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OUSE

Paul M. Shupack*

I write of use. Since you are reading this text, you cannot tellwhether I mean use-"yous"-the noun form, or whether I meanuse-"uze"-the verb. The speech forms force one into choosing oneor the other. The written forms do not. Use, as a verb, always re-quires that there be a user. In the noun form, we speak of "the use ofsomething," without necessarily meaning either that use inheres in theobject or that there is no use without a user-either actual or impliedto determine the use. To make clear to the reader, I adopt a spell-ing--ouse--that designates precisely this ambiguity. The form hasthe advantage of recalling the Heraclitian River-the present which isalso ever the past, but which can never be returned to. If the userdoes leave a trace on how anything (thing?-but where does thatleave the possibility of referring to the uses of abstractions?) can bereferred to as having a use, then the Heraclitian River warns us thatthe present contains, in that usage, the inscription of the past, a pastthat is never fully present, yet is both simultaneously inescapablypresent and gone.

The word ouse should not be taken lightly. Wittgenstein tells usthat the meaning of a term "is [its] use."' By use, does he mean tolimit us to "yous," with its implication that the term has a meaning ofits own? In light of his complete argument on language, that appearsmost unlikely. Yet, if we go altogether to "uze," then the term, likeAlice's caterpillar's words, must be paid wages by the user. If weinsist that ouse is the meaning to be given here, then we acknowledgethe trace of the past upon the present.

Of course, this is just play. But what sense of play? The childrenaping roles of adults? A piece of theatre? Following rules of games?The passive response of a wall to lights "playing on it?" The freedomthat a piece of machinery has in moving between other pieces?

The writer, as Derrida,2 can talk of play. In what sense does heuse this word? Which is the meaning, which is the echo, and which isthe trace? The multiple meanings of the word permit the author toplay with us, and to play with ideas. The play of ideas itself in-

* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. A.B.,1961, Columbia University; J.D., 1970, University of Chicago.

I L. WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 138-39. (G. Anscombe trans.3d. ed. 1958).

2 J. DERRIDA, Diffdrance, in MARGINS OF PHILOSOPY 17 (A. Bass ed. 1982).

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troduces a new layer of meaning to play. The writer may have multi-ple meanings in mind, and inform us by elliptical statements (itself, aneccentric, off-center idea) of some of the associations. If the writer isfortunate in his translator, the footnotes will spin the mind of thereader away from the text and towards the context (could the contextalso be the ur-text in this case?), joining the author in the game ofideas as well as words. The play of ideas is not, of course, necessarilysolitary. Every reader brings to a text a pre-text of ideas and associa-tions. The pre-text becomes the pretext for the reader's engagementin the activity of reading, which brings to the text the involvement,the engagement, the reader at play.

The play of this play with Derrida's play shows the looseness ofwords to describe ideas, yet another part of play in writing-play intext analogous to the mechanical play in a piece of machinery, whichhas tolerances within which the machine still functions. The playmay well not only describe mechanical tolerance, but mechanical ne-cessity-that is the necessary space around a piece of moving machin-ery to keep it free of the neighboring machinery. Mechanical playthus has a double gesture: while always describing a limit beyondwhich work becomes impossible, either because there is too much ortoo little space.

That part of Heidegger relied on by Derrida at the end of Diffr-ance invites play. "However, the distinction between Being and be-ings, as something forgotten, can invade our experience only if it hasalready unveiled itself with the presencing of what is present whichremains preserved in the language to which Being comes."3 "Pres-ent" presents in this writing the same type of difficulties that Diffir-ance presented for the audience hearing the paper. Without hearingthis translation read out loud, we do not know if the critical wordshould be read pre-sent, that is, sent before, or whether it should beread present, that is, here. If Being is pre-sent, then God has, despiteour forgetting (a consequence of leaving Eden), left the trace of hispresence in the language he gave us. The forgotten Being is simplythe manifestation of his presence in all of his work. If all presencemeans is here, then the Heidegger text asserts the necessity of thetrace of Being-though forgotten-as the source of meaning.

A remembrance of a scene from late night television places thatclaim of necessity in question. It is from a Grade-B jungle moviefrom the 1930's. The scene is nighttime. A white man is asleep in his

3 Id. at 25.

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tent in the middle of a clearing. There is a flickering glow in the back-ground forest beyond the clearing.

The action: A native runs into the clearing and shouts into thetent, "Ooma booma." (The subtitle reads, "The great forest god isangry that we have permitted a stranger to stay the night in ourvillage.")

The white man, awakened by this speach (and also speech), runsout of his tent and says, "Oh, my god, there is a forest fire!" He runsto the river, leaps into it, and swims across. Shortly thereafter thenative appears on that side of the river.

The native says, "Goomba, boomb boomb." (The subtitle reads,"Thank you for removing yourself from our village. Your act of self-exile has saved us from the even greater wraths the forest god caninflict on us. It is a wonderful thing to find a guest who does notabuse his guest privileges by insisting on them even after a god hasexpressed its anger.")

The white man says, "Little brown brother, you saved my life. Idon't know how to thank you. With my tent destroyed, I must getback to civilization. Only there can I reward you. Will you comewith me?"

The native responds, "Roomba, rooombal alala." (The subtitlereads, "The village would appreciate your removing yourself from ouralternative village site, since your continued presence risks the god'sanger. Yet under the rules of hospitality, we cannot ask you toleave.")

The white man replies, "If you cannot come with me, I under-stand. Even though I cannot reward you, I want you to know I willremember your generous act always."

Both men leave in opposite directions, smiling warmly at eachother.

The participants in this discussion think that they understandeach other. They will never know that they did not achieve any com-munication. Only through the artifice of the all-knowing eye of thecamera (a mechanical god) can we say that the causal antecedent ofeach sentence spoken differs from that the hearer thought was thecausal antecedent. Except for fiction, the world we live in offers noopportunities for such an observer. We can never know for certainthat a causal connector exists between one statement and anotherstatement.

All claims of successful communication must remain in doubt. Ifsuccessful communication must be doubted, so then must trace besubject to the same doubt and to the same degree.

1991] OUSE 1279

GROUP 2

THE CONSTITUTION OF THE PEOPLE:FREDERICK DOUGLASS AND THE

DRED SCOTT DECISION

Robert Bernasconi *

What will the people of America a hundred years hence care aboutthe intentions of the scriveners who wrote the Constitution?

Frederick DouglassThe Constitution of the United States:

Is it Pro-Slavery or Anti-Slavery?

That a nation is founded by a people, who nevertheless attaintheir self-identity as a people only in the course of the very act ofconstitution, forms the central paradox of social contract theory."The people" are supposed to be a party to the contract, but they areonly constituted by the contract. The paradox did not go entirelyunnoticed among the proponents of social contract theory. Rousseaucriticized his predecessors for attributing to the people who institutedsociety qualities which would arise only within society, but he foundhimself unable to avoid the same difficulty. In an attempt to meet it,he introduced the legislator. The task of the legislator was to makethe people what they already should have been, for the social contractto be possible and for the laws to be legitimate. "[M]en would have tobe prior to laws what they ought to become by means of laws."' Thisis the paradoxical temporality of contract theory: in order to securelegitimacy for the state and its laws, the existence of the people mustbe presupposed, but, in fact, their existence is postponed, perhaps end-lessly so.2 Nor is the issue confined to the world of theory. It appliesdirectly to nations whose political self-understanding has in largemeasure been formed by social contract theory, as is the case with the

* The Lillian and Morris Moss Chair of Excellence in Philosophy, Memphis State Univer-sity. B.A., 1972, Sussex University; D.Phil., 1982, Sussex University.

I J.-J. ROUSSEAU, Du contract social, in OEUVRES COMPLTES 383 (B. Gagnebin & M.Raymone eds. 1964); J.-J. ROUSSEAU, ON THE SOCIAL CONTRACT 69 (J. Masters trans. 1978).

2 See Bernasconi, Rousseau and the Supplement to the Social Contract: Deconstruction andthe Possibility of Democracy, 11 CARDOZO L. REV. 1539, 1557-58 (1990). The reading offeredthere is indebted to L. ALTHUSSER, MONTESQUIEU, ROUSSEAU, MARX: POLITICS AND His-TORY 125-34 (B. Brewster trans. 1972); G. BENNINGTON, SENTENTIOUSNESS AND THE

NOVEL 156-71 (1985); and P. DE MAN, ALLEGORIES OF READING 270-77 (1979).

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United States of America.3 The impact of the Dred Scott decision4

shows just how explosive the issue of slavery had become by the mid-nineteenth century. In what follows, I shall attempt to outline theviolent operation of the paradox as it relates to the opening phrase ofthe Constitution-"We the People of the United States" 5-both as itoperates within Chief Justice Taney's opinion for the United StatesSupreme Court in the Dred Scott case and in the response by Freder-ick Douglass.

It would be impossible in the space available, and perhaps in anycase unnecessary, to rehearse the details of the notorious Dred Scottcase as it passed through the various courts.6 Briefly, in April 1846,Dred Scott, who, as a slave, had resided on the free soil of Illinois andthe Minnesota Territory, petitioned Judge Krum of the Circuit Courtof St. Louis for permission to bring suit for his freedom from slaveryunder the provisions of the 1820 Missouri Compromise.7 The jurydecided against Scott on this occasion, but the jury set Scott free onretrial in 1850. This decision was itself subsequently overturned bythe Missouri Supreme Court two years later.' Although the decisionseemed contrary to precedent,9 there was nothing yet to indicate theimportance the case would later assume. The constitutional and legalproblems, which today are indelibly associated with the name of DredScott, arose only after the case had been transferred to the federalcourts in November 1853. Diversity of citizenship had to be estab-lished in order to confirm that the court had jurisdiction. For thispurpose, District Judge Wells deemed Scott a citizen. Subsequentlythe jury, acting in conformity with Judge Wells's instructions, leftScott in slavery. In March 1857, when the United States SupremeCourt issued its decision, the questions of jurisdiction and citizenshipwere at the forefront of its opinion. To this day there is some uncer-tainty as to precisely what the Court decided, as it is far from clearthat a majority of the justices concurred with everything that Chief

3 See Derrida, Declarations of Independence, 15 NEW POL. Sci. 7-15 (1986).4 Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).5 U.S. CONST. preamble.6 For details of the case see, for example, D. FEHRENBACHER, THE DRED SCOrr CASE

(1978); V. HOPKINS, DRED SCOTr'S CASE (1951 & reprint 1967); THE DRED ScoTr DECI-SION: LAW OR POLITICS? at ix-xx (S. Kutler ed. 1967).

7 Act of March 6, 1820, ch. 22, § 8, 3 Stat. 545, 548, repealed by Act of May 30, 1854, ch.59, 10 Stat. 277.

8 Dred Scott v. Emerson, 15 Mo. 576 (1852).9 D. FEHRENBACHER, supra note 6, at 252. But see Catterall, Some Antecedents of the

Dred Scott Case, 30 AM. HIST. REV. 56-71 (1924-1925) (arguing that Chief Justice Taney'sdecision in Dred Scott is supported under a conflict of laws analysis).

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CONSTITUTION OF THE PEOPLE

Justice Taney presented as "the opinion of the court.' ' t What is clearis that after eleven years of litigation, Dred Scott found himself beforethe highest court of the land, only to be told that he was not a citizenand that in consequence the Court did not recognize his right to bringsuit." What has been open to dispute is whether the Court decidedScott was not a citizen because he was a Negro, or whether theyresolved he was not a citizen because he was a slave. If the latter, thedecision not to hear the case could in a certain sense only be reachedafter hearing the case and after deciding in addition that the MissouriCompromise, which had been repealed in 1854, had beenunconstitutional. 12

In giving the Court's decision, Chief Justice Taney passed fromthe claim that enslaved members of the African race were not in-tended to be included in the Declaration of Independence to the claimthat their descendants, whether still in slavery or not, could not be-come citizens of the United States.

In the opinion of the court, the legislation and histories of thetimes, and the language used in the Declaration of Independence,show, that neither the class of persons who had been imported asslaves, nor their descendants, whether they had become free or not,were then acknowledged as a part of the people, nor intended tobe included in the general words used in that memorableinstrument. 13

Taney's main argument is staggering for the values it enshrines. Quitesimply, Taney judged that if the inclusion of Blacks had been in-tended by the framers of the Declaration, those "great men" wouldhave been guilty of "asserting principles inconsistent with those onwhich they were acting."" Of this he judged them "incapable."'"The prospect was unthinkable to Taney. Or, at the very least, it wasmore unthinkable than the idea that the framers had intended to ex-clude succeeding generations of Blacks from citizenship and thusfrom recourse to the law. Taney granted that were the proposition"all men are created equal" to be used "in a similar instrument at thisday," the words would be understood as embracing "the wholehuman family."' 6 In making that concession Taney might appear to

10 See Allis, The Dred Scott Labyrinth, in TEACHERS OF HISTORY: ESSAYS IN HONOR OF

LAURENCE BRADFORD PACKARD 341 (H. Hughes ed. 1954).11 The Court dismissed the case for lack of subject matter jurisdiction. Dred Scott v. Sand-

ford, 60 U.S. (19 How.) 393 (1857).12 Act of May 30, 1854, ch. 59, 10 Stat. 277.13 Dred Scott v. Sandford, 60 U.S. (19 How.) at 407.14 Id. at 410.

15 Id.16 Id.

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have conceded that the right of Black Americans to life, liberty, andthe pursuit of happiness was no less "self-evident" than that of WhiteAmericans. The question then arises as to how Taney avoided draw-ing this conclusion and as to how he avoided doubting the legitimacyof a government which denied Blacks rights, the absence of which hadbeen sufficient eighty years earlier to justify White Americans in theirrevolt against the British Crown. If, as the Declaration of Indepen-dence says, governments are instituted to secure "certain inalienablerights,"' 7 and if they derive "their just powers from the consent of thegoverned,"'" then one need only include Blacks among "the people"to establish that slavery was contrary to the very basis of the UnitedStates of America as a political society.

Taney avoided the question on the grounds that "[i]t is not theprovince of the court to decide upon the justice or injustice, the policyor impolicy, of these laws."19 This allowed him to say that no changein public opinion in relation to "[t]he unhappy black race"20 had abearing on the way the Constitution was to be construed by theCourt. There are procedures within the Constitution for changingprovisions which are subsequently deemed unjust. Until recourse ismade to them, the Constitution "speaks not only in the same words,but with the same meaning and intent with which it spoke when itcame from the hands of its framers, and was voted on and adopted bythe people of the United States."2 Taney was oblivious to the factthat the paradox of contract theory emerged in that last phrase. Whovoted on the Constitution? The people who voted, themselves deter-mined that they were "the people" by a violent act of exclusion thatwould be perpetuated by the government and the courts.

Nevertheless, Taney's appeal to the intentions of the framers ofthe Constitution was disingenuous. He used the threat of having toaddress the alleged hypocrisy of the revered founding fathers as a ba-sis for claiming that their intention was the maintenance of the condi-tions which existed at the time they drew up the Constitution. Inother words, future generations were to be held to the prejudices pre-vailing at the time of its adoption. "[T]he inferior and subject condi-tion of [the African race] at the time the Constitution was adopted"22

provided Taney with the legal basis for perpetuating the same systemin the most vicious manner. This was because the paradoxical tempo-

17 The Declaration of Independence para. 1 (U.S. 1776).18 Id. at para. 2.19 Dred Scott, 60 U.S. at 405.20 Id. at 410.21 Id. at 426.22 Id. at 416.

[Vol. 13:12811284


rality of the constitution of the people was halted by Taney at thefateful moment when the Constitution was signed. The people werenot still to come. They were reduced to reconstituting themselves inaccord with an identity that they had had at the moment of theirconstitution, the moment of the Constitution that spoke in theirname. Their composition had been set. The United States wasformed by and for the citizens of the several states "at that time" andthey did so, according to Taney, for "their posterity, but for no oneelse." 23 There were provisions for extending citizenship, but Taneyinsisted it could not have been envisaged that citizenship be extendedto include slaves, freed slaves, or their descendants. Because Taneyjudged it "difficult at this day to realize the state of public opinion inrelation to that unfortunate race, which prevailed in the civilized andenlightened portions of the world at the time of the Declaration ofIndependence, and when the Constitution of the United States wasframed and adopted, '24 he inserted a brief history which establishedthe racist attitudes of European nations, particularly England, andrecalled certain vicious ordinances of colonial law directed againstNegroes and Mulattoes. 25 The purpose was to establish that the foun-ders intended to erect a barrier between the two races which was notonly impassable but "perpetual. '26 Because Blacks were regarded as"so far inferior, that they had no rights which the white man wasbound to respect" 27 at the time of the Constitution, there was no needfor the Court to address the question of their rights. The meaning ofwords might change over time, but the meaning of the Constitution,and in particular its exclusions, would remain constant.

The framers, who were almost always regarded as of one mindand with a single intention, great and incapable of hypocrisy thoughthey were, were also thought to be unable to look beyond the momentor have aspirations for any state of affairs other than that existing atthe time.28 Taney did not attempt to give positive significance to theabsence of any direct mention of slavery, or of a Black population, inthe Constitution. He did not reflect on why he had to offer a chargedreading of the historical context in order to establish a code of valueswhich the Constitution seems to have gone out of its way to avoid

23 Id. at 406.24 Id. at 407.25 Id. at 407-09.26 Id. at 409.27 Id. at 407.28 For a discussion of Taney's opinion in terms of the framers' intentions, as well as the

idea of the law as inherently aspirational, see J. WHITE, JUSTICE As TRANSLATION 123-37(1990).

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recognizing.29 Only in one respect was a group among the foundingfathers isolated, and only they were supposed to show any foresight inlooking beyond the conditions prevailing at that time. This was sothat slaveholders might recognize the dangers that would arise were"persons of the negro race" 3° allowed freedom of movement, ofspeech, or the right to carry arms. "It is impossible, it would seem, tobelieve that the great men of the slaveholding States ... could havebeen so forgetful or regardless of their own safety and the safety ofthose who trusted and confided in them [to secure rights and privi-leges for Blacks]."'"

