“Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges“, William & Mary Bill of Rights Journal 12(1):117-178 (2003).
ABSTRACT: Why do the people and institutions of democratic states, and in particular those of the United States, obey judges? This article examines the foundations of judicial authority in the United States. This authority is grounded on principles of dominance derived from the organization of institutional religion. The judge in Western states asserts authority on the same basis as the priest – but not the priest as conventionally understood. Rather, the authority of the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestly function developed in the philosophy of Friedrich Nietzsche. Focusing on the American Supreme Court and the European Court of Justice, this paper examines the manner in which high court judges have successfully internalized the characteristics of Nietzsche’s Paul and his priestly caste within the religion of Western constitutionalism. “Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrines believed. His need was for power; in Paul the priest wanted power once again – he could use only concepts, doctrines, symbols with which one tyrannizes masses and forms herds. (Antichrist ¶ 42). This critique of systems, and especially of systems locating the power of judgement, reward and punishment outside the self, finds echoes in the recent constitutional jurisprudence of the American Supreme Court and the European Court of Justice. The article then examines American and European textualism as a mechanism for the reinforcement of judicial authority. Judges acquire a monopoly over communication with the divine – justice, truth, norms – as expressed in constitutions, whether or not written. That expression provides the basis for the regulation of sin, deviation from the divine expression which only the priest knows. “The priest rules through the invention of sin;” (Antichrist ¶ 49); the constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests which have grown up around constitutionalism converts norms into a morass of the unknowable, except with the guidance of priests speaking through courts. And so the judge creates a mechanics of authority based on a self-reinforcing dependence.
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“Using Law Against Itself: Bush v. Gore Applied in the Courts”, Rutgers Law Review 55(4):1109-1174 (2003).
ABSTRACT:The decisions in Bush v. Palm Beach County Canvassing Bd. (“Bush I”) and Bush v. Gore, (“Bush II”) evidence the extent to which it now appears unremarkable for courts to play a role in even the most basic of political issues. While the doctronal value of the Bush decisions is certainly important, the Bush decisions are far more valuable for their endorsement of methodologies available to anyone seeking political advantage under the cover of judicial legitimacy. This article explores those principles, practices and procedures. I start with an appropriate theoretical context. For that purpose I look to LatCrit theory rather than more ideologically traditional or doctrinal theory. Ironically, this expression of critical theory, grounded in progressive political programs, provides the best conceptual basis for interpreting the ostensibly traditionalist Bush cases. I use this theoretical context to identify eight core methodological lessons of the Bush cases: (1) “Be Consciously Political;” (2) “Be Literal;” (3) “Attack Precedent;” (4) “Create Contradiction;” (5) “Appropriate;” (6) “Exploit Uncertainty and Sentimentality;” (7) “Recruit Legitimacy;” and (8) “If All Else Fails, Overwhelm Law Through its Own Devices.” I then explore the way these lessons have been internalized by the courts and applied in nearly one hundred published and unpublished judicial opinions issued since the publication of the Bush cases. Those opinions are windows through which one can see the ways in which litigants have attempted to extract meaning from the Bush decisions far beyond their officially sanctioned reading, and the ways in which judges have attempted to situate the Bush decisions within the body of American case law. In their least dangerous sense, the lessons, as applied, suggest the ways in which the juridification of politics has become institutionalized in federal and state courts. The courts now rival the legislature as the venue par excellence for the resolution of political issues of every description. But the lessons also suggest the naturalization, within an ostensibly conservative political jurisprudence, of methodologies of legal perversion, of the use of law against itself. Having made a vocation of criticizing the political left for the nihilistic evils of critical and other progressive apoproaches to law, a so-called conservative court has gone a long way to implement a jurispruence of ultimate relativism and indeterminacy. Now that is irony!
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“The Führer Principle of International Law: Individual Responsibility and Collective Punishment,” Penn State International Law Review 21(3):509-567 (2003).
ABSTRACT: I offer here an extended Nietzschean joke: the necessity of error in the constitution of individual authority and communal power. Communities–the nation-state, religious communities, terrorist organizations–are arranged through a cultivation of error: mistaking causes for effects, assuming a false causality, creating an imagined causality, and assuming a free will. These errors of causation, these miscausations, have been offered as a means through which leaders or leader classes–the judge, the priest, the king, the president, the charismatic leader of violent sub-national communities–maintain authority. In contrast, the community itself, those who are led, dominated, controlled, manipulated, are considered only in the passive. They are the victims, the weak-willed, the powerless, the sheep, the herd. They obey because they must. But authority is not power, and reality is more subtle and layered than what appears on the surface of relationships. Just as the priest, the leader uses miscausation to create the illusion of power and so protect and expand individual authority, so the community uses miscausation to assert communal power–over the *510 priest, the president, the judge, the leader– through the illusion of weakness. The strong leader does not usurp power from the communal weak; the herd, for its own preservation as a herd, demands the appearance of overlordship of the leader. The cult of the leader, of the individual solely responsible for her acts, and of communities consisting of passive amalgams free from responsibility serve as the foundation for modern human rights and humanitarian law. But the cult of the leader itself constitutes a titanic act of mis-causation in four parts: (1) that communities are protected not because they are weak, but because they are strong, to protect the community against blame for action committed in its name by its leaders; (2) that the leader is dependent on the community; the leader acts in conformity to the wishes of the people; (3) that the leader then serves as proxy for the community; the doctrine of personal responsibility for communal acts protects a community by sacrificing its leaders for acts of communal wrongs; and (4) that the community, the sheep, are in actuality the Shepherd in a world arranged to minimize the costs of inter-community conflicts for power. For modern political and legal theory, this misunderstanding unveils the perversity of the logic of modern international humanitarian law. I will offer an example–the way international humanitarian law, used to condemn punitive house demolitions in Israel, serves to subsidize the maintenance of the cultural production of hatred which constitutes communal permission to engage in individual acts of violence against not Israelis, but Jews.
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