Genocide as Fact and Form

ABSTRACT

In June 2019 Canada's National Inquiry into Missing and Murdered Indigenous Women and Girls released its final report. This short Reflection focuses on the National Inquiry's supplementary legal analysis, which concerns the law of genocide. I contend that this analysis is correct in holding that the murder and disappearance of large numbers of Indigenous women, girls, and other persons ought to be understood as an ongoing crime facilitated by specific policy choices, legal decisions, and socio-economic structures. I also contend that the systemic, recurrent, and large-scale nature of this crime is best captured by the term “genocide.” I argue that formal legal definitions of “genocide” such as the one offered in the 1948 Genocide Convention, though conceptually clunky, historically contingent, and politically inadequate, are key to illuminating some of the structural forces underlying and animating a range of events that may otherwise appear unrelated. Genocide, the ultimate collectivist crime, is a concept of preponderantly legal origin, which means that serious consideration must be given to its specifically legal definition when trying to determine whether it is justifiable or appropriate to apply it to a given social phenomenon. Its standard legal definition may be unable to do justice to the specificities of different modes of group violence, but its abstract generality is also what enables those who employ it to highlight the intrinsically systemic character of such destruction. Ultimately, I suggest that Canada's genocide “debate” turns on the relation between “law” and “society”—the question, that is, of how precisely a legal definition is to be interpreted and applied under different, and often rapidly changing, social conditions.     

Interpreting Racial Formation and Multiculturalism in a High School: Towards a Constructive Deployment of Two Approaches to Critical Race Theory

Abstract: This article interprets the shortcomings of a multicultural strategy aimed at undoing processes of racial formation in a diverse high school (Kaleido High School). To interpret racial formation in Kaleido High School, we looked to critical race theory, but we found two approaches: one emphasizes identity as interpellated, and the other as multiple, fluid, and mutable. Both approaches explain observations from the field. Consistent with Foucault, we consider both interpretations of race as different discourses, each intelligible in context‐specific terms. Accordingly, we interweave these two approaches and empirics to indicate circumstances whereby each approach is sensible. We find that Foucault's “governmentality” helps reconcile what may otherwise appear as competing approaches. We conclude with a discussion of how a multicultural program might be instituted towards opening up spaces for transformational processes.     

Seventeenth-century legal fictions: the case of John Perry

This essay discusses the role of narrative in the transmission of legal “truth” in the early modern period, taking as its focus the John Perry murder case of 1660. Perry, a servant, confessed to and was convicted of the murder of his missing master, William Harrison, in the village of Campden in Gloucestershire. Two years after Perry’s execution, however, Harrison reappeared, offering in explanation of his absence a lurid and incredible account of his kidnap and transport to the slave markets of Turkey. In the Perry case complex and unstable narratives, with debts to a range of literary genres, served to obscure the central question of a missing body. This narrativisation of circumstance gained further momentum once the affair began to circulate in textual form, when, I will contend, it became not only a legal story but a way of telling stories about the law. In particular, the case raises questions of methodology: where can we, as scholars, locate truth within the ambiguities of law in this period, and is that truth really of value in our consideration of early modern legal and literary texts?     

“An alternative discourse”: Local interpreters of antiquities in the Ottoman Empire

Abstract

The premise of Ottoman indifference to “antiquities” was already widely assumed by early modern travelers and archaeologists and continues to inform contemporary discussion of cultural patrimony in post-Ottoman nations. However, it is contradicted by numerous accounts of local interpretations of ancient monuments and local resistance to the efforts of outsiders to remove antiquities. Local interpretations of monuments constituted an alternative discourse that cohered around a set of recurring concerns, while also developing over time. The potential of these local interpretations to expand the discourse of academic archaeology has been obscured by their classification as elements of a timeless folklore, which is understood to speak to the customs and manners of the interpreters, not to the objects of interpretation.     

Fire,Smoke, and Judah in Judges: A Response to Gregory Wong

Abstract

In a recent SJOT article, Gregory Wong set out to “[reexamine] the evidence for the alleged pro-Judah polemic in Judges.” His conclusion is that “even though the body of evidence commonly cited in support of a direct pro-Judah polemic [in Judges] seems impressive at first glance, a case-by-case examination seems to suggest that it is, unfortunately, a case of all smoke but no fire.” As a member of the rapidly growing group of scholars who believe otherwise, I would like, in my turn, to examine the arguments presented by Wong in support of this conclusion. I will demonstrate that although some of these arguments, mainly those having to do with Judah’s presentation in Judges 1, are valid and rightfully refute certain vulnerable interpretations, overall Wong’s case against seeing Judges as a profoundly pro-Judah text is extremely weak.     