In passing from the claim that enslaved members of the Africanrace were not intended to be included in the Declaration of Indepen-dence, to the claim that their free descendants could not become citi-zens of the United States, it might seem that Taney ignored the factthat there were free Blacks at the time the Constitution was signed. Ifthere had been free Blacks, then, by Taney's own argument, that citi-zenship was primarily for the citizens of the several states "at thattime" and "for their posterity," it would seem the legitimacy of Blackcitizenship had been established. This was the opinion of Justice Cur-tis, who denied that "the Constitution was made exclusively by andfor the white race."32 Justice Curtis argued that in five of the thirteenoriginal states there had been Blacks in possession of the electivefranchise. 33 They, therefore, were a part of "the people who framedand adopted, ' 34 if not the Declaration of Independence, then at leastthe Constitution. This would seem to mean that Taney's history ofthe way Blacks were conceived at that time was faulty. Moreover,Taney's argument should have led him to the opposite conclusionfrom the one he actually drew. But, while not addressing the questionof the electoral franchise directly, Taney did indeed acknowledge thepresence of a few free Blacks who were yet "identified in the publicmind with the race to which they belonged, and regarded as a part of

29 Montgomery Blair, counsel for Dred Scott, argued to the Supreme Court that article 1,

section 9 of the Constitution, which allowed for the prohibition of the slave trade, proved"'conclusively' that the policy of the founding fathers was against the extension of slavery."V. HOPKINS, supra note 6, at 39. He also noted " 'the expressive silence of the Constitution onthe subject of slavery.' " Id.

30 Dred Scott, 60 U.S. at 417.31 Id. at 417.32 Id. at 582 (Curtis, J., dissenting).33 Justice Curtis was careful to avoid seeming to prove more than he wanted to prove. He

added that citizenship was "not dependent on the possession of any particular political or evenof all civil rights," nor did it guarantee them. Id. at 583.

34 Id. at 410.

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the slave population rather than the free."'35 Taney rendered themtotally irrelevant by removing them from the intentions of the framersof the Constitution, thereby confirming that these "great men" werethe bench mark he was using, and not "the people" themselves.Emancipated slaves were, he wrote, "not even in the minds of theframers of the Constitution when they were conferring special rightsand privileges upon the citizens of a State in every other part of theUnion."36

A closely related issue is raised by the fact that the case is oftenreported as denying citizenship to Negroes, whereas Taney was al-most always careful to use some such formulation as '"the descendantsof Africans who were imported into this country, and sold asslaves."37 Taney did not do this in order to open up the possibility ofcitizenship to Africans who had voluntarily migrated to the UnitedStates. He confidently asserted that there had not been any voluntarymigration: "[A]lI of them had been brought here as articles of mer-chandise."38 And so, one must presume, the possibility that Blackswere part of the citizenship, entitled to the rights and privileges underthe Constitution, could not have been intended by the framers of theConstitution. It is possible that Taney used this formulation in orderto exclude Mulattoes from citizenship. Any right to citizenship fromtheir White parenthood must be presumed to have been erased bywhat Taney would presumably have regarded as a form ofcontamination.

If knowledge of the conditions prevailing at the time the Consti-tution was signed was not helpful to Taney's case, even more awk-ward for Taney was the history of how citizenship had been extendedin ways he did not acknowledge. While overemphasizing the found-ing generation of citizens, Taney overlooked, for example, the collec-tive naturalization of inhabitants in territories acquired by treaty orcession. 39 Furthermore, Justice Curtis, while affirming Congress'spower of naturalization, insisted in his dissenting opinion that eachstate was free to determine which persons, born within its limits,should be citizens of each state, and thereby citizens of the UnitedStates.' Taney's neglect of such details supplies further evidence, if

35 Id. at 411.36 Id. at 411-12.37 Id. at 403.38 Id. at 411.39 See J. KETTNER, THE DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608-1870, at 329-

31 (1978).40 Dred Scott, 60 U.S. at 577 (Curtis, J., dissenting).

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any is needed, of how his judgment was directed by extralegalconsiderations.

Taney's narrow interpretation of the opening phrase of the Con-stitution-"We the People of the United States"-was widespreadand was not confined to the upholders of slavery. Members of theAbolitionist Party, led by William Lloyd Garrison, were also per-suaded that the Constitution was a proslavery document, a "covenantwith death."'" Garrison advocated the dissolution of the Unionunder the watchword: "No UNION WITH SLAVEHOLDERS!"42 Fred-erick Douglass initially was a member of Garrison's party and fol-lowed Garrison's interpretation of the Constitution as well as his callfor its overthrow.4a But early in 1849, while still maintaining the in-terpretation of the Constitution as proslavery according to its originalintent and meaning, Douglass allowed, in an unusual phrase that heborrowed from C. H. Chase, that it was not a proslavery documentwhen "construed according to its reading."' Douglass later ex-plained that in using the phrase he had meant that the Constitutionwas not proslavery when "construed only in the light of its letter,without reference to the opinions of the men who framed and adoptedit, or to the uniform, universal and undeviating practice of the nationunder it."' 45 Douglass's criticisms of the Constitution remained intact.He still viewed it as "a compromise with manstealers," 46 a compactbetween North and South to which the slave was not a party.4 7 TheConstitution was everything the slaveholders said it was, butDouglass had opened himself to another reading of it. The so-calledFugitive Slave provision of the Constitution 4

1 was "intended to applyto fugitive slaves," but the clause in question was neither clear nor

41 W. GARRISON, The American Union, in SELECTIONS FROM THE WRITINGS ANDSPEECHES OF WILLIAM LLOYD GARRISON 118 (1852 & reprint 1968).

42 Id. at 119.

43 F. DOUGLASS, The Right to Criticize American Institutions, in I THE LIFE AND WRIT-

INGS OF FREDERICK DOUGLASS 234, 236 (P. Foner ed. 1950) [hereinafter LIFE ANDWRITINGS].

44 F. DOUGLASS, The Constitution and Slavery, in I LIFE AND WRITINGS, supra note 43, at352 (letter to C. H. Chase).

45 Id. at 361.46 F. DOUGLASS, To Thomas Van Rensselaer, in 1 LIFE AND WRITINGS, supra note 43, at

243, 245.47 F. DOUGLASS, The Constitution and Slavery, in I LIFE AND WRITINGS, supra note 43, at

361, 366.48 U.S. CONST. art. IV., § 2, cl. 3: "No Person held to Service or Labour in one State,

under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regula-tion therein, be discharged from such Service or Labour, but shall be delivered up on Claim ofthe Party to whom such Service or Labour may be due."

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explicit.4 9 It was no accident that the Constitution was ambiguous onthe question of slavery and contained no reference to "slavery-onlyslavery-and nothing else than slavery." 5 "[T]he framers of thatcunning instrument were ashamed of the name."'" That was the rea-son why the letter of the Constitution meant one thing and "its his-tory, the meaning attached to it by its framers, the men who adoptedit, and the circumstances in which it was adopted" meant another.5 2

However, the double reading of the Constitution gave way, atleast by 1851, to an interpretation in which the intention of the "fa-thers of the Republic" was to acknowledge slavery to be "an expiringinstitution."53 This was most dramatically expressed by Douglass in aspeech he delivered on July 5, 1852 on "The Meaning of July Fourthfor the Negro."54 The Constitution was presented as a "glorious lib-erty document."55 The signers of the Declaration of Independencewere "great men" who admired liberty and who "loved their countrybetter than their own private interests."5 6 "With them, justice, libertyand humanity were 'final'; not slavery and oppression. ' 57 It was notso much the founders who were hypocritical; it was the nation.58 Notonly is there not a single proslavery clause in the Constitution, ac-cording to "its plain reading." It contains principles and purposeswhich are entirely hostile to the existence of slavery.59

This was the interpretation of the Constitution which underlayDouglass's essay on the Dred Scott decision.6° The Constitution was"excellent law."' 6 1 It was the administration of the law and the Amer-ican people with their "wicked pride, love of power, and selfish per-

49 F. DOUGLASS, The Address of Southern Delegates in Congress to Their Constituents, in 1LIFE AND WRITINGS, supra note 43, at 353, 356.

5o Id.51 Id.

52 F. DOUGLASS, Comments on Gerrit Smith's Address, in 1 LIFE AND WRITINGS, supra

note 43, at 374, 377.53 F. DOUGLASS, IS the United States Constitution For or Against Slavery?, in 5 LIFE AND

WRITINGS, supra note 43, at 191, 196.54 F. DOUGLASS, The Meaning of July Fourth for the Negro, in 2 LIFE AND WRITINGS,

supra note 43, at 181-204.55 Id. at 202.56 Id. at 186.57 Id.58 Id. at 192 ("The hypocrisy of the nation must be exposed; and its crimes against God

and man must be proclaimed and denounced.").59 Id. at 202 ("Now, take the Constitution according to its plain reading, and I defy the

presentation of a single pro-slavery clause in it. On the other hand, it will be found to containprinciples and purposes entirely hostile to the existence of slavery.").

60 F. DOUGLASS, The Dred Scott Decision, in 2 LIFE AND WRITINGS, supra note 43, at 407-24 [hereinafter The Decision].

61 Id. at 423.

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verseness" who were at fault.6 2 Douglass conceded that slavery wasadmitted under the Constitution.63 It was simply not guaranteed 64 or"plainly stated," and, according to what Douglass understood to be"[tihe well known rules of legal interpretation," the language of legalinstruments "must be construed strictly in favor of liberty and jus-tice."' 65 Furthermore, it was the intention of the legal instruments ascollected from the words rather than any alleged "secret and unwrit-ten understanding of its framers"66 that was decisive. In accordancewith these principles, Douglass maintained that the words "We thePeople" be construed as referring not to White people, citizens, legalvoters, or the privileged classes exclusively, but, unlike Taney, 67 to"the men and women, the human inhabitants of the United States,"68and, as he adds later with some irony, "without reference to color,size, or any physical peculiarities. 69

This provided the context for Douglass's response to the DredScott decision in a speech he delivered to the American Anti-SlaverySociety in May 1857. Douglass not only put a most generous inter-pretation on the Constitution. He was intent on providing a positivereading of contemporary events, because to do otherwise would per-haps encourage free Blacks to seek emigration, a course of actionwhich would leave the slaves only further isolated. Douglass pro-posed that "[iun one point of view, we, the abolitionists and coloredpeople, should meet this decision, unlooked for and monstrous as itappears, in a cheerful spirit" and as possibly "one necessary link inthe chain of events preparatory to the downfall and complete over-

62 Id. at 415-16.63 Id. at 418.

64 Id. at 419 ("Where will [the man who reads the Constitution] find a guarantee forslavery?").

65 Id. at 418.66 Id. at 420.67 Chief Justice Taney wrote: "[Each State had the right to decide for itself, and in its

own tribunals, whom it would acknowledge as a free inhabitant of another State." Dred Scottv. Sandford, 60 U.S. (19 How.) 393, 418 (1857). Commenting further on this interpretation ofthe Constitution, Taney proposed:

Words could hardly have been used which more strongly mark the line ofdistinction between the citizen and the subject; the free and the subjugated races.The latter were not even counted when the inhabitants of a State were to be em-bodied in proportion to its numbers for the general defense. And it cannot for amoment be supposed, that a class of persons thus separated and rejected fromthose who formed the sovereignty of the States, were yet intended to be includedunder the words "free inhabitants," in the preceding article, to whom privilegesand immunities were so carefully secured in every State.

Id. at 418-19.68 F. DOUGLASS, The Decision, supra note 60, at 419.69 Id. at 424.

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throw of the whole slave system."7 The decision in the Dred Scottcase would bring the issue of slavery to a head in such a way that theWhite population in the North would be forced to address it. Indeed,precisely because Taney's judgment was "an open rebellion againstGod's government," 7' Douglass saw the hand of God in it: "This de-cision ... is another proof that God does not mean that we shall go tosleep, and forget that we are a slaveholding nation."72

It was in this spirit that Douglass took stock of the opinion of thecourt in the Dred Scott case, looking for signs of hope. Douglass sin-gled out events in St. Louis for particular attention. "One Southerncity has grieved and astonished the whole South by a preference forfreedom. The wedge has entered. Dred Scott, of Missouri, goes intoslavery, but St. Louis declares for freedom. The judgment of Taney isnot the judgment of St. Louis."'73 It is not entirely clear whetherDouglass was referring to the St. Louis jury that declared Dred Scotta free man in 1850, or, as the language seems to suggest, a more re-cent occurrence. In any event, "the gleam of hope" that issued fromSt. Louis was not unambiguous: "It may be said that this demonstra-tion in St. Louis is not to be taken as an evidence of sympathy withthe slave; that it is purely a white man's victory. I admit it. Yet I amglad that white men, bad as they generally are, should gain a victoryover slavery." 74 Douglass's suspicion of the basis of the decision isovercome by his pleasure in its implications: "I am willing to accept ajudgment against slavery, whether supported by white or black rea-sons-though I would much rather have it supported by both. Hethat is not against us, is on our part."7

So far as I am aware, Douglass nowhere else draws the distinc-tion between White and Black reasons. And yet it is tempting to see itas organizing not just this essay, but all his writings against slavery atabout this time, including his interpretation of the opening phrase ofthe Constitution. Douglass was well aware of the very different inter-ests that had to be united in order to secure the abolition of slavery.The immediate context of the phrase "white reasons" suggests that itrefers to White interests threatened by slavery, interests quite in-dependent of sympathy for the slaves. The most obvious example isprovided by the argument that slavery is unprofitable. At this level,the Anti-Slavery movement is reduced to "the basest selfishness mas-

70 Id. at 412.71 Id. at 411.72 Id. at 412.73 Id. at 414.-74 Id.75 Id.

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querading in the garb of an angel."76 This was never more apparentthan in the case of those prominent citizens of Kansas who, whileclaiming to be against slavery, wanted to keep all Blacks from thatstate." "We are pleased that the whites are finding that they cannotdegrade their black brother without sharing his degradation. But wegrieve to find, that under the shelter of this mode of attack the fellspirit of Negro hate can hide itself."'78 Slavery was perverting the in-stitutions of the country so that "the white people, as well as the blackpeople, should take heed."' 79 Douglass also warned the slaveholdersof impending violence. The slave as "the constant victim of bothfraud and violence"80 was unlikely to escape the contagion. Douglassrecalled Jefferson's famous statement that he trembled for his countrywhen he reflected that God is just. Unlike White apologists whosometimes cite the phrase out of context, in an attempt to give theimpression that it was Jefferson's conscience which bothered him,Douglass had not forgotten that what Jefferson feared was "a revolu-tion of the wheel of fortune, an exchange of situation."8 "

Declining profit and mounting violence evoked White supportfor the abolition of slavery simply in terms of White interests, andwithout reference to the conditions of Black slaves. It was similarly interms of White reasons that Douglass would have understood the1850 verdict of the St. Louis jury in favor of Scott as "a white vic-tory" but not "a black victory." Their verdict was not based on theview that slavery was wrong and should everywhere be abandoned. Itwas argued in terms of the Missouri Compromise, which delineatedterritory from which slavery was excluded. Douglass was not a sup-porter of the Missouri Compromise. In 1854, when supporters ofslavery had rallied to repeal it, Douglass had not come to its defense.On the contrary, he regarded the Missouri Compromise in the sameterms that he had earlier used to describe the Constitution. It was acompact with slavery. In keeping slavery from half the territory, slav-ery was conceded to the other half. Recalling Garrison's famous

76 F. DOUGLASS, The Unholy Alliance of Negro Hate and Anti-Slavery, in 2 LIFE ANDWRITINGS, supra note 43, at 385, 387 [hereinafter The Unholy Alliance].

77 F. DOUGLASS, To Benjamin Coates, Esqr., in 2 LIFE AND WRITINGS, supra note 43, at387; see also F. DOUGLASS, The Kansas Constitutional Convention, in 2 LIFE AND WRITINGS,supra note 43, at 451, 452 ("The far-framed Topeka constitution put the black man's rights incontempt, by putting them in question .... While they affirmed their own right to live inKansas, and to live there in freedom, they submitted to the people the question as to whethercolored men should have that right.").

78 F. DOUGLASS, The Unholy Alliance, supra note 76, at 386.79 F. DOUGLASS, The Decision, supra note 60, at 413.80 Id.

81 T. JEFFERSON, NOTES ON THE STATE OF VIRGINIA 156 (1861 & reprint 1976).

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phrase, he wrote: "Whatever may be said of other-compacts, this, atleast, was a 'covenant with death,' and one which cannot be inno-cently perpetuated by this generation. '8 2 It was only in terms ofWhite reasons that one could make sense of the way opponents ofslavery in the North felt an obligation to maintain and honor com-promises with slavery out of "reverence for law."'8 3 This appliedequally to the Missouri Compromise"4 and to the application of theFugitive Slave Bill. 5 White reasons are met if slavery is kept at adistance: "Instead of walking straight up to the giant wrong and de-manding its utter overthrow, we are talking of limiting it, circum-scribing it, surrounding it with free States, and leaving it to die ofinward decay."" 6 But Black reasons would not tolerate slavery at alland Douglass did not hesitate to advocate the use of violence againstthe agents of slaveholders sent North to return slaves to the South. 7

One might speculate therefore that Douglass would have re-garded the abolitionist movement of Garrison as also exemplifyingWhite reasons. The apparently revolutionary strategy of dissolvingthe Union would leave slavery intact in the South. It was in this re-spect like the Missouri Compromise. Douglass believed that everyAmerican citizen was responsible for the existence of slavery and thatdissolution of the Union would not free them from it.88

Mr. Garrison and his friends have been telling us that, while in theUnion, we are responsible for slavery; and in so telling us, he andthey have told us the truth. But in telling us that we shall cease tobe responsible for slavery by dissolving the Union, he and theyhave not told us the truth.8 9

Even after the Abolitionist Movement of Garrison, with its read-ing of the Constitution as proslavery, has been taken as illustratingWhite reasons, the question remains as to the status of Douglass'sinsistence that the Constitution be understood as inclusive of Blacks.It is possible that this too should count as White reasons, if we bear inmind the history of Douglass's reading of the Constitution. It is true

82 F. DOUGLASS, The Nebraska Controversy-The True Issue, in 2 LIFE AND WRITINGS,

supra note 43, at 276, 277 [hereinafter The True Issue].83 F. DOUGLASS, The Decision, supra note 60, at 417.84 F. DOUGLASS, The True Issue, supra note 82, at 279.85 F. DOUGLASS, The Decision, supra note 60, at 417.86 F. DOUGLASS, The True Ground Upon Which to Meet Slavery, in 2 LIFE AND WRIT-

INGS, supra note 43, at 367, 368.87 F. DOUGLASS, Is It Right and Wise to Kill a Kidnapper?, in 2 LIFE AND WRITINGS,

supra note 43, at 284, 287 ("Resistance is, therefore, wise as well as just.").88 F. DOUGLASS, Lecture on Slavery, No. 2, in 2 LIFE AND WRITINGS, supra note 43, at

139 [hereinafter Lecture].89 F. DOUGLASS, The Decision, supra note 60, at 416.

