Scholarship produces a false "conflation between what
[academics] celebrate as 'law' and the ugly bureaucratic noise that grinds daily in the [ ] courts . . . ."27?
Scholarship "becomes the mode of discourse by which bureaucratic institutions and practices re-present
themselves as subject to the rational ethical-moral control of autonomous individuals."271 "The United States
Supreme Court and its academic groupies in the law schools have succeeded in doing what many, only a few
decades ago, would have thought impossible. They have succeeded in making Kafka look naive."272 Lacanian
Schlag's bureaucracy must

be seen as a "paranoid construction according to which our universe is the work of
art of unknown creators."273 In Schlag's view, the bureaucracy is in control of law
and language and uses it exclusively for its own purposes. The bureaucracy is therefore the
theory allows us to interpret the meaning of this anti-Masonic vision precisely.
Other of the Other, "a hidden subject who pulls the strings of the great Other (the symbolic order)."274 The
bureaucracy, in short, is the superego (i.e., absolute knowledge of the ego),275 but rendered visible and projected
outward. The superego, the ego's stern master, condemns the ego and condemns what it does. Schlag has
transferred this function to the bureaucracy. As is customary,276 by describing Schlag's vision as a paranoid
construction, I do not mean to suggest that Professor Schlag is mentally ill or unable to function. Paranoid
construction is not in fact the illness. It is an attempt at healing what the illness is?the conflation of the domains of
the symbolic, imaginary, and real.277 This conflation is what Lacan calls "psychosis." Whereas the "normal" subject
is split between the three domains, the psychotic is not. He is unable to keep the domains sepa? rate.278 The
symbolic domain of language begins to lose place to the real domain. The psychotic raves incoherently, and things
begin to talk to him directly.279 The psychotic, "immersed in jouissance,"280 loses desire itself. Paranoia is a
strategy the subject adopts to ward off breakdown. The paranoid vision holds together the symbolic order itself and
thereby prevents the subject from slipping into the psychotic state in which "the concrete T loses its absolute power
over the entire system of its determinations."281 This of course means--and here is the deep irony of paraonia--that
bureaucracy is the very savior of romantic metaphysics. If the romantic program were ever fulfilled--if the
bureaucracy were to fold up shop and let the natural side of the subject have its way--subjectivity would soon be
Paranoid ambivalence toward

bureaucracy (or whatever other fantasy may be substituted for it) is very commonly
observed. Most recently, conservatives "organized their enjoyment" by opposing
communism.283 By confronting and resisting an all-encompassing, sinister power,
the subject confirms his [their] existence as that which sees and resists the
power.284 As long as communism existed, conservatism could be perceived. When
communism disappeared, conservatives felt "anxiety" 285--a lack of purpose. Although
they publicly opposed communism, they secretly regretted its disappearance.
Within a short time, a new enemy was found to organize conservative jouissance-the cultural left. (On the left, a similar story could be told about the organizing
enveloped, smothered, and killed in the night of psychosis.282
function of racism and sexism, which, of course, have not yet disappeared.) These
humble examples show that the romantic yearning for wholeness is always
the opposite of what it appears to be.286 We paranoids need our enemies to organize our
enjoyment. Paranoid construction is, in the end, a philosophical interpretation, even in the clinical cases.287 As
Schlag has perceived, the symbolic order of law is artificial. It only exists because we insist it does. We all fear that
the house of cards may come crashing down. Paradoxically, it is this very "anxiety" that shores up the symbolic.
The normal person knows he [they] must keep insisting that the symbolic order
exists precisely because the person knows it is a fiction. 288 The paranoid, however,
assigns this role to the bureaucracy (and thereby absolves himself [themself]
from the responsibility). Thus, paranoid delusion allows for the maintenance of a
"cynical" distance between the paranoid subject and the realm of mad
psychosis.289 In truth, cynicism toward bureaucracy shows nothing but the
unconfronted depth to which the cynic is actually committed to what ought
to be abolished.
CLS Bad
CLS scholarship patronizes minorities and ignores the
necessity of legal reforms for the marginalized
The principal Minority Scholars participating in the dialogue are Mari Matsuda, Richard Delgado, Harlon Dalton,
Robert Wil- Iiams, Andrew Haines, and Kimberle Crenshaw,95 all of whom teach law at various schools across the
country. Similar to the CLS proponents, these scholars do not embody exclusively all minority scholars critiquing
CLS. Rather they stand out as representative spokespersons, some of whom vividly illustrate their critiques of the
The Minority Scholars are