When Torture is a Duty: The Murder of Imam Yapa Kaseng and the Challenge of Accountability in Thailand

Abstract

On 19 March 2008, Imam Yapa Kaseng was arrested in Narathiwat in southern Thailand and detained as a suspected insurgent by Special Task Force 39 under the provisions of martial law and the Emergency Decree on Public Administration in an Emergency Situation (hereafter Emergency Decree). Two days after his arrest, he died in the custody of the army. On 25 December 2008, the Narathiwat Provincial Court ruled that “the cause of death is that the deceased was physically assaulted by state officials … while he was in the custody of soldiers who were performing their civil service duties”. This ruling is paradoxical: Thai state officials are named as responsible for a death in custody, yet torture is categorised as a “duty”. Since the ruling, Imam Yapa’s family has pursued criminal, civil and internal state methods of redress, but the case has been stalled and the responsible state officials have not been held accountable. In response, I challenge this paradox by reading the inquest decision in light of both relevant national and international legal instruments and the testimonies given during the hearings. Drawing on the testimonies given during the inquest hearings, I construct an alternative narrative of suffering and state accountability.     

Material,Political, and Biopolitical Dimensions of “Waste” in California Water Law

California's state constitution prohibits the “wasteful” use of water; however, waste is subjective and context dependent. This paper considers political, biopolitical, and material dimensions of waste, focusing on the role of legal processes and institutions. The paper examines a case involving legal accusations of “waste and unreasonable use” of water by the Imperial Irrigation District in Imperial County, California. The determination that water was being “wasted” justified the transfer of water from agricultural to urban areas. However, defining these flows of water as a waste neglected water's complexity and relationality, and the enclosure of a “paracommons” threatens to bring about negative environmental and public health consequences. The paper shows that the project of discursively labeling certain material resource flows as waste and re‐allocating these resources to correct this moral and economic failure relies upon legal processes, and carries political and biopolitical implications.     

The Latest Instalment in the Whig Interpretation of Australian Education History: Catherine Byrne's JORH Article “Free,Compulsory and (not) Secular”

The original meaning of the term “secular” in the “free compulsory and secular” nineteenth‐century Australian public education acts is often contested, and has recently become part of a contemporary debate about the presence of confessional religion in state schools. I outline four different interpretations expressed in Australian education history writing, then review the recent Journal of Religious History article “Free, Compulsory and (not) Secular” by Catherine Byrne, arguing that it belongs to the secular liberal or “Whig” interpretation of the meaning of “secular” in the acts. The article is critiqued for forcing sources to conform to an overly rhetorical narrative device: a polarised structure valorising Victorian legislator George Higinbotham, and demonising New South Wales legislator Sir Henry Parkes. The article is also criticised for sub‐optimal source‐work, lack of awareness of the corpus of Australian education history, and overt contemporary policy agendas. I also suggest that the larger “Whig” interpretation of “secular” as part of a liberal progress narrative, underemphasises a religious hermeneutic and a critical theory hermeneutic: that a Protestant consensus about state schooling and “secular” in the Public Education Acts was also a deeply sectarian device for excluding Catholics from a dominant social settlement, just one part of a systemically divided and prejudicial culture.     

Mens rea,the Achilles’ Heel of Criminal Law

Abstract

The evolution of criminal law in Western legal systems is often portrayed as a path leading from objective to subjective notions of criminal responsibility. By examining the historical development of the notions of subjective responsibility, this article suggests that the function of a wrongdoer’s subjective mental state, in both its substantive and procedural aspect, as an element in the process of attributing criminal responsibility, remains much the same today as it was in antiquity. This is indicated by what subjectivity, as an essential condition of culpability (actus non facit reum nisi mens sit rea), is said to imply: the distinction between intentional and unintentional acts. Although the notions of intent and malice aforethought are attested to in various sources on ancient Athenian law, there are several kinds of cases in which the role played by these aspects—traditionally referred to as mens rea (“guilty mind”)—remain unsolved in contemporary jurisprudence and legal practice. Yet despite the difficulties of establishing facts in particularly complex criminal cases, setting the boundary between “intentional” and “unintentional” remains crucially important in determining criminal responsibility and thus in distinguishing the “licit” from the “illicit,” which is the very foundation of the rule of law.     

Competing Visions of the Rule of Law in Southeast Asia: Power,Rhetoric and Governance

Abstract

This article introduces a special issue on the emergent relationship between the rhetoric and implementation of the rule of law concept in Southeast Asia. It thematically introduces four country case studies (Cambodia, Myanmar, Thailand and Vietnam), and the case of ASEAN’s adoption of the rule of law in region-building, which are included in this special issue. We highlight how ideals that are arguably central to the “tradition” of the rule of law are being excised, marginalised, defended and/or undermined in Southeast Asian contexts. We emphasise how the very concept is deeply contested and far from neutral – at stake is the very notion of “law” for whom, and for what. The article offers insight into the social dynamics affecting how the rule of law is being interpreted by political actors and how it is being contested and consolidated via governance practices in the region, and proposes new avenues for research in assessing how the rule of law is operating in transitional and authoritarian state settings.     