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that Douglass's argument was to establish American citizenship forBlacks, by birth, by the principles of the Declaration of Independence,within the meaning of the Constitution, and "by the facts of history,and the admissions of American statesmen."9 In the course of suchan argument he was not going to identify the Constitution as a docu-ment by White men for White men, even if he would sometimes stillappear to use the phrase "the American people" to mean the Whitepopulation." But Douglass was never under any illusion that arguingin terms of the intentions of the founding fathers was anything otherthan an attempt to meet "white reasons" on their own ground. Thiswould emerge from time to time when Douglass became impatient ofthe argument in terms of intentions. On one occasion Douglass's pro-phetic gifts deserted him when he asked, "What will the people ofAmerica a hundred years hence care about the intentions of the scriv-eners who wrote the Constitution? '92 On another occasion he ob-served that the argument in terms of intention seemed to be appliedmore readily against Black interests than for them. 93 On the occasionof Lincoln's Inaugural Address of 1861, Douglass insisted to the Pres-ident that the intention of the law giver was not the law becauseeverything depends on whether the intention was lawful, and "thevery idea of law carries with it ideas of right, justice and humanity." 94

The Constitution was not the last word. It was simply an instrument.In this vein Douglass warned Chief Justice Taney that the SupremeCourt of the United States could not reverse the decisions of "theSupreme Court of the Almighty." '95 "Law is in its nature opposed to

90 F. DOUGLASS, The Claims of Our Common Cause, in 2 LIFE AND WRITINGS, supra note43, at 254, 259.

91 See, e.g., F. DOUGLASS, The Decision, supra note 60, at 424:

The American people have made void our Constitution by just such traditionsas Judge Taney and Mr. Garrison have been giving to the world of late, as the truelight in which to view the Constitution of the United States.... In conclusion, letme say, all I ask of the American people is, that they live up to the Constitution,adopt its principles, imbibe its spirit, and enforce its provisions.

92 F. DOUGLASS, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery, in2 LIFE AND WRITINGS, supra note 43, at 467, 469 [hereinafter The Constiution].

93 F. DOUGLASS, The Civil Rights Case, in 4 LIFE AND WRITINGS, supra note 43, at 392,399:

When we said in behalf of the Negro that the Constitution of the United States wasintended to establish justice and to secure the blessings of liberty to ourselves andour posterity, we were told that the words said so but that was obviously not itsintention; that it was intended to apply only to white people, and that the intentionmust govern.

(emphasis in original).94 F. DOUGLASS, The InauguralAddress, in 3 LIFE AND WRITINGS, supra note 43, at 71,

76.95 F. DOUGLASS, The Decision, supra note 60, at 411.

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wrong." 96 Everything must be done so as to construe the language ofthe law strictly in favor of liberty and justice. Could it be that Blackreasons arose only with the explicit acknowledgment that slavery wascontrary to right, justice, and humanity?

Black reasons in such a context would need no argument. Thesituation would be somewhat similar to that of opposition to racism.Douglass scorned the fact that Wilson Armistead thought it necessaryto write a book of some 564 pages in an attempt "to prove what ispalpable even to the brute creation-to wit: the Negro is a man!"97

These were White reasons. Who else would need a book to state whatwould be obvious to anyone not "hardened by crime, and blinded byprejudice"? 98 By the same token, how much research does one needto do into the intentions of men born over 100 years previously inorder to learn that slavery was wrong or that Blacks were citizens?Douglass says almost nothing about Black reasons; to attempt to clar-ify the concept is a dangerous undertaking. Nevertheless, althoughDouglass often found himself marshalling arguments against slavery,he knew that there was no need for reasons among African-Ameri-cans. Nor did Blacks need to have experienced slavery directly toprotest its existence; it was sufficient that to have experienced solidar-ity with slaves. Douglass appears to allow that such solidarity was, atleast in principle, not confined to members of his own race. One hearsit perhaps in a phrase like "we, the abolitionists and colored peo-ple." 99 But Douglass also indicated that such solidarity was forged bythe experiences of prejudice that his people suffered directly. Hence,Douglass insisted that his experience was not his alone, but a sharedexperience, a Black experience: "Mine has been the experience of thecolored people of America, both slave and free."' 1 ° And if there hadbeen any divisions developing between free and enslaved Blacks,which it seems there were not, the decision in the Dred Scott casewould certainly have eradicated them. So Douglass declared to hisfellow Blacks that "[e]very one of us should be ashamed to considerhimself free, while his brother is a slave."' 10 ' There might be Whitepeople who felt the same, but Douglass was more struck by the exist-

96 Id. at 418.97 F. DOUGLASS, A Tribute for the Negro, in 1 LIFE AND WRITINGS, supra note 43, at 379,

382.98 Id.

99 F. DOUGLASS, The Decision, supra note 60,.at 412.

10O F. DOUGLASS, The Present Condition and Future Prospects of the Negro People, in 2 LIFEAND WRITINGS, supra note 43, at 243, 245.

101 F. DOUGLASS, An Address to the Colored People of the United States, in I LIFE AND

WRITINGS, supra note 43, at 331, 333.

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ence of White abolitionists who nevertheless shamelessly countedslaveholders among their friends. 0 2

It is the seriousness of the issues at stake which alone allowedDouglass to welcome a decision so counter to justice as that issued byChief Justice Taney. Although Douglass says that "[iun one point ofview, we, the abolitionists and colored people, should meet this deci-sion, unlooked for and monstrous as it, appears, in a cheerfulspirit," 13 it would have taken a rare White abolitionist to be able towelcome the thought that further sacrifices would be demanded of theBlack population of America. Would these not then be "black rea-sons?" And yet it was to secure the solidarity of Black and Whitereasons that Douglass wrote. His task was to reconstitute the "We"of slaves, former slaves, White abolitionists and, indeed, anyone whowas not directly proslavery. Such an alliance would rewrite the Con-stitution while leaving it the same. It would reconstitute the phrase"We the People" so that it would no longer read "We the White Peo-ple." "[I]f Negroes are people, they are included in the benefits forwhich the Constitution of America was ordained and established."'0 4

As Douglass insisted, "[w]here a law is susceptible of two meanings,the one making it accomplish an innocent purpose, and the othermaking it accomplish a wicked purpose, we must in all cases adoptthat which makes it accomplish an innocent purpose." 0 5

102 F. DOUGLASS, Lecture, supra note 88, at 141 ("I have marvelled at the coolness and self-complacency with which persons at the North often speak of having friends and relatives whoare slaveholders at the South.").

103 F. DOUGLASS, The Decision, supra note 60, at 412.104 F. DOUGLASS, The Constitution, supra note 92, at 477.105 Id. at 476.

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PUNISHMENT AND VIOLENCE

Alan Brudner*

I would like to address the question of the necessity of violencefor any possibility of justice by commenting on Hegel's formula that"abstract right is a right to coerce."' Abstract right is the system oflaw based on the liberty of persons to embody themselves as ends inproperty. Hegel's formula tells us that coercion is central to this sys-tem of right, that abstract right is nothing but the right to coerce, andthat the coercion intrinsic to right is justified coercion, categoricallydistinguished from the original coercion of the wrongdoer to which itresponds. Let us provisionally call justified coercion "punishment"and wrongful coercion "violence." The question we must then ask iswhether a philosophical account of punishment can succeed in keep-ing these ideas distinct; or whether there is some inner necessity bywhich punishment becomes the very violence it seeks to annul.

It is widely agreed that the utilitarian account of punishmentfails to distinguish punishment from violence. This is so not only be-cause the utilitarian's justifying factors--deterrence, social protection,and rehabilitation-may provide reasons for coercing someone irre-spective of his or her criminal desert, but also because, even where theaccused is guilty of a crime, utilitarian punishment conceives itself asthe gratification of the appetites of some at the expense of the suffer-ing of another.2 While it is possible that punishment will benefit thewrongdoer, it will be justified even if it does not, provided that theadvantages it secures for others outweigh the costs it inflicts on thevictim. This reduction of one person to an instrument for the good ofothers is, of course, precisely what characterized the criminal act asviolent. A violent act is one that violates. To violate something is todegrade it unfittingly, to accord it a value and rank lower than thatwhich it actually possesses. The criminal act was violent (whether ornot it involved physical force) because it subjugated or treated as nu-gatory a being that, as a self, was in truth an end equal in dignity tothe self of the criminal. It would have made no difference to ourmoral estimation of this act had the pleasure experienced by the ag-gressor (who might have strong sadistic preferences) exceeded the

* Faculty of Law and Department of Political Science, University of Toronto.I G. HEGEL, PHILOSOPHY OF RIGHT 94 (T. Knox trans. 1967).2 See J. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLA-

TION 170 (L. Lafleur ed. 1970).

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pain felt by the victim (who might be an ascetic), nor should it if thesame violence goes by the name of punishment.

Now, Hegel's retributivist account of punishment might seemmore successful at supporting the distinction between punishment andviolence (and I have elsewhere argued that it is).3 And yet I wouldlike to suggest that retributive punishment too is problematic in thisrespect, though in a way more revealing than the failure of utilitarian-ism of the problem of punishment per se; and that this problem, ifsoluble at all, is soluble not in the way we have traditionally sup-posed-not by a theory aiming to distinguish punishment from vio-lence, but by one that seeks to reconcile the mind to the violence thatpunishment must be.

Hegel's account of punishment is familiar enough. Suppose Aknowingly invades B's right to embody his freedom by intentionallyinjuring him either in his body or his property. Because A intention-ally infringes B's right, his act signifies not merely a mistake aboutthe particular scope or content of B's right but a denial of B's capac-ity for rights, and so an explicit challenge to the very idea of a right tobodily security or to property. The criminal act-because it is inten-tional-sets up a right to absolute liberty that denies the objectivereality of rights. The necessary implication of this denial, however, isa negation of a protected sphere of liberty for A himself. Since Awilled the infringement of rights, he also willed the negation of hisown right that the principle of his act entails. This latter negation,moreover, contradicts A's original claim of right to an unlimited lib-erty, and establishes as the sole coherent basis of right the idea of anequal or mutually respected liberty, which is the idea of law. Accord-ingly, the necessary implication of A's intentional infringement of B 'sright is a forfeiture of his own right to liberty, one that vindicates thecommon liberty as the basis of right. The necessary implication ofA's willful act is punishment.

Viewed as retribution, punishment differs from the violence ofthe wrongdoer in the following respects. First, the criminal as a ra-tional agent wills the necessary consequence of his deed, and the nec-essary consequence of crime is the nullification thereof, the logicalrecoil of the deed against the wrongdoer. Punishment is thus not ar-bitrary force externally imposed on the criminal, but rather the inter-nal nemesis of the criminal act itself. The wrongdoer believed thatlaw was a nullity; he was, however, mistaken, for his own deed em-bodies a principle that pursues and waylays him. Second, the crimi-

3 Brudner, Retributivism and the Death Penalty, 30 U. TORONTO L.J. 337, 345-48 (1980).

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nal as a rational agent wills the validation of the common liberty asthe stable foundation of his own unconditioned worth. The end ofpunishment is thus not someone else's good, but the vindication of theequal status as ends of all persons. Conceived as retribution, there-fore, punishment is distinguished from violence because it respects itsobject as an autonomous agent-as an end-inflicting nothing on himto which he does not implicitly assent.

But here we must raise a protest. And we must raise this protestnot from outside the retributivist justification of punishment but fromwithin it. The nullification of the criminal's principle may be impliedby the objectification of that principle in the criminal act; the actualcoercion of a concrete individual wrongdoer is not so implied. Onemay either punish that individual or let him alone; in either event, theprinciple of his act is self-contradictory and self-nullifying.4 Thismeans that the act (as distinct from the concept) of punishment is sofar undetermined, and hence arbitrarily imposed by the judge ratherthan implicitly willed by the wrongdoer. It is undetermined, that is,unless it is necessary that the rational be actual, or that the conceptualnullity of crime manifest itself in the world as the subjugation to therule of law of this particular wrongdoer. Let us suppose that this isthe case. Punishment as retribution will then be the process wherebythe common liberty is objectively validated as natural right againstthe claimed right of the singular will. Beginning with the idea of theisolated self as an unconditioned end, we see that the logical implica-tion of this principle is crime, the recoiling of crime against the crimi-nal, and therewith the validation of the common liberty as theontologically effective basis of right. This validation is not somethingthe common will can dispense with, for the objective confirmation ofan end cannot be inessential to its truth as an end. Indeed, the needfor such a confirmation was just the basis for the claim that the ra-tional must be actual. The realization of the common will throughcrime and its worldly nullification is thus part of its notion as an un-conditioned end, and therefore essential to its normative force. Theobsessive fascination with crime and its punishment of political socie-ties built on natural liberty attests to the central role of crime in thelegitimation and reproduction of those societies.

However, this leads us to a disquieting thought. If crime and itsdownfall are essential to the objective validity as law of the commonliberty, then insofar as the common liberty actualizes itself against theprinciple of crime, it attacks the conditions of its own validity; it sub-

4 G. HEGEL, ON CHRISTIANITY: EARLY THEOLOGICAL WRITINGS 225-26 (T. Knoxtrans. 1961).

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jugates and treats as nugatory that which is equally essential, thatwhich is necessary to its own status as a law distinct from violence. Indoing so, however, law becomes deformed. It reveals itself as a merepoint of view with the apparatus of punishment as its private force.Thus, instead of actualizing itself as an unconditioned end throughpunishment, law exhibits itself therein as an arbitrary and hostilepower, as a particular principle juxtaposed to an enemy it can repressbut never conquer. It appears, therefore, that the poles of the dichot-omy with which we began have changed places. Violence has ac-quired a right, while punishment has dissolved into violence.

Now, if we wish to call the process by which punishment be-comes its opposite a deconstruction of punishment, the question ariseswhether this process leads to a skeptical conclusion concerning thepossibility of justice. If, as Hegel says, abstract right is the right tocoerce, and if the coercion of right is indistinguishable in principlefrom that of the criminal (insofar as it too treats the essential as nuga-tory), then it seems that justice is necessarily infected with injustice.Yet a moment's reflection reveals this conclusion as a non sequitur.The deconstruction of punishment produces skepticism not about jus-tice, but about the status of abstract right as the whole of justice. Ab-stract right presupposes the fixed validity of the isolated person andexalts this person's liberty as the fundamental end whose actualizationnecessitates and justifies legal authority. Given this assumption, thecommunal basis of right can come forward only as a universal lawthat repels the claim to validity of egoistic liberty, and that can thusvalidate itself only by dominating its opposite, thereby revealing itselfas artificial and violent. However, the dialectical inversion of abstractright points to a foundation of justice-Hegel calls it ethical life-inwhich the egoistic liberty of the person is justified mediately throughcommunity rather than asserted as a fundamental principle outside ofcommunity. Instead of an absolute end to which community is ameans, individual liberty is here understood as an organic means forthe manifestation of the primacy of community, which is in turn ameans for the confirmation as a right of a self-oriented liberty.Neither community nor the individual is privileged as an end in rela-tion to the other, for each is a means for the other and so a recognizedend in itself.

What are the implications for the penal law of an idea of justiceas the reciprocal recognition as ends of community and individualpersonality? To begin with, this conception of justice brings into viewthe rationality of pardon. If egoism is necessary to the validation asnatural law of community, then the remission of punishment has a

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role to play, a role that reflects both the deservedness of the penaltyand the relative justification of the wrong as a medium for the realiza-tion of right. It is interesting that Kant, whose final standpoint is thatof abstract right, can find little place for the sovereign's right to par-don. For Kant, pardon signifies an intolerable acquiescence in thelaw of the criminal, and therefore it can be exercised by the sovereignonly with regard to crimes against itself.5 Because Kant (like Hobbes)initially absolutizes the natural liberty of the person, this liberty re-mains forever outside of and dangerous to right, its indestructibilityconditioning right as abstract, external, and hence violent. By con-trast, Hegel is at ease with the power of pardon, for the latter signifiesnot a condonation of crime but its perfect, non-violent annulment.6

By accepting the criminal's principle as a subordinate part of justice(hence limited by other elements thereof), forgiveness cancels itsvalidity as crime, the essence of which was to treat the part as thewhole. The principle thus remains, but its "evil spirit has been chasedaway."7

A foundation of right that acknowledges a subordinate place foregoism not only reveals the systemic function of mercy; it also makesroom for a punishment infected by violence. For if the normativeauthority of abstract right presupposes the revealed self-contradictori-ness of crime, it must also be true that the ethical community presup-poses the revealed self-contradictoriness of abstract right as part of itsown validation. In this sense, then, judicial violence-understood asthe Gewalt that crime necessarily brings down upon itself, or as theway in which community must manifest itself to the consciousnessthat absolutizes natural liberty-may indeed be a condition for thepossibility of justice. We might be encouraged to say, therefore, thatthe best justification of punishment does not so much attempt to dis-tinguish it categorically from violence as show how punishment maybe forgiven as violence.

5 The right to pardon a criminal ...is certainly the most slippery of all therights of the sovereign. By exercising it he can demonstrate the splendor of hismajesty and yet thereby wreak injustice ... to a high degree. With respect to acrime of one subject against another, he absolutely cannot exercise this right, for insuch cases exemption from punishment ...constitutes the greatest injustice to-ward his subjects. Consequently, he can make use of this right to pardon only inconnection with an injury committed against himself.

1. KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 107-08 (J. Ladd trans. 1965).6 See Hegel, supra note 1, at 282: "The right to pardon criminals arises from the sover-

eignty of the monarch, since it is this alone which is empowered to actualize mind's power ofmaking undone what has been done and wiping out a crime by forgiving and forgetting it."

7 Hegel, supra note 4, at 232.

1991] 1301

A NOTE ON PERFORMATIVE ACTSOF VIOLENCE

Judith Butler*

What is it that gives this inquiry into violence the quality of afundamental inquiry even as it seeks to show the constitutive impossi-bility of foundational inquiries? How is it that this inquiry begins, or,rather, what stakes out the terms of its beginning, and what is therebyproduced as its own constitutive exclusions? This is a question that Ioffer as a deconstructive operation, or, rather, what I have understoodDeconstruction to be. This inquiry has taken as its object a set of actswhich are said to be founding or positing, on the one hand, and un-founding or deforming, on the other, the performative act of a found-ing installed by and through a violence, and the aformative act, to useHamacher's words,1 which turns back upon this prior act or, rather,is that prior act's own possibility of turning against itself (as Gasch6has proposed 2). In either case, it is a set of acts that begins this in-quiry, which stakes out the terms which authorize its beginning, andwhich of necessity deauthorize other points of departure. Where arethese acts? What are they? Is it not the case that there is, prior to anyquestion of the act, an investment, perhaps another act, which investspotency and power in that second act which will then be heralded as abeginning which authorizes and/or deauthorizes foundations (ametaleptic reversal)? In this case there is a positing, as it were, priorto the act, whether performative or aformative. This presumption,this positing, is, however, not subjected to a critique, but tacitly con-stitutes the principle of identity that joins the very acts which are for-mulated on the model of self-difference.