virtually uniform in their assessment of CLS: they find all three major CLS themesthe indeterminacy argument, the rights discourse critique, and the CLS egalitarian
agenda-problematic. They note first, however, several positive aspects to CLS: specifically, the Movement's
Movement with intensely personal experiences concerning race and society.96
"descriptive"97 and "prescriptive power."98 Professor Matsuda writes that "[the] central descriptive message [of
CLS]-that legal ideals are manipulable and that law serves to legitimate existing mal distributions of wealth and
power-rings true for anyone who has experienced life in non-white America."99 The mechanism of trashing in
particular, one Minority Scholar writes, is irreverent and incisive enough to penetrate "the apocryphal legal texts ...
and myths," and various other reifications (ideology operating in statutory or common law form) that restrict
choices and dialogue. lOo As Professor Matsuda further observes, "[k]nowing when doctrine sticks, when it doesn't,
and why ... are major intellectual contributions of the CLS movement."101 Thus, both the Minority Scholars and CLS
recognize that political motives guide the use of legal rules that are premised upon normatively incorrect doctrine
to justify predetermined outcomes. The Minority Scholars find equally noteworthy the "prescriptive power" of
CLS.102 The quest for an egalitarian society without oppression, hierarchy, and maldistribution of wealth in a broad
sense presents an inspiring and attractive endeavor.103 This egalitarian ideal is quintessentially the vision of the
future held by many people of color and people of limited means. The origination of these descriptive and
prescriptive contributions within the prestigious and exclusionary walls of mainstream legal academia, where most
CLS scholars reside, lends legitimacy to ultra-leftist jurisprudence in general. Although reluctant to agree
substantively with CLS, the legal community must at least acknowledge the cogent critical theories put forth by
their academic peers. Arguably, this legitimacy would not exist if the CLS Movement originated from elsewhere in
the legal community, such as from practicing minority lawyers. In reference to the general legitimation of critical
scholarship, the Minority Scholars acknowledge that CLS has indeed even stimulated minority scholarship:
"[s]ignificantly, this [commitment to ultra-leftist jurisprudence] ... underscores the liberating impact that the CLS
analysis has had on the victims of racism, propelling them to explore its barriers."lo4 For the Minority Scholars,
the realization that the composition of CLS is predominately white and male
tempers the value of these descriptive and prescriptive contributions. 105 The absence
of a significant minority voice integrated in the Movement's theory signals the
unattractiveness of the CLS agenda. Vividly capturing this bittersweet realization, and introducing a
major criticism of CLS, one Minority Scholar writes, " Like a pack of super-termites, these scholars
eat away at the trees of legal doctrine and liberal ideals, leaving sawdust in their
paths. That they do it so well, and so single-mindedly, is compelling; it suggests that this is what the smartest are
doing. Never mind that no one knows what to do with all the sawdust. "i06 Despite CLS's
however,
presentation of insightful and critical social commentary and jurisprudence, substantively its three major themes
the Supreme
Court's recent rulings do illustrate the validity of the CLS idea that legal rules are
manipulable and legal outcomes are subject to the ideology and motivations of the politically powerful. 107
But CLS fails to address the possibility that racism is the motivation underlying legal
decisions which perpetuate oppressive social and institutional conditions. lOB Through
remain troubling to Minority Scholars. First, regarding the indeterminacy of law argument,
recognition of the non-objective, non-formalistic forces influencing legal outcomes (which CLS generally terms
"ideology"), CLS incidentally raises the possibilitya very real and intellectually compelling possibility for people of
the failure
of CLS scholarship to pinpoint and to integrate discussion of the problem of racism
color-that racism is one of the non-objective, non-formalistic forces. As the Minority Scholars assert,
as a principle reason for inconsistent and discriminatory decisions ignores the issue
over which most of the exploratory energies of minorities are spent. 109 In its very few
works discussing the issue of racism, CLS, because of its Marxist roots, attributes the
occurrence of discriminatory and status quo-perpetuating legal outcomes primarily
to classbased and economic-based discrimination. 110 Racism receives merely
tangential treatment as an incidental product of class and economic strife. In contrast
to the CLS view, the Minority Scholars assert that class-based and economic-based discrimination as suffered by
many minorities results from race-based discrimination, not vice versa. III The phenomenon of racism manifests
itself in a variety of contexts, including public housing, employment, and education and in many ways fuels the
process whereby some unfortunate citizens change in the eyes of society from people of color to people of limited
means. 1J2 The Minority Scholars posit cogent theoretical support for their belief that regardless of changes made
to the institutional structure of our society, racism will persist as a social-psychological phenomenon.113 It occurs
Accordingly, for these scholars,