Imperial modernity,national identity and capital punishment in the Samarcand Arson Case, 1931

ABSTRACT. This article draws upon the fascinating and little known 1931 Samarcand Arson Case involving the possible execution of adolescent white female inmates at a juvenile reformatory in North Carolina. Marked by nationalist discourses, the spectacle generated by this case indicates much about how white New South advocates construed national life and sought to construct a white ‘civilised’ collective identity, defending their region from Northern charges of Southern barbarism and asserting their place within the imperial politics of American nation building. The decision not to execute any of the sixteen defendants was informed by a series of interconnected ideas about sexuality, national danger, ‘civilisation’ and ‘race,’ suggesting that the presumed ‘legal chivalry’ extended to the young defendants was not a simple matter of gender bias, but involved a nuanced set of reasons related to negotiations of national belonging through racialised alliances.     

Tocqueville on Pantheism,Materialism, and Catholicism

Abstract

It is widely acknowledged that Leo Strauss was an extraordinary scholar and teacher who strove to open up forgotten vistas of philosophical inquiry. Gigantic controversy rages, however, about the sorts of political and social changes, if any, that he hoped to promote. The fire has been fueled by the alleged contributions of Straussians to the Iraq War—and by the publication of Strauss's 1933 letter that commended “fascist, authoritarian, and imperial” principles. This article reviews and then updates the assessments proffered in my 2009 book (Straussophobia) about the state of the “Strauss Wars.” Critics such as Shadia Drury continue to embarrass themselves in prestigious venues, but newer voices are using innovative strategies to argue that Strauss was attempting to undermine the principles of American democracy. Whereas William Altman relies on “esoteric interpretations” of Strauss's writings, Alan Gilbert illuminates Strauss's behind-the-scenes efforts regarding policy disputes. Although I maintain that Gilbert and especially Altman have made invaluable contributions, I argue that they both overreach.     

“Genocide is Fascism in Action”: Aron Trainin and Soviet Portrayals of Genocide

ABSTRACT

This article examines the Soviet legal scholar Aron Trainin’s evolving writings on international law. Initially, Trainin formulated aspects of his concept of “crimes against peace” as a sort of Soviet alternative to Raphael Lemkin’s crimes of barbarity and vandalism. Crimes against peace both converged with the larger international movement to outlaw aggressive war, provided a Soviet alternative to proposed international crimes that they believed would threaten Soviet sovereignty, and provided a Soviet response to Lemkin’s proposals to outlaw mass killings. During World War II, Trainin articulated the Nazi extermination of the Jews as “crimes against peaceful civilians,” linking the Nazi atrocities to his concept of crimes against peace. Trainin’s concept of “crimes against peaceful civilians” encompassed the atrocities of the Holocaust while also asserting that the Soviet experience of the war – most notably Soviet sacrifice and suffering – meant that the Soviets should determine how international criminal law punished the war’s perpetrators. After World War II, when it became clear that genocide, rather than “crimes against peace” or “crimes against peaceful civilians,” was becoming the primary concept in international law to understand mass killings, Trainin portrayed the concept of genocide according to the perspective of Soviet propaganda, opposing an international criminal court for genocide, supporting the concept of cultural genocide, and portraying genocide as an inevitable outcome of capitalism. At the same time, Trainin and the Soviets never abandoned his concept of “crimes against peace,” portraying capitalism as inherently bound up with war and genocide. Trainin was the most significant genocide scholar in the Soviet Union, and his work exemplifies both the ways in which Soviet approaches to international law converged with other approaches, and the ways in which the Soviet Union diverged from non-Soviet international law.     

Middle Bronze Age Ramparts: Functional and Symbolic Structures

Abstract

The Middle Bronze Age is a period of urban rebirth, with one of its hallmarks being massive earthworks surrounding cities. These structures have been studied extensively, with traditional interpretations of their function revolving around defensive aspects. However several scholars have called into question the validity of these interpretations, offering alternative explanations revolving around more “social” reasons. The present paper suggests that while the structures were constructed for protecting the city and its inhabitants, this only strengthens its “social” symbolism. Of major importance to its symbolism is the effect the ramparts had on the landscape, altering it permanently, and giving an impression of controlling the landscape.     

Music geography in Russia: non-auratic places and institutionalization “in becoming”

ABSTRACT

This paper focuses on the Tsoi Wall in Moscow, an iconic place on Russia's music map that appeared in Moscow in 1990 in memory of the cult Soviet rock musician Viktor Tsoi, to develop a framework for studying non-auratic music place – that is, places that are not connected with the biographies of musicians or musical events, but emerge directly from the experiences of visitors and fans. These places are constantly negotiated and only lightly formalized, but are nevertheless enduring. To analyze this type of place, we propose a concept of institutionalization “in becoming”. The case of the Tsoi Wall reveals that light formalization (vague and changing positions and rules, and openness to different interpretations of a place and ways of using it) leads to the recognition of the place as a significant one and to its popularity. We put institutionalization “in becoming” in a wider context and juxtapose it with well-studied musical places in Europe and the US.     