If the performative as an act of originating intention is to be un-derstood as always already derived, then it becomes operative only onthe basis of a prior and concealed iterability.3 The question then be-comes- through what repetition of the same does the act-like charac-ter of the performative as violence or the aformative as violencebecome installed? Can we begin with such acts, with Setzungen, ordoes this beginning signify a prior investment in those acts which then

Associate Professor of Humanities, Johns Hopkins University.I Hamacher, Afformative Strike, 13 CARDOZO L. REV. 1133 (1991).2 Gasch6, On Critique, Hypercriticism, and Deconstruction: The Case of Benjamin, 13

CARDOZO L. REV. 1115 (1991).3 See J. DERRIDA, Signature, Event, Context, in LIMITED INC. 1 (1988).

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function to circumscribe the proper and profound locus of the discus-sion of violence? And does the circumscription produce an outside, asits effect, which designates the orbit of the superficial, which is com-posed of a set of "examples," specificities, particularities? Which spe-cific violences, here occluded by the fundamental inquiry even as itaffirms the impossibility of foundations, are produced as its constitu-tive outside, and which then "call" to be read back through the econ-omy which founds itself through their exclusion? For it is clear thatwhen this investigation of violence produces "examples," which arecast as the superficial, the merely ontic, they can be cited only whenaccompanied by an apology for being less profound than they oughtto be. How does this division get produced, and is it a division thatinstalls and works through a certain version of sexual differencewhich requires that women be the bearers of the particular, the exam-ple, the specific? How do I make this point without being dismissedas the bearer of the merely ontic?

What hierarchies are produced through this kind of beginning,what distinctions between the profound and the superficial? Are thesemarked by sex? How do or can they emerge within this very dis-course to disrupt its operations? Perhaps when we speak of the irre-ducibility of "contamination" or of violation, we are already caughtmetonymically in figures of bodies abjected on the basis of sexual dif-ference, sexuality, race? Is there not repeated here in such phrases, adiscourse on sexual difference which is already in place, and yet, heredisplaced, that is, whose displacement sanctions a certain essentializ-ing of violence which comes through in the talk of its ownmost char-acter and its irreducible this or that.

If the scene of an originary violence is always derived, if theperformative performs only on the basis of its iterability, aren't we, asit were, "called" to give a hearing to what repeats itself here and con-ceals the violent mechanism of its iterability as it works its power, orwhich works its power, its violence, in and through that concealment?

1304 [Vol. 13:1303

ON THE NECESSITY OF VIOLENCE FOR ANYPOSSIBILITY OF JUSTICE: A COMMENT

Jean L. Cohen*

Jacques Derrida's essay Force of Law: The "Mystical Foundationof Authority" I calls our attention to the difficulties of linking founda-tion and justice, law and morality, at the right time. After all, it wascomposed in the year 1989, a time of new beginnings, of new founda-tions laid for the rule of law, basic rights, democratic procedures; inshort, constitutionalism.2 It is thus a good moment to take his analy-sis seriously, whatever its own paradoxes which I see as, in part, con-nected to an ambiguous strategy of interpretation. Explicitly relyingon an early work of Benjamin, Zur Kritik der Gewalt,3 rather thanopenly risking a critique of Arendt's unmentioned, but obviously una-voidable essays On Revolution4 and On Violence,5 Derrida winds upcuriously suspended between the respective constructions. He main-tains Benjamin's polarity between divine and mythic violence, but likeArendt, insists on the fundamental and indissoluble link betweenrevolution and new foundations. Unlike Benjamin, he refuses to putthe figure of a pure and total revolution, the myth of the generalstrike, or the secret utopia of a society beyond law, integrated only bycommunity and solidarity, in the place of deus absconditus. Into thethus emptied ethical space enters a figure of Derrida's own: a respon-sibility for justice without limits, an "infinite demand of justice, forjustice,"6 which turns out to be justice as contrasted with law. Jus-tice, in turn, is said to be deconstruction itself; neither is decon-

* Associate Professor of Political Science, Columbia University.I Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.

919 (1990).2 I am referring to the radical transformations that took place in Eastern Europe in 1989

and to the attempts at laying down foundations for new bodies politic in these regions, bywriting new constitutions.

3 W. BENJAMIN, ZUR KRITIK DER GEWALT (1965). Oddly enough, Derrida makes noreference to either Nietzsche's On the Genealogy of Morals or to Foucault's classic essay, Nietz-sche, Genealogy, History. See F. NIETZSCHE, ON THE GENEALOGY OF MORALS 15-163 (W.Kaufman ed. 1969); M. FOUCAULT, Nietzsche, Genealogy, History, in LANGUAGE, COUNTER-MEMORY, PRACTICE 139-64 (D. Boschard ed. 1977). This is bizarre because Derrida's con-ception of the relation between law and violence, and interpretation and violence, is quite closeto Foucault's interpretation of Nietzsche's On the Genealogy of Morals in the essay justmentioned.

4 H. ARENDT, ON REVOLUTION (1963).5 H. ARENDT, ON VIOLENCE (1969).6 Derrida, supra note 1, at 955.

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structible. Of course we are told that deconstruction here is notmeant as an academic exercise but more as what the general strikewas supposed to be: a "strategy of rupture,"7 a never ending practi-cal-critical activity. But this idea is not fully developed in the paperprobably because of Derrida's insistence on another apparently moreimportant idea: He is moved by the identification of divine violenceand the imagery of annihilation "without bloodshed."8 While thispiece of theology does supply a beautiful metaphor for deconstruc-tion, it remains a tough standard to adhere to in the case of practical-critical activity that is bound by no law, old or new.

Thus, Derrida asks us to entertain (or be entertained by) an al-most unbearable contrast: on the one side divine violence, deconstruc-tion, justice and non-violence; on the other side mythic violence,foundation, revolution, law and physical violence. The Arendtianidentification of revolution with the foundation of new law and of newbodies politic, in short, with the emergence of freedom, takes placeunder the reverse sign for Derrida: that of violence and bloodshed,not freedom and solidarity. But to achieve this contrast, the only onepossible from the point of view of deconstruction, namely a critique ofnorms but without norms of its own (or with the only norm beingcritique itself), Derrida is forced to homogenize foundation, revolu-tion, law, and violence itself. A curious exercise that annihilates dif-ferentiation in the name of difference.

Let me try to rehabilitate differentiation by asking him somequestions:1. Is there a difference between power and violence, and violenceand authority?2. Is there a difference between command and law?3. Is there a difference between law and sanction, between the con-nection of law to sanction and the identity of law with sanction?4. Is there a difference between rules and laws? among policies,rules, and principles?5. Is there no difference between law as institution (empowering in-dividuals) and law as a medium of steering? Can we not distinguishbetween foundational violence and the "violence" in every act of legalinterpretation?6. Is there a difference between subjective rights and objective law?Between rights and violence?7. Is there a difference between contract as promise and binding,and contract as fear of (generally unlikely) enforcement?

7 Id. at 987.8 Id. at 1027.

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8. Is there a difference between agreement based on solidarity andon strategic compromise? Is their contrast really identical to Benja-min's differentiation of private and public forms of communication?9. Is there a difference between democratic and authoritarian acts offounding a polity, between authoritarian regimes and democratic con-stitutions, and between democracy without limits and democracywith self-limitation? Or is it really the case that democracy is only aworse form of authoritarianism, worse because veiled?10. Finally, is there a difference between the "creative" violence offoundation and violence as murder, torture, incarceration?

To this last question obviously Derrida wants to answer, yes,there is a difference. But how can he if his only fundamental, rigiddistinction between divine and mythic violence places foundation andviolence without bloodshed on different sides. But we saw in 1990that it is possible to separate these often linked meanings of violence.The talk of peaceful, even gentle, revolution was not and is not yetunjustified. Such an event, however, becomes inexplicable if we differ-entiate only between justice and law, but not law and violence. With-out addressing my first nine questions, in other words, there is nogenuinely positive answer to the tenth, outside the mysteriumtremendum of a fallacious political theology.

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CIVIL DISOBEDIENCE AND DECONSTRUCTION

Drucilla Cornell*

I want to read Derrida against the current. I am going to ad-dress Deconstruction as Deconstruction has made feminine differenceand, more generally, the question of sexual difference, central to phi-losophy. But I am going to do so with the following specific question.in mind: Do women have what John Rawls has called a "naturalduty" to obey the law' if they lose such fundamental rights as abor-tion? I hope Derrida will forgive me for not engaging solely with hisrecent text on the mystical foundation of authority,2 because I insteadwant to offer a more comprehensive interpretation of what I thinkDeconstruction has to offer us as legal theorists.

But I must begin with a brief excursion into the work of JacquesLacan,3 because, as I will show, Derrida's specific intervention intoLacanianism is crucial to the legal question I have posed. Lacanteaches us the very simple lesson that the entire order of patriarchalculture divides us into two sexes, male and female, in the form of ahierarchy which privileges the masculine. It does so through linguis-tic structures that are so deep that the Law of the Father not onlybreaks up the mother/child dyad, but does so to the degree that anyrelationship to the mother is repressed in the unconscious as the imag-inary. The entire concept of identity takes place through this repres-sion of the mother. The patriarchal order that Lacan and writerssuch as Luce Irigaray analyze-and, in Irigaray's case, from a specifi-cally feminist criticism of Lacan's acceptance of the inevitability ofthis order 4 -denies the recognition of the mother so that women can-not affirmatively identify with their "sex." This is why Irigaray says

Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University. This com-ment is dedicated to the memory of Mary Jo Frug, whose love and friendship I will alwaysmiss and whose brutal murder is a tragic reminder of how pervasive violence to women is inour society. I also want to thank Rodolphe Gasch6, Agnes Helter, and Alan Wolfe who eachin their own way made me rethink the moment of universality in Derrida's deconstructiveintervention into Levinas' understanding of the ethical relationship. As always, I must thankA. Collin Biddle and Deborah Garfield for their research assistance, and their constant intel-lectual enthusiasm and engagement.

I J. RAWLS, A THEORY OF JUSTICE 114-17 (1971).2 Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.

919 (1990).3 J. LACAN, FEMININE SEXUALITY: JACQUES LACAN AND THE ECOLE FREUDIENNE (J.

Mitchell & J. Rose eds. 1985).4 L. IRIGARAY, SPECULUM OF THE OTHER WOMAN (G. Gill trans. 1985) [hereinafter L.

IRIGARAY, SPECULUM]; L. IRIGARAY, THIS SEX WHICH Is NOT ONE (C. Porter trans. 1985).

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that any concept of a subject is always on the side of the masculine.'Can there be such a "thing," then, as a feminine subject of right?

Not within the Lacanian schema where all there is is the projection ofWoman as an imaginary figure, in which women are the signifiers ofmen's desires-as mommies, whores, mistresses, and as those who canbe erased-and in which our violation and our erasure is not noticedor even commented upon. Under this analysis, the "rights of man"are just that: the rights of man, because the subject of right is, bydefinition, masculine.

In a recent text, Marguerite Duras remarked that, "for seventy,eighty, ninety years no play by a woman had been performed [inParis] or perhaps in the whole of Europe. I found that out for myself.No one ever told me. And yet it was there for all to see."' 6 The era-sure that was so painful for Duras was not just the fact that no playshad been produced, but that no one noticed.

Similarly, in the field of law, the lack of notice of women's suffer-ing has prompted the movement now called feminist jurisprudence.Writers like Robin West and Catharine MacKinnon have tried toshow us that the erasure of specific harms to women-think, for ex-ample, of date rape-was "there" to "see," but was not seen becauseit was "unnoticed" by the official definitions of the legal system.7 Thelack of notice in the arts and in the law also expresses Jean-FranqoisLyotard's profound understanding of the "differend" as that whichcannot be articulated and, therefore, is not "seen." ' The horror is notjust in the facts that MacKinnon constantly reminds us of-for exam-ple, that a woman is battered every fifteen seconds in the UnitedStates9-but that our legal system has no mechanism to take notice ofthat reality as an overwhelming "public" problem demandingeradication. 10

As has often been noted, very few women who file sexual harass-ment suits ever take their case to trial. More specifically, what has

5 IRIGARAY, Any Theory of the "Subject" Has Always Been Appropriated by the "Mascu-line," in L. IRIGARAY, SPECULUM, supra note 4, at 133-46.

6 M. DURAS, PRACTICALITIES: MARGUERITE DURAS SPEAKS TO JtROME BEAUJOUR 10-

1 (B. Bray trans. 1990).7 See C. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1989); C. MACK-

INNON, FEMINISM UNMODIFIED: DISCOURSES ON LIFE AND LAW (1987) [hereinafter, C.MACKINNON, FEMINISM UNMODIFIED]; West, Jurisprudence and Gender, 55 U. CHI. L. REV.1 (1988); West, The Difference in Women's Hedonic Lives: A Phenomenological Critique ofFeminist Legal Theory, 3 WiS. WOMEN'S L.J. 81 (1987).

8 J.-F. LYOTARD, THE DIFFEREND: PHRASES IN DISPUTE (G. Van Den Abbeele trans.1988).

9 Robb, A Refuge From Abuse, Boston Globe, Aug. 6, 1990, at 31, col. 1.10 C. MACKINNON, FEMINISM UNMODIFIED, supra note 7, at 169.

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only too rarely been discussed is the way in which the plaintiff isturned into the defendant through the use of sexual humiliation. Theplaintiff is put in the position of having to defend herself against the"charges" that are made against her. Rather than charging the de-fendant, she is the one who becomes charged. What is her crime?: hervery "sex." Lacan helps us understand how sexual shame can be usedat all points to silence those women who try to defend their own posi-tions, whether they are rape victims, battered wives or people likemyself who sued because they were denied tenure. In other words,Lacan explains the basis of sexual shame in women through his analy-sis of the way in which the gender hierarchy perpetuates inequality.

Arendt has written that the Athenian dream of a participatorydemocracy is a dream long since gone. It might seem strange to quoteArendt in a feminist context. She continually denied any connectionbetween her own writing and feminism. But what I am suggesting is avery different interpretation of Arendt's own pessimism over the re-turn to "true" political, participatory democracy which would recog-nize all citizens as equal. I want to offer a different perspective thatmay explain the validity of her pessimism, even if from within a philo-sophical and psychoanalytic context she would never have acceptedthis view. (Although I would like to add the caveat that we cannotretrospectively know how Arendt would have responded to the psy-choanalytic feminist analysis I offer here, because it was not presentfor her to incorporate into her discourse.) We, as we all know, are, inthe end, the products of our time. Ironically, Arendt's denial of femi-nism can itself be read as an expression of the devalorization and re-pudiation of the feminine Lacan describes, which is not to say thatthere is not in Arendt, in spite of her own comments, a unique femi-nine voice.

But I want to return to her pessimism about the realization of aparticipatory democracy of equal citizens in modernity, let alone inwhat now gets called postmodernity." Lacan can be interpreted to

II I have suggested that the modem and the postmodern should be understood allegori-

cally. I have critiqued the conception of a telos as if it were to distinguish the modem and thepostmodem as periods of history. Cornell, Post.Structuralism, the Ethical Relation, and theLaw, 9 CARDOZO L. REV. 1587 (1988). I borrow the word constellation from TheodorAdomo and from my discussion of what he meant by constellation as I described it earlier inThe Ethical Message of Negative Dialectics, in SOCIAL CONCEPT 3-38 (1987).

I write what gets called postmodernity to indicate my skepticism about the very idea ofthe postmodem. The distinction implicitly turns on the acceptance of criteria that can success-fully distinguish historical periods from one another. For example, the distinctions betweenthe premodern and the postmodern has often been thought to rest on the telelogical develop-ment from mythos to logos. It is undoubtedly the case that writers that get grouped aspostmodem-writers as diverse as Emmanuel Levinas, Jacques Derrida, and Maurice

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teach us that this dream will remain lost until we recognize the truthof the fact that the subject is masculine, and that the masculine sub-ject mirrors himself through the woman. The woman is mirroredthrough the man's imaginary as whore, mistress, wife, whatever, butshe has no reality in herself. She is certainly not, in the recent lan-guage of dialogism, an equal citizen of dialogue. So when we talkabout dialogue and dialogism, and civic republicanism, we also haveto talk about what the conditions would be for the creation of a truesubject of dialogue who could engage equally with women as citizens.If women endorse the dream of a dialogic, participatory democracy,and I do, then Lacan is relevant in helping us think about the condi-tions of its possibility. He consistently reminds us of how the psychi-cal fantasy of woman blocks men from seeing women as equals.

We can now understand why we have to challenge dialogism if itis conceived as the "conversation of mankind." This challenge alsotakes us to Derrida's specific intervention into Lacan.1 2 Once we un-derstand this intervention, we can see why Seyla Benhabib is wrong to

Blanchot-reject the idea that the movement from mythos to logos has been or can be com-pleted. Indeed, they have ethically critiqued the out-of-hand rejection of myth as regressive.(I have argued, indeed, that myth is a powerful critical tool in feminist theory.)

Often postmodernity on the part of its critics gets identified with a set of "rejections": therejection of reason, the rejection of universal ideals of justice, etc. Yet Derrida, in the testpresented at this conference, which was the basis for the roundtables, insists that there is"[n]othing seems... less outdated than the classical emancipatory ideal." Derrida, supra note2, at 971. So the reduction of the postmodern to a set of rejections is clearly a misinterpreta-tion. Several years ago I argued that the relationship between the modem and the postmoderncould be understood as a constellation, borrowing the phrase from Adorno. But the transfer-ring of Adorno's, and certainly Walter Benjamin's, metaphor of a constellation has difficulties.Constellation is obviously a term borrowed from astrology. The relevance of its origin is that,as a metaphor, it is meant to indicate the deciphering of what is already "there." A constella-tion is not constructed or designated by a set of normative ideals or their rejection, the crux ofthe debate over how one defines historical periods. More specifically, in Adorno, the metaphorof the constellation has ethical content. Constellation is associated with the critique of ideal-ism in which the object is smothered by a conceptual apparatus. A constellation is how one, inother words, lets the object speak.

Historical periods are not just deciphered, they are always in part constructed, and as wehave seen in the recent debates, normatively constructed. As a result, the metaphor of theconstellation is problematic in the context of this debate. But does that mean that there isnothing to it? The answer, I think, is no. I have suggested that the "postmodern" should beunderstood as an allegory, and, as an allegory, an ethical insistence on the limit to "positive"descriptions of the principles of modernity as the "last word" on truth, justice, rightness, etc.

In connection with the allegory are figures and figurations that depict that limit. Forexample, I have painted Derrida's own ethical positioning through the figure of the chiffonnier.The more precise term then, rather than constellation, would be configuration through theallegory of the ethical limit on any "positive" normative description of what constitutes mo-dernity. (Note that I have not used the word "postmodern." I believe that the debate betweenmodernism and postmodernism, because of its historical connection to the aesthetics, shouldnot be confused with the political, ethical debate I have just described.)