any analysis of the role of law in society necessarily must consider the law not only
as a means for protecting against racism, but also as a means for perpetuating
racism. CLS runs afoul of minority interests by giving merely tangential
treatment to a problem that historically has threatened the stability of an entire
population of African-Americans. Second, the Minority Scholars find the CLS critique
of liberal rights discourse problematic. ll5 In short, CLS asserts that rights and rights
discourse legitimate unfair distributions of wealth and power by focusing on the
individual rather than the community, providing piecemeal reform, and limiting the
overall possibility of reform by circumscribing the boundaries of dialogue. 116 False
in both overt and covert forms and in both micro-and macro-legal contexts. 114
consciousness, the belief in the legitimacy of the existing system of liberal rights discourse, deludes minorities into
accepting and reconciling their deprived status. ll7 The Minority Scholars acknowledge the plausibility of this theory,
but assert that false consciousness is not the primary mechanism with which the majority culture stymies and
The Minority Scholars find troubling the idea that

"[through] absorption of self-defeating ideologies (rights discourse) ... " minorities
participate in their own oppression. 119 They argue that it "smacks" of the very paternalism
that CLS purports to disdain by suggesting that minorities are unable to comprehend
fully their own plight and discern who (the majority culture) and what (frequently
racism) propagates that plight. 120 Other forces, they argue, combine to paralyze
minority reformist efforts and to inject a sense of hopelessness into an already
daunting endeavor. Forces such as political and economic "coercion by the dominant group; exclusion from
clubs, networks, information, and needed help at crucial times; [and] microaggressions .... "121 CLS focuses
inappropriately on minority rather than majority culture. The Minority Scholars also
take issue with the rights discourse critique corollary which holds that faithfully
staying within the system and engaging in rights discourse results in inadequate
piecemeal reform (the patchwork quilt metaphor). 122 CLS argues that "[t]hose who control the
diffuses minority reformist activity.IIB
system weaken [infrasystem] resistance by pointing to the occasional concession to, or periodic court victory of, a
This corollary contradicts the