BETWEEN GENOCIDE AND “GENOCIDE”

The two books discussed here join a current pushback against the concept (thus also against claims for the historical occurrence) of genocide. Nichanian focuses on the Armenian “Aghed” (“Catastrophe”), inferring from his view of that event's undeniability that “genocide is not a fact” (since all facts are deniable). May's critique assumes that groups don't really—“objectively”—exist, as (by contrast) individuals do; thus, genocide—group murder—also has an “as if” quality so far as concerns the group victimized. On the one hand, then, uniqueness and sacralization; on the other hand, reductionism and diffusion. Alas, the historical and moral claims in “defense” of both genocide and “genocide” survive.     

OF BOUNDARIES,PLACES, AND SITUATIONS

Thomas F. Gieryn's Truth-Spots: How Places Make Us Believe presents eight case studies to support his historical-sociological thesis that “Places … have agency and exert a force of their own on the direction and pace of knowledge and belief” (18). Gieryn adds a new angle to a century-old discourse on the social construction of truth: the emplacement of credibility in narrated material locations. Throughout his career, Gieryn has contributed extensively to the spatial and placeful analysis of knowledge and social power: from advancing the concept of discursive “boundary-work” in the 1980s, to a refined method of “cultural cartography” in the 1990s, and in the twenty-first century, toward investigations of places: defined as meaning-enriched material locations. He has now advanced “truth-spots” as a type of place that credibilizes truth-claims. This essay reviews the key concepts in the career of this historical sociologist of scientific knowledge, through a mapping of Gieryn's own trajectory within the arc of a long pragmatist tradition in US social science. I shall use Gieryn's own case studies to test two key claims in his account of how place operates in the social-cultural construction of belief: (1) The model of “place” that Gieryn proposed in 2000, and has used consistently ever since (termed here a “Gieryn-place”), and (2) Gieryn's claim that features of “truth-spots” exhibit an observably independent (“agentic”) effect on the credibility of claims made there. I argue that both Gieryn-places and truth-spots suffer from incomplete specification of the ways in which people attach meanings to locations; of the boundaries of places; and of the sites of conscious encounter with places. They suffer also from his own boundary-work to exclude imaginary, cultural, and virtual spaces from his conception of place. This essay argues that a credible account of how place operates in/as history will require a focus on situation and situatedness, drawing on the pragmatist tradition of the Thomas Theorem. The concept of situation completes the circuit between meaning-production and the attachment of meaning to places and opens a gate for historical investigation, across the boundary between imagined, virtual, and conceptual spaces, and lived, material embodied places.     

From universal homogeneity to essential heterogeneity: On the visual construction of “the Lappish race”

During the second half of the nineteenth century, a radical change took place in the representation of the Saami. Whereas physical variation earlier was insignificant to cultural representation, from then on it became the very essence of their otherness. In this paper I relate the change in the representation of the Saami to the emergence of a modern discourse in which the concept of ‘race’ became central to the organization of knowledge and social practices as well as to the understanding of cultural difference. Moreover, I try to demonstrate how the “success” of the racial discourse was conditioned by new visual technologies.     

The neighbor as mirror: Representations of the Korean March First Movement in modern Chinese discourses of nationalism

Abstract

The outbreak of the Korean March First Movement in 1919 was followed by intensive reporting and commentary in Chinese media, presenting striking images of the brutality of the Japanese colonizers, the resolve for independence among the Korean people, and the concept of national self-determination. The March First Movement provided the Chinese people with a vivid example of the transformation of the abstract concept of “universal principles” into the practice of “national self-determination,” and strengthened consciousness of “national independence” among the Chinese people. Over the ensuing two or three decades, the “March First Movement” gradually seeped into the Chinese nationalist movement and discourses on national liberation, playing the role of “the neighbor as mirror,” and continuing to provide both positive inspiration and negative reference points for the Chinese people following the path of national independence. This linkage and interaction between “weak nations” aids in understanding the modern Chinese nationalist movement, as well as the mechanisms for development of the national independence movements among colonized peoples which swept across the globe in the early 20th century.     

Situated Creativity: A Way out of the Impasse of the Heidegger-Cassirer Debate

Summary

This paper criticizes the dualism of “thrownness” and “spontaneity” in Peter Gordon's interpretation of the Heidegger-Cassirer debate and shows that American pragmatism and other currents of thought offer an alternative in the form of a conception of situated creativity.