12 Derrida, supra note 2, at 995.

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suggest that Derrida envisions the politics of the male warriors withtheir guns, ready to challenge the rulers.' 3 Instead, his is an ethicaland political exposure of masculine superiority as a "sham." Derridacontinually pokes fun at the machoism of the so-called real man. Heknows a "dick" when he sees one and he knows the limit of its mean-ing. He agrees with Lacan that it is not pre-given libidinal "drive" oranatomy that causes masculine privilege and the corresponding sub-jection and silencing in women. Instead, patriarchy perpetuates itselfthrough the linguistic structures and cultural conventions that propup patriarchy and have been repeated until they are melted into theunconscious and, indeed, even are the unconscious. Derrida, how-ever, tells us that Lacan's insight into the relationship between signifi-ance and jouissance 4 undermines his own pessimistic politicalconclusions. 5 Derrida argues that the very slippage of language,which breaks up the coherence of gender identity, makes it possiblefor us to undermine the rigid gender divide that has made dialoguebetween men and women impossible and the acceptance of violencetoward women not only inevitable, but also not "serious."

Let me now try to connect Derrida, Lacan, and Levinas. Why isLevinas relevant to Derrida's intervention into Lacan? Levinas chal-lenges the idea that justice can ever be identified with any descriptiveset of conditions or rights. Justice cannot be reduced to convention,no matter how conceived, and certainly not to the current "conversa-tion of mankind." Levinas's messianic conception of justice demandsthe recognition of the call of the Other, which always remains as a calland can never be fully answered. Put somewhat differently, and thisis exactly the notion of justice as aporia that Derrida emphasizes inhis own text,I6 justice is the limit to what is, not its endorsement.

Once we introduce Levinas's messianic concept of justice, we canthink more profoundly about Derrida's intervention into Lacan. Iwould argue that the "conversation of mankind" has been based on amasculine imaginary which erases women, and so, in fact, there is nodialogue whatsoever as long as the erasure of woman is accepted aspart of our normal engagement with one another as citizens. Until we

13 Benhabib, The Call to the Ethical: Deconstruction, Justice and the Ethical Relationship,13 CARDOZO L. REV. 1219 (1991).

14 As Jacqueline Rose goes on to explain, "[t]he concept of jouissance (what escapes insexuality) and the concept of signiflance (what shifts within language) are inseparable." Intro-duction-I, in J. LACAN, supra note 3, at 52.

15 Throughout his work, Lacan uses the term signifiance to refer to that "movement inlanguage against, or away from, the positions of coherence which language simultaneouslyconstructs." Id. at 51.

16 Derrida, supra note 2, at 959-7.3.

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challenge the idea that the masculine imaginary projects us as wife,mistress, or whore, and does not allow us to have our own elaborationof ourselves as women, then we cannot speak of women as equal citi-zens. This objection to dialogism turns me to Derrida's criticism ofFred Dallmayr. Dallmayr is concerned about the emphasis on vio-lence for any possible justice. 7 I interpret Derrida's objection toDallmayr as emphasizing the danger of increasing violence by erasingthe reality of its presence. When there is not peace, we should notpretend there is. Certainly the patriarchal order does not provide a"peaceful" world for women. The very recognition of the violence,then, can be understood as a step towards its mitigation. But we alsoneed to emphasize another dimension, crucial to the intersection ofLacan, Derrida, and Levinas.

Levinas argued for the asymmetry of the ethical relationship.But Derrida demonstrates that ethical asymmetry must be based on aphenomenological symmetry if it is not to be reduced to another ex-cuse for domination and, thus, for violation of the Other. My addi-tion is that phenomenological symmetry demands the specificrecognition of the symmetry of woman as ego, and that this is pre-cisely what the psychical fantasy of woman described by Lacan makesimpossible.'8 Without phenomenological symmetry, the asymmetryof the ethical relationship is nothing but violation of woman onceagain, which is why, on one interpretation, there is an indelibleuniversality upon which Derrida insists, even if it cannot be positivelydescribed as a set of properties that define the subject. Such a positivedefinition, if one accepts that the masculine is defined as the subject,would perpetuate, not undermine, the gender hierarchy. But let mereturn to the relationship between phenomenological symmetry andethical asymmetry. I am arguing that Derrida's intervention demandsphenomenological symmetry as possible and necessary to the aspira-tion to the ethical relationship as ethical. Very simply put, to thinkthe ethical relationship, one has to think the question of sexual differ-ence as it has been constituted through the gender hierarchy.

We have spoken now about a world in which whenever we talkabout the natural duty to obey the law we have assumed that womenhave equal rights. When we speak about a natural duty to obey thelaw, some degree of equality is assumed. Derrida has shown us that

17 Dallmayr, Justice and Violence: A Response to Jacques Derrida, 13 CARDOZO L. REV.

1237 (1991).18 When I say the "psychical fantasy of woman" I am referring to what Lacan means when

he says that what man "relates to is the objet a, and that the whole of his realisation in thesexual relation comes down to fantasy." A Love Letter, in J. LACAN, supra note 3, at 149, 157.

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the relationship between phenomenological symmetry and the ethicalasymmetry values the Other as different, indeed as difference. But Iam now taking this intervention into what, at first glance, seems to bea very foreign context, the context of equality. The recognition ofphenomenological symmetry can be understood as the very basis forany theory of equality. Yet, if Lacan is right, and I believe he is, theonly way Woman exists in the gender hierarchy is not as a phenome-nological ego, but as an imaginary projection. Our duty to obey thelaw demands that we be equal, in the sense the we not be denied phe-nomenological symmetry.

Thus, for me, equal citizenship turns on the phenomenologicalsymmetry that demands the end of violation of women. Derrida'scontribution to legal and political philosophy and, more specifically,his interventions into Lacan and Levinas show us that unless we chal-lenge the reduction of woman to an imaginary fantasy, to the phenom-enologically asymmetrical other, there will be nothing but theperpetuation of violence and violation of women. The loss of our civilrights is not a political coincidence. In a legal system which is sys-tematically taking away the civil rights that so many of us have foughtso hard to win, women have no natural duty to obey the law. There isno claim, in my opinion, to validity or legitimacy in a legal systemwhich sweeps away the right of abortion and the right of so much elsethat we fought in our time to gain. This sweeping away of our rightsreflects the denial of the phenomenological symmetry of women. Thefeminist alliance with Deconstruction is precisely Derrida's specificintervention into the work of Lacan and Levinas.

1991] 1315

CARNO-PHALLOGOCENTRISM

Gary L. Francione*

In his essay, Force of Law: The "Mystical Foundation of Author-ity, "' Jacques Derrida correctly asserts that carnivorous sacrifice isessential to the structure of subjectivity and vital to our modernity.2

He also establishes that this notion of sacrifice is particularly applica-ble to our treatment of nonhuman animals, and he labels our injusticeor violence toward nonhumans "carno-phallogocentrism." 3 Derridaconcludes that animals are not the subjects of the law or of law.4Although Derrida is most certainly correct to maintain that the statusof nonhumans in our legal system is problematic, I do think thatnonhumans may, in a sense, be regarded as legal subjects. Neverthe-less, nonhumans will still fail to prevail in most conflicts with humansbecause of complex social and legal attitudes about the nature ofnonhumans as legal subjects. I wish to stress that I recognize thatDerrida's comments were made merely as an illustration of other pri-mary points in his essay, and that, in any event, Derrida does not holdhimself out as one familiar with the intricacies of American regula-tory law. Accordingly, I am using Derrida as an interlocutor in orderto explore briefly some of these social and legal attitudes.

With respect to nonhuman animals, we routinely celebrate thesacrifice about which Derrida speaks when we experiment on animalsin the laboratory5 or consume them at our dinner table.6 Indeed, ourdisrespect for nonhumans is so profound that virtually any humaninterest-however trivial-is sufficient to trump any animal interest-however significant. For example, although no one would seriouslysuggest that a fur coat serves any value apart from human vanity, thatvalue is apparently sufficient to justify the deaths-by means quiteunpleasant-of millions of animals every year.7 Rodeos and bull-

0 Professor of Law, Rutgers University School of Law-Newark. I wish to thank mycolleague, Professor William W. Bratton, for his comments on an earlier draft of this essay.This essay is dedicated to Professor Drucilla Cornell.

I Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.919 (1990).

2 Id. at 951-53.3 Id.. at 953.4 Id. at 951.5 See, e.g., P. SINGER, ANIMAL LIBERATION 25-94 (2d ed. 1990).6 Id. at 95-157.7 See, e.g., Regan, Vacant Vaults, in 2 THE ANIMALS' VOICE 24-32 (1989). Animals used

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fights, both of which involve unspeakable animal suffering, can boastno greater value than human entertainment. Despite constant andwidespread public reaffirmation that "unnecessary" cruelty shouldnot be tolerated, it appears as though any exploitation of nonhumansby humans is, by definition, "necessary."

Humans can perform acts that cause suffering to nonhumans,but, as Derrida correctly asserts, animals cannot be regarded as vic-tims of crimes, such as murder or rape.' That is not to say that we donot, on some level, recognize that we can functionally "murder" or"rape" a nonhuman. For example, dairy farmers use a device called a''rape rack" that restrains a cow forcefully while she is impregnatedby a bull or through artificial insemination. We recognize that thecow is being subjected to the experience against her will and must berestrained accordingly. We recognize that our treatment of the cow isanalogous to "rape." But since the cow is not a subject of the law, shecannot be "raped" in a legal sense.

Derrida concludes that a nonhuman cannot be regarded as "asubject of the law or of law (droit). According to Derrida, a nonhu-man, understood as "the living thing as living and nothing else,"' 0 issimply not a part of the legal system. Derrida recognizes that a criticof this position may respond that, at various times in human history,animals have been regarded as subjects of the law. For example, sucha critic might point to the trial and execution of animals for the com-mission of "crimes. '""I Surely, such trials were anomalies and cer-tainly cannot be said to reflect an animal rights perspective. Althoughanimals were regarded as morally responsible for their acts (and thusdeserving of punishment), they were at the same time eaten, worn,and used as beasts of burden. It is difficult to reconcile the view thatanimals are morally responsible agents with the view that animalsmay still be exploited in a way that no other morally responsible agentis exploited. Thus, the occurrence of animal trials cannot be viewedas a significant exception to the proposition that animals are not re-garded as subjects of the law.

The critic may also point to the present day phenomenon of leg-islation that explicitly protects animals from cruel treatment or un-

in the production of fur coats are either caught in devices like leghold traps, which consist ofpowerful steel jaws that close around the limb or limbs of an animal and prevent it fromescaping, or are raised on "fur farms" and then electrocuted or gassed.

8 Derrida, supra note 1, at 951.

9 Id. at 951.10 Id.S1 See generally E.P. EVANS, THE CRIMINAL PROSECUTION AND CAPITAL PUNISHMENT

OF ANIMALS (1906).

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necessary death, and that arguably establishes nonhumans as subjectsof law. For example, every state has a law that forbids cruelty toanimals, 12 and the federal government has a complex set of laws andregulations that concern the treatment of nonhumans. 13

Derrida acknowledges the existence of such laws, but argues thatenforcement of such laws is rare. He thereby classifies these laws withoccurrences like animal trials, and states that lawsuits involvinganimal protection legislation are "either archaisms or still marginaland rare phenomena not constitutive of our culture."14 AlthoughDerrida is correct to point out that, for example, lawsuits broughtunder anticruelty statutes are, indeed, very rare, I think it may bemisleading to regard animal protection legislation as similar to animaltrials-at least as far as the common-law tradition is concerned. Thatis, I think that animals are made subjects of the law or of law in somesense. The difficulty is that despite their status as legal subjects, ourmoral thinking about nonhumans is very confused and, despite whatmay be good intentions, is virtually certain to ensure that nonhumaninterests will never trump what is perceived to be competing humaninterests.

Although there was no common-law crime of cruelty to ani-mals,15 the common-law rule was changed in 1641 when the Massa-chusetts Bay Colony, as part of its first legal code, prohibited "anyTirrany or Crueltie towards any bruite Creature which are usualliekept for man's use."1 6 This marked the first instance of animal pro-tection legislation in this country. By 1913, every state and every ter-ritory, as well as the District of Columbia, had enacted some form ofprotection for nonhuman animals. British legislation to protect ani-mals was firmly in place in 1876.17 Today, the federal governmenthas a complex set of laws that concern numerous animal-related is-

12 See, e.g., CAL. PENAL CODE §§ 597, 597a-597z (West 1982); FLA. STAT. ANN.

§§ 828.01.-828.26 (West 1976); ILL. ANN. STAT. ch. 8, 701-16 (Smith-Hurd 1975); N.J.STAT. ANN. §§ 4:22-1 to -55 (West 1973); N.Y. AGRIC. & MKTS. LAW §§ 350-76 (McKinney1972); TEX. PENAL CODE ANN. § 42.11 (Vernon 1989).

13 See infra notes 18-22 and accompanying text.14 Derrida, supra note 1, at 951.15 D. FAVRE & M. LORING, ANIMAL LAW 122 (1983) ("At common law, there was no

restriction on the treatment of the animals themselves, and thus no common-law crime ofcruelty.").

16 R. NASH, THE RIGHTS OF NATURE 18 (1989); Leavitt, The Evolution of Anti-CrueltyLaws in the United States, in ANIMALS AND THEIR LEGAL RIGHTS 13 (2d ed. 1970).

17 In 1876, Parliament passed the British Cruelty to Animals Act. Cruelty to AnimalsAct, 1876, 39 & 40 Vict., ch. 77, §§ 1-22. This legislation was not the first British law prohibit-ing cruelty to animals. In 1822, Richard Martin, a prominent humanitarian, pushed throughto adoption a law that prohibited cruelty to larger domestic animals. See R. NASH, supra note16, at 26-27.

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sues, including vivisection,'1 humane transportation of animals,19 hu-mane methods of livestock slaughter, 20 protection of wild and free-roaming horses and burros, 21 and protection of marine mammals.22

These laws are based upon very different theoretical considera-tions from the legal doctrines that permitted the trials of animals.Animal trials made sense only in a context in which nonhumans wereendowed-confusingly and inconsistently-with human intelligenceand human moral sensibilities. Laws protecting nonhumans fromcruel treatment or unnecessary death generally recognized that ani-mals were "dumb" creatures that needed legal protection. Althoughsuch laws cannot be said to confer rights on nonhumans, there can beno doubt that at least as far as the written laws are concerned, theselaws did establish at least some nonhumans as subjects of the law or oflaw in some sense.

Moreover, I think that Derrida may underestimate the extent towhich, on some level, most people accept that nonhumans are entitledto some type of legal consideration. That is, unlike the thinking thatwas responsible for the occurrence of animal trials, concern aboutprotecting "dumb animals" is, to some degree, a widespread socialphenomenon and may be considered as "constitutive of our cul-ture. ' 23 Although there are wildly different understandings of whatconstitutes "cruelty," it is clear that most people regard "cruelty" toanimals as something properly addressed by the law.

In a sense, then, animals are subjects of the law. One simply can-not ignore the considerable body of law that serves to provide someform of protection to nonhumans. One cannot ignore that most peo-ple think that nonhumans are entitled to some form of legal protec-tion. But Derrida is also correct to focus on nonhumans as a classthat is, in a practical sense, left outside the legal system. The problem,however, is not that nonhumans are not subjects of the law. Theproblem is that the status of nonhumans as "sentient property" guar-antees that virtually anytime and everytime there is a conflict betweenhuman and nonhuman interests, humans will prevail.

There are at least three reasons why, even if nonhumans are re-garded as subjects of the law, they will virtually never prevail in con-flicts involving human interests.

18 See 7 U.S.C. §§ 2131-2157 (1988) (originally passed 1966).

19 See 45 U.S.C. §§ 71-74 (1982) (originally passed 1906).20 See 7 U.S.C. §§ 1901-1906 (1988) (originally passed 1958).21 See 16 U.S.C. §§ 1331-1340 (1988) (originally passed 1971).22 See 16 U.S.C. §§ 1361-1407 (1988) (originally passed 1972).23 Derrida, supra note 1, at 951.

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The first reason is that in many cases, we deem the human inter-est at stake so great as to outweigh the nonhuman interest withoutany further consideration. That is, although we may recognize thenonhuman as a subject of the law, we nevertheless conclude that thehuman interest that is perceived to compete with the nonhuman inter-est is of such magnitude that the nonhuman interest must be "sacri-ficed." For example, although there is a great deal of moral concernabout the use of nonhumans in laboratory experiments, most peoplestill think that such use is "necessary" and morally justifiable becauseof the supposed benefits that these experiments produce. Even ifanimal experiments do produce beneficial consequences for humans-a controversial proposition at best 24-there are serious flaws with theposition that the benefits of exploitation to the exploiter may justifythat exploitation. Our species bias, which is no more defensible than abias in favor of a particular race or sex, leads us to underestimate ormiscalculate nonhuman interests and to overestimate humaninterests.25

Species bias encourages us to believe that the species of a being isa morally relevant criterion in determining who is a member of ourmoral community, or, assuming that we agree that a being is a mem-ber of that community, the weight that we should accord to that be-ing's interest. Humans frequently assume that nonhumans lackcertain human characteristics, such as the ability to think and reason,speak, or have complex personal relationships, and that this supposedlack of "important" characteristics entitles us to accord less Weight tononhuman interests. Assuming that nonhumans do, in fact, lackthese characteristics,26 there are, of course, humans who also lackthese characteristics, yet we would never dream of using, for example,severely brain damaged humans in experiments or eating suchhumans. On the contrary, our conception of "civilized" behavior gen-erally requires that we accord such persons protection from exploita-tion because of the "defective" characteristic. Our different treatmentof nonhumans can be explained by our species bias: even though ahuman and nonhuman may be similarly situated with respect to theputative "defect," the mere fact of a difference in species entitles us to

24 There is a growing body of literature which suggests that the benefits of animal experi-mentation are illusory or, at best, highly exaggerated.

25 This species bias is often referred to as "speciesism." See P. SINGER, supra note 5, at 6.

The expression "speciesism" was originally coined by British psychologist Richard Ryder. Id.at 269.

26 There is mounting evidence that certain nonhumans, especially chimpanzees, are quite

capable of thought, reasoning, language, and autonomous action. See D. RADNER & M.RADNER, ANIMAL CONSCIOUSNESS 117-26 (1989).