reality that incremental, within-the-system reforms have proven to be the
most successful reforms. Even the American Civil War, the passage of the Thirteenth,
Fourteenth and Fifteenth Amendments of the United States Constitution, the
passage of the Civil Rights Acts of the 19th Century, ... the civil rights
demonstrations, the urban revolutions of the 1960's, the passage of the Civil Rights
Acts of the 20th Century ... demonstrate that [minorities] benefit from glacial not
seismic changes in the operation of American law. 124 According to CLS, achieving
reform in the area of civil rights requires endlessly litigating narrow technical issues
at great cost to the plaintiff-endeavoring against the considerable inertia of the
status quo. For Minority Scholars, however, the reality of these victories awarding
Black plaintiff or worker as evidence that the system is fair and just."123
substantive rights squarely refutes the CLS arguments that conventional liberal
rights concepts and discourse are disutile for minorities. 125 Finally, the Minority Scholars
attribute the problematic aspects of CLS theory to the perceived elitist,121> negative,127 and informaP28
With respect to elitism and informality, the Minority Scholars

argue that the trashing of rights discourse is plausible for CLS scholars
because they reside in privileged positions in our society. These are
positions from which theoretically disposing of rights and creating an
informal community premised upon good will and sharing carries no threat
of harm. 129 Implicit in this criticism is the suspicion that CLS simply does not take itself or its proposed
agenda seriously. What is missing, Minority Scholars argue, is a measure of reality. 130
character of the Movement.
Turning to the issue of negativism, the Minority Scholars find that cynicism pervades the CLS Movement's writings
The process of deconstructing virtually all of society's accepted

institutional and jurisprudential norms involves considerable negative energy and
razes the foundations of a capitalistic and democratic society. Minority Scholars
believe this process inhibits the CLS Movement's ability to generate positive
enthusiasm for legal and social change. 132
and its agenda. 131
Critical legal scholars shoddy defense of the movement belies

disregard for minorities
B. Critical Legal Scholars' Responses to the Minority Scholar Critiques The CLS responses come principally from Alan
Significantly, only two of over one hundred Critical

Legal Scholars responded, despite considerable energies expended by the Minority
Scholars in engaging the Critical Legal Scholars in dialogue. This small number of
respondents begs the question: "How seriously does CLS, as a movement,
take the concerns of minorities?" Perhaps many of the Critical Legal Scholars considered the two
responses adequately representative of the CLS position. More likely, given that CLS members
typically do not retreat from an opportunity to express their views on a controversial
subject, most Critical Legal Scholars were simply not sufficiently aroused by the
subject of minority concerns to respond meaningfully. Moreover, the responses fail to
engage the Minority Scholars' critiques of CLS directly . Rather than give the
critiques systematic and comprehensive treatment (the manner in which they were presented),
the CLS responses evaded much of the substance presented by the Minority
Scholars, amounting to a general defense of CLS theory. The Critical Legal Scholars
defend the indeterminacy argument and the trashing of liberal rights theory, while
only subtextually incorporating the problem of racism in these defenses.
Freeman 133 and Morton Horowitz. 134
The CLS scholars also argue that they are experientially qualified to critique rights and rights discourse. Professor
Freeman in particular argues that their extensive involvement in the civil rights movement in the 1960s establishes
an intimate familiarity with the territory and texture of liberal rights discourse. He further argues that this intimate
familiarity creates a genuinely serious, and not just intellectually curious, interest in the minority agenda. 13s
CLS represents critique without responsibility entrenches

minority tokenization, fails to decolonize law
Dhanda and Parashar 12 (Amita, Professor of Law at Nalsar University of
Law, Hyderabad, and Archana, Associate Professor in Law at Macquarie University.
Decolonisation of Legal Knowledge (April 2012), Taylor & Francis)
Most CLS scholars are explicitly or indirectly left leaning, and the implications of
their critiques of law are that it falls short of being principled, general or predictable ,
among other things. It has been suggested that such critique seems to assume that these are
achievable, and more importantly, desirable goals for legal knowledge (Fish 1993: 16873). There is, however, another critique of CLS that they provide no alternative vision
for law.14 PM/PS critiques similarly deny the possibility of authoritative knowledge and thus of directed social
change. In this regard, CLS and PM/PS legal critiques seem to have similar focus on deconstructing legal concepts,
the issue for