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accord greater weight to the human interest than to the nonhumaninterest. This elevation of species to a morally relevant characteristicis no different from the elevation of race or sex to such a characteris-tic. 27 As Bentham argued, "the question is not, Can they[nonhumans] reason, Can they talk? but, Can they suffer? ' 28

The second reason why nonhumans will virtually never prevail ina conflict between human and nonhuman interests is that nonhumansare not holders of rights.29 Rather, humans have property rights innonhumans. Because nonhumans are generally regarded as the prop-erty of nonhumans, and because property rights are very much "con-stitutive of our culture," any particular conflict between nonhumanand human interests must invariably involve at least one human inter-est that is protected by a right-the right of property ownership. Theinvariable existence of this right in any particular conflict situationguarantees that the balance will virtually always tip in favor of thehuman interest, even when, unlike the example of experiments usinganimals, any competing human interest may be reasonably character-ized as only "trivial." For example, the human interest at stake in"captive release" hunting programs is, at best, extremely slight andcannot be characterized as anything other than pure amusement.3 °

The nonhuman's interest in not being used for such purposes is obvi-ously very great. Nevertheless, such programs are protected by stat-ute in many states.3 1

Derrida seems to think that the animal protection legislation thatexists in the United States and in other western countries providesrights for animals. 2 This is not true. Animal protection legislationestablishes that in certain cases, humans have duties to nonhumans,but this legislation says nothing about the status of nonhumans asrightsholders. Indeed, if there is any statement that accurately de-scribes the status of nonhumans in our legal system, it is not thatnonhumans are not subjects of the law or of law, but rather that

27 For a more detailed description and discussion of speciesism, see R. RYDER, ANIMAL

REVOLUTION 5-8, 309-36 (1989); P. SINGER, supra note 5, at 1-23.28 J. BENTHAM, THE PRINCIPLES OF MORALS AND LEGISLATION ch. 17, § 1 (1789).29 See T. REGAN, THE CASE FOR ANIMAL RIGHTS 266-398 (1983).

30 A "captive release" hunting program involves raising nonhumans-usually birds ofsome sort-and releasing the animals to be shot or otherwise killed by "hunters." Often, thetarget animals, which are domesticated, do not even try to escape the "hunter," and, indeed,will often approach the "hunter" and thus facilitate their own death.

31 See, e.g., CAL. FISH & GAME CODE § 3006 (West 1984); FLA. STAT. ANN. §§ 372.12.-

372.16. (West 1988); ILL. ANN. STAT. ch. 62, 3.27-3.29 (Smith-Hurd 1989); N.J. STAT.ANN. §§ 23:8-1 to -3 (West 1940); TEX. PARKS & WILD. CODE ANN. §§ 44.013-.0135 (Vernon1976).

32 Derrida, supra note I, at 951.

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nonhumans are legal subjects without legal rights. When legal ques-tions concerning conflicts between human and nonhuman interestsare raised, the status of the nonhuman as a legal subject without legalrights guarantees that the human interest-however trivial-willprevail.

This is, of course, not to say that nonhumans should not haverights. As Tom Regan argues persuasively, it is our own species biasthat leads us to deny at least certain rights to nonhumans. 3 Regancontends that many nonhumans possess inherent value by virtue oftheir status as subjects who experience life, and value their own livesirrespective of the value assigned to their lives by humans. Neverthe-less, humans have quite arbitrarily denied all rights to nonhumans.With virtually no exception, nonhumans are regarded as the propertyof humans-as a form of wealth that humans have the right to ownand control. Although animal protection legislation serves, in somesense, to limit the use to which nonhumans as property may be put,such legislation acts more as a normative directive to the propertyowner to act without "unnecessary" cruelty and with regard to the"welfare" of the nonhuman. The system is, however, generally un-willing to establish the limits of permissible behavior towardnonhumans because to do so would limit the use of property wherethe consequences of misuse do not adversely affect other humanbeings.34

The third reason that accounts for why nonhumans will virtuallynever prevail in conflicts with humans, even if nonhumans are re-garded as subjects of the law, concerns the peculiar status of the non-human as victim. Jean-Frangois Lyotard writes that "[it is in thenature of a victim not to be able to prove that one has been done awrong. ' 35 According to Lyotard, the "perfect crime" is not one inwhich the victim or the witnesses are killed, but rather one in whichthe witnesses are silenced, the judge is disinterested, and the testi-

33 See generally T. REGAN, supra note 29, at 269-336. For a more concise statement ofRegan's position, see Regan, The Case for Animal Rights, in IN DEFENSE OF ANIMALS 13-26(P. Singer ed. 1985).

34 There are, of course, important relationships between the first two reasons. For exam-ple, one may be led to accord less weight to the interest of a nonhuman because that nonhu-man has no rights. Similarly, the species bias referred to above may (and probably does)account for why we do not accord rights to animals. There are also important differences. Autilitarian who rejects the notion of rights would restrict her argument only to the conse-quences of actions and would argue for (or against) animal protection based solely on thoseconsequences, and without regard to deontological concerns. See, e.g., P. SINGER, supra note5, at 25-94.

35 J.-F. LYOTARD, THE DIFFEREND: PHRASES IN DISPUTE 8 (G. Van Den Abbeele trans.1988).

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mony is successfully characterized as inconsistent. In such a situa-tion, the victim is unable to prove that she has been the victim of thewrong.

In cases of animal exploitation, the nonhuman has suffered dam-age, but, beyond that damage, the nonhuman has also suffered thetype of wrong about which Lyotard speaks. Nonhumans are unableto speak for themselves. Although their ability to speak for them-selves would not necessarily save them from being victims (humansmay be made to be victims if no one else will speak on behalf of theinjured party), their inability to speak facilitates their victim status. Ahuman victim may at least try to persuade witnesses not to be si-lenced; a human victim may at least try to prevent the testimony frombeing made to appear inconsistent. In contrast, a nonhuman victimhas absolutely no opportunity to do anything to escape its status asvictim. The only way in which a nonhuman can avoid its status asvictim is to have a human who will serve as witness to the damageinflicted on the nonhuman. Unfortunately, human witnesses to non-human damage are not often inclined to provide testimony on behalfof the nonhuman, and, accordingly, the legal system does nothing toaddress the damage that the nonhuman has suffered.

In sum, I agree with Derrida's view that nonhumans are the vic-tims of unspeakable cruelty and exploitation. I do, however, thinkthat Derrida's view that nonhumans are not the subject of the law orof law neglects, to some degree, the complex social and legal attitudesthat concern nonhuman animals. Although animals may be regardedas subjects of the law, they will still fail to prevail in most conflictswith humans because of our species bias in our assessment of nonhu-man and human interests, our property rights in nonhumans, and thepeculiar status of nonhumans as victims who can do nothing to effect(or affect) the witnessing of damage done to them.

1324 [Vol. 13:1317

THE FORCE OF LAW: METAPHYSICALOR POLITICAL?

Nancy Fraser*

In Part One of his essay, Force of Law: The "Mystical Foundationof Authority,"' Jacques Derrida distinguishes two different ways ofthinking about the relations between force and law, and justice andviolence. The first approach, styled "critique," exposes the ideologi-cal, superstructural nature of law by showing that it operates in theservice of social, economic, and political forces that are posited asexternal and prior to the law.2 The second approach, in contrast,styled "deconstruction," addresses a relation between violence andlaw that is held to be more "intrinsic," "internal," and "complex,"since it uncovers "the origin of authority, the foundation or ground,the position of the law" in a "violence without ground." 3 In Der-rida's view, the second, deconstructive approach is the preferred one;it penetrates deeper than the critical approach to the heart of the rela-tion between violence and law.4

That valuation is also presupposed in the title of the present sym-posium. Inviting reflection "On the Necessity of Violence for AnyPossibility of Justice," this title characterizes the relationship betweenviolence and justice as one of necessity as opposed to contingency.Consequently, it suggests that violence cannot fail to be implicated inany possible legal institution in any possible society, thereby insinuat-ing, at least to my ear, that it would be folly to aspire to eliminate it.Finally, the symposium title implies that the level at which violence isimplicated in law is very deep; the suggestion is that violence consti-tutes the enabling ground or condition for the possibility of justice.Together, these presuppositions entail that the relationship of justiceto violence needs to be approached by means of a transcendental in-quiry. To be sure, this will be a negative or quasi-transcendental in-quiry, since it turns out in deconstructive thought that the ground inquestion is precisely an Abgrund (abyss). Nonetheless, the fact re-mains that quasi-transcendental reflection on violence as a necessary

* Associate Professor of Philosophy and Research Faculty, Center for Urban Affairs and

Policy Research, Northwestern University.I Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.

919 (1990).2 Id. at 940-41.3 Id. at 943.4 Id. at 942-45.

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condition for justice will take precedence over critical forms of in-quiry. Attempts to understand the relationship of violence and lawthrough, say, critical social theory, political sociology, or culturalstudies will be deprivileged as merely empirical and hence, compara-tively superficial.

I have argued elsewhere that those versions of Deconstructionthat privilege the transcendental, even in this qualified form, incur adisability when it comes to thinking politically.' My argument is notthe usual complaint that Deconstruction leads to nihilism, immoral-ity, or amorality. That complaint assumes that a quasi-transcendentaldeconstructive reflection can entail a normative orientation, an as-sumption I reject. Actually, insofar as quasi-transcendental reflectionpertains to the conditions that enable any possible practices and insti-tutions, it cannot tell us much about which of those possible practicesand institutions are morally defensible; nor can it tell us what moralattitude we should adopt toward actually existing practices and insti-tutions. Thus, the standard objection to Deconstruction fails. How-ever, this will provide only limited comfort to those who defend quasi-transcendentalized versions of Deconstruction, since the argumentcuts two ways. It tells equally against any defense of Deconstructionalong the following lines: Contrary to those who think Deconstruc-tion entails nihilism, precisely the reverse is true. What is reallyentailed by the radical ungroundedness of judgment is a paradigmati-cally ethical disposition: a heightened sense of responsibility, an ex-hortation to vigilance, and a commitment to the future that is all themore ethically intense for its lack of guarantees.6 This response isentirely on a par with the original objection. It, too, supposes thepossibility of deriving a normative conclusion from a quasi-transcen-dental premise. It, too, therefore, is unsound.

Thus, the argument about whether Deconstruction entails nihil-ism or an ethics of responsibility ends in a stalemate. So long as thediscussion remains on this plane, it cannot be resolved. More gener-ally, so long as Deconstruction remains committed to privileging evennegative transcendental reflection, so long as it continues to concen-trate its efforts on disclosing the prior, enabling Abgrund behind everymerely critical normative judgment about every merely ontic state ofaffairs, it will never get to ethics or politics. For, as Aristotle under-

5 N. FRASER, The French Derrideans: Politicizing Deconstruction or Deconstructing thePolitical?, in UNRULY PRACTICES: POWER, DISCOURSE, AND GENDER IN CONTEMPORARY

SOCIAL THEORY 69 (1989).6 Derrida's essay contains one version of this defense. See Derrida, supra note 1, at 960-

69. For another version, see Cornell, Time, Deconstruction, and the Challenge to Legal Positiv-ism: The Call to Judicial Responsibility, 2 YALE J.IL. & HUMAN. 267 (1990).

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stood, politics is a matter of just those contingent but warrantablenormative judgments about just those historically and culturally vari-able practices and institutions that negative transcendental reflectionseeks to get behind.7 To assume, therefore, as Derrida does in hisessay, that Deconstruction must get beneath critique to a deepermode of negative transcendental reflection, is to disable or impede thepossibility of political thought about the relation between violence andlaw.

I want to illustrate this claim by contrasting two ways of under-standing "the force of law." In Derrida's terms, these two ways are"deconstruction" and "critique." However, in my view, the crucialissue that divides them is: What is the nature of "the force of law"? Isthat "force" metaphysical or political?

In Derrida's deconstructive account, "the force of law" inheresmost elementally in the ungroundedness of the judge's judgment.'Legal judgment, in his view, is necessarily underdetermined at themoment of decision, however persuasively it may be justified ex postfacto. Judging, therefore, can never be "calculation" but always in-volves a "leap." 9 It is here, in the "madness" or "mystique" of aradical freedom,' 0 that the "violence" of legal judgment resides. "Theforce of law," then, is inscribed in the deep structure of judgment. Itis not a matter of contingent institutions or social relations that couldin principle be altered.

There are three things worth noting about this account of "theforce of law." The first is the unnecessarily paradoxical character ofthe discussion of judgment. Derrida goes too quickly from the uncon-troversial claim that judgment is not calculation to the hyperbolicand, I think, indefensible claim that it is "madness," "mystique," and"violence." There is no discussion of intermediate positions, such asthose derived from the Aristotelian conception of phronesis, whichunderstand judgment as neither the application of an algorithmic de-cision procedure nor the exercise of an irrational will. Because hefails to consider alternatives like these, which give nonaporetic ac-counts of noncalculative judgment, Derrida fails to justify his claimthat judgment is shot through with aporias." On substantivegrounds, then, his account is flawed.

This substantive flaw in Derrida's account of judgment finds ex-

7 ARISTOTLE, Politics Book I, in THE WORKS OF ARISTOTLE (B. Jowett trans. 1921).8 See Derrida, supra note 1, at 960-69.9 Id. at 960-63.

10 Id. at 967 ("The instant of decision is a madness, says Kierkegaard.").

II Id. at 960-69.

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pression in a second problem at the level of his rhetoric. Why stylizeas "force" or "violence" the fact that judging escapes calculation?This choice of word is troubling, regardless of whether we prefer tothink of judging as phronesis or as "madness." It ups the rhetoricalante too quickly and risks the loss of important normative politicaldistinctions by conflating a view about the (presumably inescapable)interplay of freedom and constraint in interpretation with (contin-gent, alterable) modes of individual and institutional coercion.

This brings me to my third and most serious objection to Der-rida's account of "the force of law." His account directs our attentionto a level of so-called "violence" in law that is constitutive and ines-capable.1 2 This is a "violence" that can in no meaningful sense becalled "political," since it is independent of any specific institutionalor social arrangements and since it is not subject, even in principle, tochange. Thus, "the force of law" in Derrida's account is essentiallymetaphysical.

Let me contrast that view to an alternative approach that wouldunderstand "the force of law" as political. This would be an ap-proach that would locate law's force in contingent social relations andinstitutionalizations of power. It would foreswear quasi-transcenden-tal reflection on the "violence" that must inhere in any possible legalinstitution in favor of analysis and (mere) critique of the forms ofmasked, structural violence that enter into social processes of judgingin, for example, our legal system. I specify the object of critique as"forms of masked, structural violence" because these-as opposed tothe overt, punctual violence of criminals, armies, and police-are themost difficult and most important to understand. Included here are arange of deadly systemic social processes, responsibility for whichcannot easily be attributed to identifiable individual agents, but whichculminate in massive harms such as malnutrition, medical neglect,and environmental toxicity.

A political critique of the "force of law" would seek to identifythe various levels at which masked, structural violence enters into ourinstitutionalized practices of legal judgment. Let me suggest threesuch levels that merit critical scrutiny. The first is the level of thebasic constitutional principles that constrain legal interpretation. Inmany cases, these constitutional principles are uncontroversial andunproblematical, at least as abstractions, but in some cases, they arenot. The most problematical case seems to me to be the entrenchedcentrality of the principle of property right in our constitution. I am

12 Id. at 942-43.

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not talking about the right to personal property, but rather aboutwhat we used to call in the old days "private property in the means ofproduction." To be sure, that discourse has lost its cultural legiti-macy, but the problem it names has not gone away. It is still possiblein our legal system for small numbers of people to make decisionswith impunity that imperil the health and livelihood of many others,while degrading the quality of life of everyone. Thus, one task for apolitical critique of "the force of law" would be to show how an appa-ratus of legal judgment can be a vehicle for the operation of masked,structural violence when it is constrained by constitutional principleto protect private property in the means of production.

A second level for critique is the deep grammar of our legal rea-soning. One salient feature of this deep grammar is evident in the factthat in our legal system it is exceedingly difficult, indeed often impos-sible, to press claims for harms one has suffered by virtue of belongingto a social group. In contrast, it is comparatively easy to press claimsin cases where the parties are identifiable individuals and the allegedharm is the result of a breach of contract or other definite assignableobligation. Thus, the deep grammar of our legal reasoning is individ-ualistic. Problems arise, however, insofar as the legal grammar of in-dividualism is seriously out of phase with the nature of our socialsystem. In our social system, a great deal of harm does not take theform of individuals ripping off individuals but is rather a result ofmore impersonal systemic processes and of structural relations amongdifferentially advantaged social groups. This sort of harm, however,is not usually legally admissible. In fact, the deep grammar of indi-vidualist justice presents obstacles to anyone who seeks judicial stand-ing to claim that a systemic injustice has occurred. Thus, even beforelegal judging officially begins, there has already been an operation ofprejudgment that has severely restricted the scope of the judge-able.This prejudgment, which embodies the individualist, deep grammar ofour legal reasoning, is itself a form of masked, structural violence inthe law. A political critique of "the force of law" would theorize andname it as such.13

Finally, there remains a third level at which a political critiquecould unmask the "force of law." This is the level of cultural back-ground. When people make judgments, when they weigh the evidenceand decide which principle applies and which precedent is applicable,they do so against a background of cultural assumptions. Whether we

13 For a book that I consider a model of this sort of critique, see generally P. WILLIAMS,

THE ALCHEMY OF RACE AND RIGHTS (1991). Interestingly, Williams uses deconstructivetechniques in the service of critical, as opposed to quasi-transcendental, reflection.

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are talking about professional judges or ordinary citizens serving onjuries, there are necessarily many such assumptions in play. Back-ground assumptions-for example, about human nature, the causes ofpoverty, what counts as work, and proper gender roles-constitutethe inescapable horizon of any judgment. Yet, in a society that isstratified by gender, color, and class, many of the most culturally au-thoritative and widely held assumptions about such things work tothe disadvantage of subordinated social groups. They are themselves,therefore, aspects of the sociocultural structure of injustice. Whenthey serve as elements of the tacit backdrop against which foregroundlegal judgments are made, they, too, become part of "the force oflaw."' 14

A good example of this is the congeries of androcentric assump-tions that has led many judges and juries to reject self-defense as alegal defense in cases where women are accused of attacking or killingmen who have battered them over a period of many years. It has beenassumed that any legitimate act of "self-defense" must occur in theheat of an assault and cannot involve use of a deadly weapon againstan assailant who has used "only" his fists. Yet surely those assump-tions are premised on a model of male aggression that is seriouslyaskew of many women's socialization and experience with violence.15

To the degree that such androcentric assumptions about self-defensepermeate the horizon of judgment in cases involving battered women,the "force of law" will come down with a thud on the side ofpatriarchy.