us is whether this means that legal theorists may only 'deconstruct' an already
existing legal reality, be it (the) judgments, legislation, legal doctrine or analytical concepts. Duncan
doctrine and self images. This turn to semiotics is where a lot of contemporary legal theory is, but
Kennedy's work is an apt example of the CLS writing. In his book, A Critique of Adjudication: Fin de Siecle (1997), he
judges are denied the option of admitting the influence of ideological

and non-policy factors in reaching their decisions. He calls it the practice of 'denial' of their power
by the judges. The judges are in this way engaged in legitimating the status quo. The point
elab-orates how
of this meticulous deconstruction of judicial activity, however, is not so much to change the style of judicial
decisions and reasoning as to encourage the recognition of the control that decision-makers actually exercise.15
We accept that such recognition of the power of decision-makers is an important

step, but not enough in itself to change the practices under discussion . Peter Goodrich
takes issue with Kennedy and argues that he does no more than repeat the critique of reason, that is, examine the
judicial arguments for their persuasiveness and logic (Goodrich 2001: 989). He further criticises Kennedy for not
taking deconstruction seriously enough and argues that though the politics of writing is the subject matter of
grammatology, while Kennedy discusses deconstruction, he `neither places it in the context of grammatology nor
understands it as a Nietzschean exercise in philological disruption'(ibid.). However, even if Kennedy had done so,
deconstruction over-emphasises the importance of academic

readings of legal texts. This emphasis on semiotics allows these thinkers to
make no serious effort at exploring the alternative possibilities of what
adjudication could be. In fact, Stanley Ash's insistence that law is interpretation
seems to suggest that whichever 'interpretation' finds acceptance becomes the
'law' (see Fish 1993). In a nuanced argument, Fish suggests that the doctrine of formalism does not manage to
our concern remains that
obviate the necessity of interpretation. Moreover, which interpretation is acceptable is not decided by reference to
some universal moral principles, but is dependent on the rhetorical force of the argument. According to him, this
`rhetoricity' is not a bad thing at all because it invokes the conventions of legal interpretation. In other works he has
developed the argument that judges are not free to give any interpretation but are constrained by the conventions
of the judicial process as well as other legal institutions.16 That is, whether an inter-pretation will be accepted is
dependent on it conforming to the expect-ations of the relevant community rather than because it represents the
truth." However, feminists have, for a long time now, argued that com-munity standards so often invoked in law are
the problem for women and other disadvantaged sections of society.18 An understanding of judicial
pronouncements as representing conventional beliefs leaves no room for criticising them, or for ensuring that
'progressive' inter-pretations are more acceptable than other interpretations (West 1987: 278). This PM/PS
insistence on anti-foundational knowledge and against 'closure' implies that relativism can be the ally of
conservatism, although it need not be (Benhabib 1996). Have we made much pro-gress through enlightenment,
critical theory and PM/PS, if the point we are reaching is that knowledge can be constituted wisely or not wisely?
When critical theorists take the high moral ground that it is not possible to postulate the future shape of cultural
But if the implication of the critique is that one can