Let me conclude by summarizing this portion of my argumentand connecting it to what went before. I have outlined three aspectsof a political critique of "the force of law." In every case, the task ofcritique is to render visible forms of masked, structural violence thatpermeate, and infect, legal judgment. But the legal judgment that isthe object of this critique is not any possible legal judgment whatso-ever. Rather, it is a specific, institutionalized regime of justice reason-ing situated in a specific, structured, sociocultural context. The pointof a political critique of "the force of law," then, is not to identifyforms of "violence" that are "necessary for any possible justice"; it isto identify forms of violence that are precisely not necessary.

The value of identifying unnecessary, "surplus" violence that isrooted in unjust and potentially remediable social arrangements is, I

14 Again, the outstanding exemplar is P. WILLIAMS, supra note 13.15 See Schneider, The Dialectic of Rights and Politics. Perspectives from the Women's Move-

ment, 61 N.Y.U. L. REV. 589, 642-48 (1986) (argument that issues of sexual harassment andlegal protection for battered women emerged from feminist thinking of the 1970s).

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1991] METAPHYSICAL OR POLITICAL? 1331

hope, obvious. This, after all, is the sort of violence we might aspireto eliminate or reduce. And that aim in the end is what dictates myown sense of priorities. To put the matter bluntly: it seems to me tohave matters precisely backwards to claim priority for a quasi-tran-scendental Deconstruction of "the force of law" over a "merely"political critique.

SUICIDE AND JUSTICE

Arthur J. Jacobson*

I want to talk about suicide-a not inappropriate subject for onewho has only five minutes.' It is a delicate subject, and I hesitate totalk of it. But I do not want to talk about suicide alone. I also wantto talk about the relations between suicide and justice.

Benjamin does not directly discuss suicide in the Critique of Vio-lence. But every line suggests the possibility. For example:

Man cannot, at any price, be said to coincide with the mere life inhim, no more than with any other of his conditions and qualities,not even with the uniqueness of his bodily person. However sacredman is (or that life in him that is identically present in earthly life,death, and afterlife), there is no sacredness in his condition, in hisbodily life vulnerable to injury by his fellow men.'

The unanswered question in the Critique of Violence is whetherGod commits suicide, whether divine violence is divine self-violence.This is a question not without its own proper texts.

Matthew's answer in his Gospel3 is that God-from the human,hence legal, point of view-does, or even must, commit suicide in or-der to fulfill, and then surpass, the law. Matthew also says that theonly violence is divine self-violence, God's suicide.

The question for Matthew is how divine self-violence can also behuman. Matthew gives three answers: betrayal, denial, and feelingforsaken by God.

First is Judas. Judas betrayed Jesus. He hanged himself, whenhe saw that Jesus was condemned. "I have sinned in that I have be-trayed the innocent blood."4 Second is Peter-Simon Peter, theRock. Peter denied Jesus, as Jesus warned he would, three timesbefore the cock crowed. (Socrates, remember, asked Crito to sacrifice

* Max Freund Professor of Litigation and Advocacy, Benjamin N. Cardozo School of

Law, Yeshiva University. Jeanne Schroeder saved me from doctrinal embarrassment, if noterror. I am grateful to Drucilla Cornell for urging me to speak on suicide in the first place.

I I have decided to preserve the talk as delivered-in the main text. Additions that oc-curred to me since the talk are in Notes. I especially want to point out that my thoughts onforgiveness were motivated by Jacques Derrida's discussion at the end of the panel.

2 W. BENJAMIN, Critique of Violence, in REFLECTIONS 277, 299 (1978).3 I use the King James version, The Gospel According to St. Matthew, in THE HOLY BIBLE

CONTAINING THE OLD AND NEW TESTAMENTS (Cambridge University Press, undated).4 Matthew 27:3-5 (King James).

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a cock to Aesclepius just as he committed suicide.5) Unlike Judas,Peter did not kill himself, but wept bitterly.6

Third is Jesus. Jesus felt forsaken by God. "My God, my God,why hast thou forsaken me?"' From the human, hence legal, point ofview, Jesus too committed suicide: "Thinkest thou that I cannot nowpray to my Father, and he shall presently give me more than twelvelegions of angels?" 8

Judas delivers Jesus into the hands of the law. Jesus denies thelaw, but (like Socrates) accepts its verdict. Peter does not commitphysical suicide. In a way, Peter had already committed moral sui-

5 PLATO, Phaedo, in THE COLLECTED DIALOGUES OF PLATO 98 (E. Hamilton & H.Cairns 4th ed. 1966).

6 Matthew 26:75 (King James).7 Id. at 27:46.8 Id. at 26:53. Refusing to avoid a killer turns the killer into the victim's instrument.

Ordinary moral judgment may distinguish the case where a killer intends to cause death fromthe case where the killer does not, assigning suicide only to the victim of the latter. Thisdistinction does not seem especially compelling. In both cases, the victim has caused his owndeath-willed it and acted or refrained from acting to make it happen. The fact that a moralagent apart from the victim has also willed the death is no different than the fact thatpneumococci also act to cause death.

A more compelling distinction might focus on the reason the victim chooses to act orrefrain from acting. We might not call "suicide" a Christian Scientist refusing treatment. TheChristian Scientist does not want to die, but is prepared to die in order to protect values higherthan life.

But someone who is protecting higher values may want to commit suicide as a morallyefficient instrument for achieving the values. One can commit suicide in the faith that one'sdeath will be morally productive. The Buddhist monks who burned themselves to death inVietnam in the 1960s probably took this spiritual approach to their suicides.

I am suggesting that Jesus' death may have been suicide according to the legal normsapplicable in his time. and place (it was suicide for an innocent not to flee the an unjust ver-dict), but also that Jesuis' death may be regarded as a suicide in the moral terms I have justdescribed-willing one's own death in the faith that it will be morally productive.

It is also true that one's stance on the Trinity may affect one's characterization of Jesus'death. (God the Father, not Jesus, willed the Crucifixion; Jesus had no more responsibility forhis death than a soldier ordered into the thick of battle.)

In the very next verse Jesus rebuts the suggestion of suicide: "But how then shall thescriptures be fulfilled, that thus it must be?" Id. at 26:54. Socrates had argued that submittingto an unjust verdict is not suicide, because citizens must preserve the law. PLATO, Crito, inTHE COLLECTED DIALOGUES OF PLATO passim (E. Hamilton & H. Cairns 4th ed. 1966).Jesus cannot make this argument, since Jesus does not wish to preserve the law. But cf Mat-thew 5:17-18 (King James). Instead, he uses scriptural fate to rebut the suggestion of suicide.But Jesus does not say who "wrote" scripture. His answer must be either the Holy Spirit orGod the Father. Either of the other two persons of the Trinity is the author of Jesus' death,not Jesus. Jesus, then, does not commit suicide; he fulfills scriptural fate. From the point ofview of the Holy Spirit or God the Father, Jesus' death is divine self-violence, not suicide.

Still, from the human, hence legal, point of view, Jesus does commit suicide. In this he isbound with his betrayer, Judas. Betrayed and betrayer are one. The betrayed is his own be-trayer; the betrayer always betrays himself as well. Peter, alone of the three, does not commitsuicide. He neither betrays nor is betrayed. He has a new relationship to law.

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cide by accepting the new name Jesus gave him. Peter is the newman. He transcends the law. He does not deny the law or collaboratewith it. He forgives legal transgressions, 9 starting with his own (bydenying Jesus he committed fraud). Matthew's Jesus recalls Socra-tes."° Peter has the virtue of forgiveness, not the virtue of law."

This, then, is the divine self-violence available to humans: be-trayal, denial, and feeling forsaken by God. Two of the three-be-trayal and feeling forsaken by God-lead to suicide. Denial leads tobitterness, then self-forgiveness and continued life, once Jesus has ful-filled and surpassed the law.

Needless to say, Benjamin does not agree that divine self-violenceis the only violence. It is unspeakable to think that God has commit-ted suicide. There are no suicides in the Five Books of Moses. Only

9 Not to mention moral ones. By fleeing from Jesus after the arrest, Peter, along with theother Apostles, forsook Jesus. Matthew 26:56 (King James).

10 Also Achilles-born of a divine mother and a mortal father (the reverse of Jesus).Achilles' mother, Thetis, dipped his body in the River Styx to wash away the mortal part,missing only his heel. T. BULFINCH, THE AGE OF FABLE OR BEAUTIES OF MYTHOLOGY 211,267 (1855 & reprint 1962). John the Baptist dipped Jesus' body in water, washing away themortal part entirely. Matthew 3:13-17 (King James).

11 Or the virtue of Achilles: Peter denied association with Jesus three times after the arrest,presumably because he was frightened. Matthew 26:69-74. Matthew does not say which of theApostles violently and courageously resisted Jesus' arrest.

Unlike Luke, Matthew does not take a position on Jesus' capacity for forgiveness. Lukedoes not report Jesus saying that God has forsaken him. Jesus says instead, "Father, forgivethem; for they know not what they do." The Gospel According to St. Luke, 23:34, in THEHOLY BIBLE CONTAINING THE OLD AND NEW TESTAMENTS (Cambridge University Press,undated). Matthew's Jesus, feeling forsaken (by God and the Apostles), does not ask God toforgive those who condemned him. Luke's Jesus is more forgiving.

But Luke's Jesus is less forgiving than Peter. Jesus asks God to forgive those who do notknow. Peter knew (Jesus warned him that he would deny Jesus), and must forgive himselfanyway in order to carry on with his life. Socrates equated virtue with knowledge. Forgive-ness unsettles that equation. One who knows wrong can do it. Exactly that one needs forgive-ness, needs self-forgiveness especially, since only each one knows what each one knows.Forgiveness, not knowledge, is virtue. But Luke's Jesus asks God to forgive only those who donot know, not those who know, like Peter. But those who do not know need education, notforgiveness. Jesus, like Socrates, was first a teacher. Peter is the forgiver. Jesus walks onlyhalf the road from Socrates to Peter.

Luke's Jesus is less forgiving than Peter, also because Jesus does not forgive, but calls onGod to forgive. Jesus asks God to forgive, as if God was another. Jesus does not forgive in hisown person.

Luke's Jesus is less forgiving than Peter, finally, because Peter must forgive himself, amore difficult task than asking God to forgive others. Jesus too must forgive-forgive himselffor saying publicly that God has forsaken him. But Jesus dies immediately, and Matthew doesnot say whether Jesus forgives himself.

So Matthew asks, Does God forgive Himself? Does divine self-forgiveness accompanydivine self-violence? Speaking, as he must, from the human, hence legal, point of view, Mat-thew cannot answer.

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Saul commits suicide in the Prophets.'2 Saul commits suicide to de-fend the name of God-to obey God's law, not to fulfill and surpassit. Suicide is a sin. It is the only sin, since it is a denial of God's law.

Divine self-violence denies God's law. I commend this proposi-tion to the Derrida who reads the Critique of Violence. Benjamin'ssuicide, if one dares to speak of it, was the act of one forsaken byGod's law.

For jurisprudence the point is this. Persons who participate inpositivism or naturalism commit legal suicide. Both positivism andnaturalism assert that persons count for nothing. They are not thesource, or even the object, of law. They are animals to control. 3 Butpositivism and naturalism are not every jurisprudence, even in themodem state. Moses' jurisprudence-the jurisprudence of duty-andthe jurisprudence Derrida espouses in Force de loi 14 -the jurispru-dence of right-are sturdy alternatives to positivism and naturalism.Neither requires persons to forget themselves in jurisprudence. Per-sons are the source and object of law in these jurisprudences. 15 Theydo not commit suicide by submitting to law.

The jurisprudence of duty and the jurisprudence of right arejoined by a third, also putting persons at the center of law. This iscommon law. I have written of these for our first symposium onDeconstruction.16 These three jurisprudences are dynamic. They dif-fer from the static jurisprudences-positivism and naturalism-in twosignificant respects. They drench the universe with legal materials, 7

and they treat persons as the source and object, not the subject, oflaw. They are jurisprudences of divine violence.

It is a mistake Derrida does not make to take positivism andnaturalism at their word that they are the only possible forms of juris-prudence in the state. Positivism and naturalism are only the face the

12 1 Samuel 31:4 (King James). David Daube has reviewed the evidence on suicide in the

Five Books and Prophets in DAUBE, The Linguistics in Suicide, 1 PHIL. & PUB. AFF. 387(1972). He also notices the suggestions about Jesus' suicide in Matthew, Mark and John. SeeId. at 395-96.

13 See Jacobson, The Private Use of Public Authority: Sovereignty and Associations in theCommon Law, 29 BUFFALO L. REV. 599, 610 (1981); see also Jacobson, Hegel's Legal Plenum,10 CARDOZO L. REV. 877, 885-86 (1989) [hereinafter Hegel's Legal Plenum].

14 Derrida, Force ofLaw: The "Mystical Foundation ofAuthority," 11 CARDOZO L. REV.

919 (1990).15 See Hegel's Legal Plenum, supra note 13, at 879-83.16 Jacobson, The Idolatry of Rules: Writing Law According to Moses, With Reference to

Other Jurisprudences, 11 CARDOZO L. REV. 1079, 1125-32 (1990).17 See Hegel's Legal Plenum, supra note 13, at 880-81.

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state presents to persons."' Our legal universe is, in fact, filled withmaterials from dynamic jurisprudence. Derrida confirms this in hisown uncanny perceptions. It is possible, I take Derrida to be saying,that God's law has not forsaken us.' 9

18 See Jacobson, Autopoietic Law: The New Science of Niklas Luhmann, 87 MICH. L. REV.

1647, 1678, 1688 (1989).19 And that God forgives Himself for divine self-violence.

LAW AND RIGHT

William J. Richardson*

I suggest that we take seriously Jacques Derrida's remark:I am not sure that such a thing as "Deconstruction," in the singu-lar, exists or is possible.... [But] I think that deconstructive dis-courses as they present themselves in their irreducible pluralityparticipate in an impure, contaminating, negotiated, bastard andviolent way in all these filiations-let's call them Judaeo-Greek tosave time--of decision and the undecidable.... And finally [as to]what remains to come in deconstruction, I think that somethingelse runs through its veins, perhaps without filiation, an entirelydifferent blood or rather something entirely different from blood.'

Such, at least, is our hope. I wish to suggest, however, thatalthough "deconstructive discourses" as they present themselves in an"irreducible plurality" have an essential role to play in addressing theproblems of law, right, justice, responsibility, and violence, Decon-struction "taken in the singular" does not have very much to sayabout such things at all. In other words, I suggest that Deconstruc-tion, taken as a critical method or instrument of research, is an inval-uable tool for lawyers, but that as a philosophy in its own right, as aphilosopheme (at least as it concerns ethics and the law) it leaves ushungry-sur notre faim, as the French say.

Taken in the singular, Deconstruction is characterized by the ex-perience of diffirance. But diffdrance, it seems to me, cannot give asatisfactory account of two notions that are indispensable to any dis-cussion of the relation between ethics and the law: the conception ofan ethical subject, the universal experience of "ought."

As for the ethical subject, we cannot talk about law (and there-fore justice) unless at the same time we talk about the notion of"right." Derrida's insistence on using the French droit to speak of"law" underlines the fact that (like the German Recht) this word si-multaneously speaks of "right," that is, some power that must be de-fined, protected, or limited by law. But the subject of a right, Isuggest, has to be something more coherent than a continuously dis-placeable subject of meaning, something more constant than thesteady erasure of self-differentiating diffirance. Furthermore, a sub-

* Professor of Philosophy, Boston College.I Derrida, Force of Law: The "Mystical Foundation of Authority," 11 CARDOZO L. REV.

919, 1035 (1990).

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ject of rights, like any other subject who must respect her, will neces-sarily be both responsible and free. But there is nothing inDeconstruction (taken in the singular), it seems to me, that can ac-count for a subject that is stable enough to be capable of response,responsibility or freedom.

Moreover, the affirmation of a right on the part of one subjectimplies a corresponding duty on the part of the other to respect it-the "ought" that says rights "ought" to be respected, for of such thesocial fabric is woven. This is not just an atavistic Kantianism that Iam thinking of here, for even if, according to Derrida, all that can besaid about the subject is that it is the memory of a future, how can weescape the ineluctable fact that J. Hillis Miller recalls: "In any ethicalmoment there is an imperative, some 'I must' Ich kann nicht an-ders."2 Such an imperative must be grounded somehow in the invio-lability of the subject that is to be guaranteed by law, that in one wayor another supplies a criterion for the legitimacy or illegitimacy of lawand the use of force (vs. violence [Gewalt ]) in implementing the law,and that thereby offers us a way to discern between good law and badlaw. If it is true, as Derrida observes, that "[n]othing seems ... lessoutdated than the classical emancipatory ideal," 3 how can one talkabout emancipation without a conception of a subject that is free andinviolable? Literary critics may function very well without needing topresuppose the functioning of an ethical subject-philosophers, too,perhaps. But lawyers?

That diffirance may touch tangentially on ethical matters doesnot, as such, establish it as an ethical force. The dynamism alone ofdiffirance does not suffice to constitute the latter as an ethical"ought." And if there is no absolute beginning, if all we have to dealwith is a memory that reminds us of an d venir, how can such a never-was be transformed into an ought-to-be?

One will say, perhaps, that these are classical ethical issues thatdepend for their force on an abandoned ontology. But that is pre-cisely the challenge. For, even if ontology be abandoned, the end ofmetaphysics is not the end of philosophy for Derrida, and our taskremains to think non metaphysically the old issues that refuse to goaway. "[T]he experience of the aporia . . . provokes the thinking ofthe very possibility of what still remains unthinkable or unthought,indeed, impossible."

4

Some may argue that we have available in our time a philosophi-

2 J. MILLER, THE ETHICS OF READING 104-05 (1987).

3 Derrida, supra note 1, at 971.4 J. DERRIDA, Acts, in MEMOIRES FOR PAUL DE MAN 132 (E. Cadava trans. 1986).

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cal thought that provides us with a valid foundation for ethics in thework of Emmanuel Levinas. Here, the first word of the ethical rela-tion is not that of "inalienable right" but rather the call to responsibil-ity to the Infinite Other. But once a third party is introduced and thesocial fabric established, there is an inevitable fall from the purity ofthe ethical relation as such into a world of law and reciprocity, ofrights and duties. In fact, Derrida seems to find this congenial:

I would be tempted, up to a certain point, to compare the conceptof justice-which I'm here trying to distinguish from law-toLevinas's, just because of this infinity and because of the hetero-nomic relation to others, to the faces of otherness that govern me,whose infinity I cannot thematize and whose hostage I remain....