only describe what is happening, it becomes part of the problem . Moreover, it is
contrary to the idea that the function of theory is to destabilise power (see
Foucault and Deleuze 1977). Proceeding with this expectation that the function of theory is
practices, that may be so (see Spann 1984).
to destabilise power, it is possible to ask how far contemporary critical theory has
the potential to do that. We wish to emphasise the context of choice and the cultural con-notations of
making the 'right choice'. J.M. Balkin has addressed this very issue in his writings and has argued that one can be
just with deconstruction (1994).20 He says that deconstruction has to be understood as a rhetorical practice that
can be used for good or ill. Anyone engaging in deconstruction for a normative purpose chooses to say that there is
a better way of looking at things. To the extent that deconstructive arguments are forms of rhetoric, the ethics of
deconstruction also become very similar to the ethics of rhetoric. Both rhetoric and deconstruction can be used for
good and bad purposes, and to that extent, each of us becomes responsible for the ways in which we use
deconstruction. In this way, deconstruction can form part of the critical theory of law. Cotterrell reminds us that
even despite the fact that ideology and organisational interests are closely interrelated in a formalised, seemingly
closed legal system, it is nevertheless the case that the individual actors (for example, lawyers, judges, lay citizens)
think and communicate (Cotterrell 1995: 107-8). Zygmunt Bauman has made a similar argument, saying that
postmodern thinking takes away the certainty of universal ethics, but at the same time, it makes each individual
absolutely responsible for his or her choices and actions (1993). And it is this agency of the individual that must be
kept firmly in focus. The fad that ideas are thought and communicated by indi-viduals and some gain wider
acceptance than others means that knowledge is forever a matter of negotiation and persuasion. The indi-viduals
are, of course, not entirely free to decide how to act, what goals to pursue etc. They are constrained or at least
influenced by the prevailing systems of thought, discourse and societal structures. None of this is a new insight, but
our aim here is to refocus on the context for every situation and shift it away from reifying discourse. We hope to
thereby make critique accountable and the critics acknowledge their role in legitimising either the status quo or
contemporary critical theory has become

insular from the wider concerns of those who are at the margins of society , usually
without a voice, relegated to being the 'other' in short, the disadvantaged. The
markers of disadvantage vary, but include race, gender, age, ability and sexuality,
among other factors. All these bases of oppression have been analysed extensively,
but the advent of PM/PS legal analyses has created a peculiar situation . On the one hand,
it is on the insistence of PM/PS analyses that differences be recognised that legal
theory is called upon to be inclusive of those on the margins of society. At the same time,
the antipathy to 'closure' of definitions and analytical concepts also results in the valorisation of 'difference'. That
is, difference comes to be celebrated for its own sake , and it seems no longer
imperative to ask how the celebration of difference justifies relativism of the most
debilitating kind. For example, the cultural or ethnic differences maintained in the name
of pluralism can, and do, create problems for gender parity. 21 These reactionary
outcomes of PM/PS theory can be avoided if knowledge and responsibility
are coupled together. In legal scholarship the necessity of such a link between
knowledge and responsibility must be obvious: decolonisation of knowledge entails
asking what follows from conceptualising legal concepts in a certain manner or in
theorising law as irrelevant to the aims of social justice or non-oppression. For example,
change. This is an important task as we believe that
the violence of law analyses have shifted away the conventional focus from asking how law can regulate violence to
showing how the very existence of law itself is violence (Sarat 2001). This is a very pertinent challenge to the
However, the
critiques that merely challenge the mainstream understanding but do no more, end
up justifying the violence of law. For, the conclusion of such analyses that it could be
no other way, itself, becomes the legitimation of all contemporary inequities
perpetuated via law. We wish to challenge the determinism of this kind of analysis and to do that by
mainstream understanding of law as the guarantor of fairness, order and even justice.
invoking the PM/PS insight that all knowledge is con-stituted by discourse and practice. It is, therefore, imperative
that everyone carries the responsibility of being self-reflective about their role in creating and maintaining the
contemporary social structures. If they turn out to be oppressive for some, then we cannot absolve ourselves of
That is, critique must be re-sponsible critique,

otherwise it is a self-serving activity of intellectuals, who can presume
that they can do nothing to change the world (Calinicos 1989: 170).
responsibility for that either.
The critical legal studies movement is a bastion of whiteness

it talks about, rather than talking with, people of color
Haines 87 (Andrew W., Professor of Law, William Mitchell College of Law. The
Critical Legal Studies Movement and Racism: Useful Analytics and Guides for Social
Action or an Irrelevant Modern Legal Scepticism and Solipsism? (1987), William
Mitchell Law Review, vol. 13 no. 4)
Moreover, I note the influence of Freeman, Klare, and others in the CLSM on the analyses and writings of persons of
color. One discovers traces of the CLS analyses in the statements" I and writings" 12 of persons of color. No one
really knows how many other such influences have appeared and will appear. Significantly, this discussion
underscores the liberating impact that the CLS analyses have had on the victims of racism, propelling them to
I note the lingering

exclusionary character of the CLSM. Despite the obvious efforts of some within the
CLSM to encourage wider participation by persons of color, the movement remains
a largely ethnocentric, radical intellectual movement . Perhaps the genesis' 1 3 and the
constant reference 1 4 to this exclusionary beginning has some bearing on the reluctance 15
of persons of color to participate fully. Outsiders may interpret this emphasis as the unspoken
message about the exclusivity of this intellectual movement; they may see it as an ethnocentric
radical intellectual reification of the European radical intellectual tradition. Unwittingly,
the emphasis may result in a polarity between two important groups who
need each other, radical intellectuals and persons of color, with a fair
number of the latter wondering whether this movement merely signifies the selfabsorption in the other group's virtuosic intellectual displays to the exclusion of
truly grappling with the pressing social problems of persons of color. Perhaps other
reasons can explain the exclusionary character. Persons of color may find the ideas, the
methodology, and the conduct of the participants disincentives for participation.
Whatever the root causes, the CLSM maintains its exclusionary character; it continues to
talk to and not dialogue with (or talk about and not talk with) persons of color.
explore its barriers. Focusing on the limitations and negative dimensions,

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In conventional terms, normative legal

Both sides are caught up within their own

at its most brutal moment, law-preserving

system tries to erect, in all areas where individual

The undecidability of the origin of law, and its

the modern state protects my existence while bringing

Normative legal thought obscures the pain and death of

the value (if

Normative legal thought--this form of thought so

when legal thinkers re-cognize that normative legal thought is an economy

proliferation of a mode of discourse (normative legal thought) that is

normative legal thought, as Robert Cover explained,

What is missing in normative legal

normative legal thought is the pattern, is

In its rhetorical structure, it will continue to populate the legal

The alternative is to create spaces beyond the grasp of

Ethics is more than the application of moral and rational

to this quality an "advance legitimacy" that is intended to make its illegitimacy

Normative legal thought obscures the pain and death of

the value (if

Normative legal thought--this form of thought so

when legal thinkers re-cognize that normative legal thought is an economy

doesn't do much good to make normative arguments against history--especially not

normative legal thought, as Robert Cover explained,

What is missing in normative legal

normative legal thought is the pattern, is

In its rhetorical structure, it will continue to populate the legal

The alternative is to create spaces beyond the grasp of

Ethics is more than the application of moral and rational

If normative legal thought keeps

Normative legal thought,

it's really nice to think that we are all self-directing,

Their dismissive response is characteristic of disciplinary

Disciplines achieve security from

legal thought is overdoing

Normative legal thought doesn't seem overly concerned with such

Systemic critique is a better method than reactive surveillance

What is clear is that the corporate-security state provides an

the first task of resistance is to make dominant power clear by

What cannot be emphasized

Their prescriptive framework proves the link recreates

I think it would be unrealistic to

consider the scholarly exchanges

2NC---AT: CLS Bad

Critical Legal Scholars acknowledge the value of

rooting rights discourse in an ideal more

The role of racism in the perpetuation

the current economic status of many

badly needed for development, --many

no ecological balance can be ensured, unless the deep

the actual question is not about

Radical politics today must

2NC---Turns Case---Rights Affs

As statute law extended itself

Legal rights can only be secured through increased

the growth of legal rights which can be claimed

2NC---Satellite Neolib Impact

Activities such as occupations,

These arrangements have also

Neoliberalism guarantees extinction and social crisis

The ecological reality described is of ecological drawdown (deforestation, over-fishing,

warming of the earth would

although capitalism is capable of raising the