Levinas speaks of an infinite right: in what he calls "Jewishhumanism," whose basis is not "the concept of man," but ratherthe other; "the extent of the right of the other" is "a practicallyinfinite right"; .... Here equity is not equality, calculated propor-tion, equitable distribution or distributive justice but rather abso-lute dissymetry. And Levinas's notion of justice might sooner becompared to the Hebrew equivalent of what we would perhapstranslate as "sanctity." 5

To be sure, Derrida suggests a reserve with regard to this posi-tion: "But since Levinas's difficult discourse would give rise to otherdifficult questions, I cannot be content to borrow [a difficult move]without risking confusions or analogies."' 6 But. is Derrida's problemsimply one of "confusions and analogies"? How can Decontruction(in the singular) in any way speak of a "heteronomic relation toothers," of "the faces of otherness that governs me, whose infinity Icannot thematize and whose hostage I remain"? How can it legiti-mately speak about an ethical responsibility to the other if the onlygenuine otherness possible for Deconstruction, taken in the singular,is the otherness of diffirance, the otherness between the saying andthe said, between the saying and what perhaps cannot be said?

I do not pose this question about Deconstruction (in the singu-lar) as an unanswerable objection to Derrida's entire enterprise. It isclear that deconstructive discourses in one form or another are here tostay. But lawyers who find deconstructive discourses methodologi-cally invaluable still have the need to know how far Deconstruction(in the singular), whatever may be the "something else that runs in itsveins," can take them in understanding what really constitutes the

5 Derrida, supra note 1, at 959.6 Id.

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human subject and makes possible those rights that the legal profes-sion commits itself to defend.

NOT VIRGIN ENOUGH TO SAY THAT [S]HEOCCUPIES THE PLACE OF THE OTHER

-Jacques Derrida, Glas*

Gayatri Chakravorty Spivak**

It used to seem necessary to remind metropolitan, literary-philo-sophical panels of the international division of labor. Now it seemsnecessary to remind them also of the polytheist everyday.' (A case inpoint: before contextualization, the transcript picked up this phrase as"policies everyday.") For those who find this predictable and repeti-tive, this word: notice how often, in panels like this one, people invokeGod, the Death of God, the Bible, the Talmud, the Law of the Fa-ther-an ensemble. Even "the secular" carries upon its exergue thehistory of a "world" facing a specific "ecclesia," that inscription noweffaced into the universal name of an enlightened world that has sub-lated religion. Assimilated polytheist ex-colonials were brought up topresuppose that the European "secular" imagining of ethics, whichhas not lost touch with its God even in His Death, is the only space,of critique or dogma.

I had thought to let the immense problem of the word "polythe-ism" rest buried in my discreet first footnote. In the meantime a letterarrived from Jean-Luc Nancy, in which he quite appropriately re-minded me that "polytheism is a completely Western, Greek, wordand there would be a lot to say about that."2 To honor my friend'sgood critique, here is a first quotation from the work with which, atfirst, I had hoped merely to end:

Whatever the philosophers say, I think it is important thatmono- as well as poly- would be mistranslations of advaita ordvaita that would take away the agility of the popular ethical mindset that makes nothing of this undecidability. Mono is "un-two-ed," a strange way of saying One! Omni- (science or potence) doesnot fit into this too well. And the "two-ed," without a precise au-thority of a One to stand guard over it, can stand in for an indefi-nite swarm. Translation of advaita and dvaita into monism (non-dualism) and dualism has a lot to answer for.

These institutions cannot be reasonably verified, but they are a

* JACQUES DERRIDA, GLAS (1986).* Professor of English, Columbia University.

I "Polytheism" is a word generated by monotheist space. Since we have not left that

stage, I will use this word uneasily.2 Letter from Jean-Luc Nancy (Jan. 18, 1991) (available at Cardozo Law Library).

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coherent way of repeatedly taking a distance from the inflexibleprinciple of reason (dharma as code, karma as determinism) in theeveryday performance of the sense that the type case of the ethicalpredicament is the dilemma. What reason plots as an asymptote isfounded by an epistemic shuffle where god and man are indetermi-nately in each other's comer. It is also no less plausible as a de-scription of something as tenuous as a "mind set" than thestructural orientalism of a homo hierarchicus.3

As you have repeatedly pointed out, the "West" is not with-out its discomforts about the inconsistencies in the omniscient-om-nipotent God. I have worked my way away from the question ofomnipotence to Indic performative ethics by starting where youend. My subtext has of course been that the question of God is toomonotheist. Over against it is not polytheism but the dvaita-ad-vaita habit of mind. Hence my questions earlier: is there an invari-able word for God? Is it at least vestigially susceptible to anoncompetitive one-person model?4

Within this predictable and repeated staging, an unbelieving,middle-class, contemporary dvaitin might beg leave to invoke thatother staging of an "origin." She might crave for that invocation asingular space on the agenda because the March of History that someof you have recalled is not quite the March of her History. The Sec-ond World War, much on the mind of our conference, brought in forher kind, in a circuitous way, not all at once, not as a cause leading toa consequence, a certain kind of freedom, which then demanded animagination of a world other than the old European monotheistworld, which in turn led to a near total loss of ethical authority, partlybecause the old European monotheist time had miraculated into thenew secular time of ethics. It is indeed the resurgence of polytheistviolence against the forcibly justified violence of the State that placeson her this responsibility: to ask, in an assembly such as this, if it ispossible to think of an unromanticized, contemporary, hegemonic,corrupt polytheism in the house of ethics.

And if the response comes back, from those friends who havesome claim outside of a cartographic Europe, I too could choose tospeak as a non-European; here is a gentler word: it is upon the intrac-tability of that itinerary that the assimilated ex-colonial intellectualmust meditate. No cheap thrills here, no "freedom of choice." Andtherefore, finally, the gentlest word of all: why not "choose" that in-

3 See L. DUMONT, HOMO HIERARCHICUS: THE CASTE SYSTEM AND ITS IMPLICATIONS(M. Sainsbury trans. 1970).

4 B.K. Matilal & G.C. Spivak, Epic and Ethic in Indian Examples (unpublishedmanuscript).

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NOT VIRGIN ENOUGH

definite miasma? Why avoid the avoidable in an attitude? Perhapsthis question receives an answer in Geoffrey Bennington's and JacquesDerrida's Jacques Derrida, a book that I have not yet read. At firstglance, it seems soaked in Algeria and Saint Augustin's Italo-Maghreb, though no doubt the letter press will be differantial to thattoo-obvious immersion.'

The assimilated ex-colonial is trained in the European secularimaginary. She "knows" nothing on the other side. (I am making aphilosophical point here; this absence of "knowledge" is also true ofradical Indianists. It has to do with the nature of contemporary"knowledge," not with disciplinary expertise.) From within thatlong-inhabited residential hotel then, she will first share with youwhat she understands our title to be. I may not have got it quite right.She enters her hotel room with that epistemic sleight of hand and thisis what she understands:

. The Call to the Ethical is, almost, the call of the ethical. If theCall to the Ethical is the definitive being-called-ness of Being, then itmight just as well be called the call to the non-ethical, it would notmake a difference. Only with the call of do we begin to get even themost general sense of the first part of our title: The Call to the Ethical,an originary relatedness that might just as well be called the ethicalrelationship. There is something like a relationship between this be-ing-called-ness and the fact that being human might be to be in excess,to be inadequate even as the being is super-adequate. But these gen-eral senses are constantly bled into by all kinds of narrow senses. It isnot possible to get a grip on the call to the ethical as the ethical rela-tionship in the general sense. The necessary violence, it may be calleda "mistake," of thinking the ethical subject cannot be avoided. Andthe transportation of the cannot to the should not must be the ruse ofethical education.

It is of the first interest to me, from within this hotel room, look-ing out of the window, as it were, to consider how Marx, in positingthe being in excess, as secreting a simple, contentless, unavoidablyand immediately codable thing miscalled value, attempted to contam-inate the economic by the ethical, and failed, taking the most fragileEuropean constitution of the ethical subject for granted and basing aspurious internationalism on an example that could only be located inVictorian England.6

Still within the hotel room but getting restless now, it is of great

5 G. BENNINGTON & J. DERRIDA, JACQUES DERRIDA (1991).6 This work proceeds from my Scattered Speculations on the Question of Value, in IN

OTHER WORLDS: ESSAYS IN CULTURAL POLITICS 154-75 (1987).

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interest to me to consider how the unavoidable, violent slippage be-tween the general and the narrow has been creatively anthropomor-phized by feminist thinking: a) the definitive being-called-ness asgestation, a formal analogy with the human being pregnant with (itsown) death, and the rupturing of birth as a severing into the ethicalrelationship with the possible subject; b) plotting justice as the impos-sible balance between sexual difference, ethics to be thought with agendered subject.7 The assimilated colonial Hindu-what is thatname in the context of contemporary religious violence in India?-can move this far, even in two minutes, practicing the performative-constative ruse learned before memory-the human being has a (Eu-ropean) history: Europe's monotheism or Europe's monotheism ef-faced is the only space of dogma or critique. Enabled by this ruse, Ican desist forever, even with no time at all, put in a word for Fou-cault, insist that he was not only concerned with the microphysics ofpower.

The assimilated ex-colonial's next step, then, in half a minute, isa willed move, and, this too is a wrestling with Deconstruction. And,precisely because the law of the forum now allows only half a minute,she must spend that time to disclose what she cannot do, and notbecause of lack of time. Ten or fifteen years ago, at the inaugurationof marginality studies in metropolitan humanities, it used to beenough simply to bring in a so-called non-European example to mon-umentalize a politically correct ritual moment. Now that the empow-erment of ethnic and sexual others in the metropolis has got its ownTrinity Formula of race-class-gender, it has become increasingly im-portant for members of ethnic minorities who can sit at a table likethis one-an historical displacement of the assimilated ex-colonial-to emphasize that on the other side is the indefinite.9

For the Call to the Ethical in general, as it is differed/deferred inits differential contaminations, forces us to think the subject of ethics.

7 This work continues my French Feminism Revisited: Ethics and Politics, in FeministTheorize the Political (J. Butler & J. Scott eds.) (forthcoming in anthology).

8 I use "desist" in the way in which Derrida wants us not to use it, I think:"... the worddesistance, in French, a word that Lacoue-Labarthe never uses and that moreover does not yetexist, could prove useful. On the condition that it not be simply transcribed in English, with-out further precautions, as 'desistance'!" Derrida, Introduction: Desistance, in P. LACOUE-LABARTHE, TYPOGRAPHY: MIMESIS, PHILOSOPHY, POLITics 4 (C. Fynsk ed. 1989). To mea-sure my faithfulness in transgression, the reader must go to Derrida's text.

9 "The Trinity Formula" is the title of a chapter in 3 K. MARX, CAPITAL (D. Fernbachtrans. 1986). Here Marx suggests that to assume that all societies are class structured as underindustrial capitalism is to mistake an historical moment for a general social law. The very lastparagraph suggests that on the other side of that particular situational class analysis the cate-gory of class fades into the indefinite.

1346 [Vol. 13:1343

NOT VIRGIN ENOUGH

If the assimilated-colonial-ethnic-minority (ACEM) should make her-self believe that she unperforms that sleight of the episteme, she stillcannot get a grip on what makes up the subject of an ethics on theother side. All the prior questions have been asked and unasked incolonized space. Yet the subjectship of ethics cannot be thought aslogically after equality-before-the-law of even "phenomenologicalsymmetry" (Drucilla Cornell's phrase)." So ACEM, in her willfullyundone mode of questioning, must still assume the differentially con-taminated other as the subject of an ethics that remains unthinkable.

The only way to "do research" in that predicament is the mostliteral-minded "hanging out," resisting anthropology, resisting his-tory, resisting revolutionary tourism. Hanging out on that terrain is anaive planned miming of Da-sein as Weg-sein, being there as beingaway. And here she can find nothing in her "own tradition"-thatcurious thing miscalled Hinduism-a hegemonic, middle-class poly-theism mired in bad politics and "semitized" in its Nationalist face.In search of the differentially contaminated face of the absolutelyother she has to wander into subaltern Islam on the subcontinent, andinto the by-her-unnameable aboriginal preindic animism.

Keeping her presuppositions examined, her theoretical noseclean, the only way she can question the woman it seems eerie to callthe "subaltern," when one is face to face, when the moment seemsright in her hanging-out times, are by way of questions cooked on thehot plate in the hotel room: What is it to vote? What is it to hope tosave? What is the good life? Anthropological questions, or oral his-torians' questions will not do when you want, not to produce knowl-edge about others, but to open yourself to an other's ethic. What is itto "open," what does one open? ACEM cannot talk feminism be-cause that comes packaged with the Enlightenment material that al-lowed her assimilation.

These questions-political (what is it to vote?), economic (whatis it to hope to save?), social (what is the good life?)-and their an-swers cannot teach her enough to make up an account of the ethicalsubject distinguishable from the celebration of a transcoded, anthro-pological subject/object. How can the questioner not acknowledgethat the arrival of the moment between her and the other woman isnot just good chemistry between the two, but also vast aggregativeviolating systemic work which is precisely from that hotel lobby thatshe is trying to leave?

The preconference plan had been to proceed now, time permit-

10 Cornell, Civil Disobedience and Deconstruction, 13 CARDOZO L. REV. 1309, 1314(1991).

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ting, to an example from a hegemonic Indic text, a feminist rereadingof a famous moment in the Mah abha rata as a call to an ethical a-venir. But time did not permit, and it now seems more in keepingwith the spirit of the piece simply to indicate some of the conclusionsfrom that reading and end inconclusively. If there is an interestedreader, she will follow it through in a text where the question-"whatis it to 'read' the text of a different ethics?"-is played out at leisure.

In conclusion, then, the conclusions, literal self-citations from apostscript to a friend's work:1

Her question is modest, not mad. Or, it is mad only in itsboldness, only in its nonrecuperability by narrative logic. She isnot a great criminal showing up the violence of the law. Or, thegreatness of the crime is in its daring to invoke legal justice.

The momentary imagination of the menstruating, lorded-yet-lordless, questioning-though-property, woman in suspension doesnot need to be covered over, for it as yet threatens nothing.

This postscript ends in unverifiable hearsay: that at the end ofthe whole devastating battle, she laughed aloud from inside the en-campment. As a "Hindu" woman, I have the responsibility to puta gloss for our times on this unauthorized epic detail. She laughedto think of a time-always to come, a-venir-when unlorded wo-men would choose to ask the question of the law's relationship toethics across sexual difference, again, and perhaps intelligibly.

11 The following excerpts are from B.K. Matilal & G.C. Spivak, supra note 4.

[Vol. 13: 13431348

CLOSING REMARKS

David Gray Carlson*

We, at Cardozo Law School, have now had three major confer-ences of this sort. The first was on "Hegel and Legal Theory";' thesecond was on "Deconstruction and the Possibility of Justice";2 andnow the "Necessity of Violence for Any Possibility of Justice." Afterevery one of these conferences, Professor Cornell always swears she'llnever do this again. But I would like to pay a special tribute to Pro-fessor Cornell because I think each of these conferences has been his-torically important in the admittedly degraded context of legaleducation. Perhaps you nonlawyer intellectuals can't understandwhat an uncritical and unchallenged place law schools are.. I thinkthat each of these conferences has been a tremendous challenge to thelegal academy-to open itself up. And I really think Professor Cor-nell deserves all the credit in the world for the immense hard workthat all these conferences have represented. So I would personallylike to thank her, not to mention her dedicated research assistants,Deborah Garfield and A. Collin Biddle, who've been absolutely tre-mendous and instrumental in this conference today. And with that, Iregret that I have to call the conference to a close. Thank you verymuch for coming. Soon to be published in a major law review.

* Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.

Hegel and Legal Theory: Part I, 10 CARDOZO L. REV. 847 (1989); Hegel and LegalTheory: Part II, 10 CARDOZO L. REV. 1435 (1989).

2 Deconstruction and the Possibility of Justice, 11 CARDOZO L. REV. 919 (1990).

1349

COMMENTARY

WHAT DIFFERS? WHO DIFFERS? WHAT ISTHE DIFFERANCE?

Arthur D. Austin*

This graphic is patterned after Derrida's Glas.'The quotes I use are intended to challenge each other and "play

havoc with the logic of meaning."2 The comments in the text chal-lenge and invade each other, while they, in turn, are challenged by thefootnotes. The comments in the right hand column subverteverything.

The ultimate objective is to flush out the conflicts and differencesof major issues in law, legal education, and earth.

* Edgar A. Hahn Professor of Jurisprudence, Case Western University.1 JACQUES DERRIDA, GLAS (1986).2 CHRISTOPHER NORRIS, DECONSTRUCTION: THEORY AND PRACTICE 142 (1982).

1351


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1353IWHAT IS THE DIFFERA NCE?

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1991]

"THE PROPHET STUMBLES": BRANDEIS, THEBILL OF RIGHTS, AND PROHIBITION

Natalie Wexler*

The name Brandeis has become virtually synonymous with theidea of commitment to the defense of the civil liberties protected bythe Bill of Rights. Brandeis's eloquent concurrence in Whitney v. Cal-ifornia I remains a classic justification of the first amendment princi-ples of free speech and debate, and his dissent in Olmstead v. UnitedStates2 foreshadowed the development of a constitutionally-basedright to privacy. The examples could, of course, be multiplied. How-ever, one aspect of Brandeis's jurisprudence has been identified bysome as being uncharacteristically hostile to claims of individualrights. In cases involving the enforcement of the eighteenth amend-ment 3 and Prohibition, Brandeis's biographers maintain, he toleratedgovernment actions that he almost undoubtedly would have refusedto countenance in other contexts.

In what is still probably the definitive biography of Brandeis, Al-pheus Mason labels his discussion of Brandeis's Prohibition decisions,"The Prophet Stumbles."4 "When confronted with the 'experimentnoble in motive,'" Mason writes, "the support he had given pacifists,socialists, and other radicals banned by regulatory legislation, was notforthcoming.' 5 In an earlier study of Brandeis, Mason was even moredamning: Brandeis "has proved himself an authoritarian and even apaternalist in his interpretation of the Eighteenth Amendment andthe Volstead Act."' 6 Philippa Strum, author of the best recent Bran-deis biography,' concurs in Mason's judgment. Brandeis "did not

* Associate Editor, Documentary History of the Supreme Court of the United States, 1789-

1800. A.B., Harvard University, 1976; M.A., University of Sussex, 1977; J.D., University ofPennsylvania, 1983. My thanks to Michal R. Belknap, James Feldman, Paul Kens, MaevaMarcus, and Clyde Spillenger for their comments and criticism.

1 274 U.S. 357 '(1927) (Brandeis, J., concurring). Whitney was explicitly overruled byBrandenburg v. Ohio, 395 U.S. 444 (1969).

2 277 U.S. 438 (1928) (Brandeis, J., dissenting). Olmstead was overruled by Katz v.

United States, 389 U.S. 347 (1967).3 U.S. CONST. amend. XVIII, § 1 (1919, repealed 1933) ("After one year from the ratifica-

tion of this article the manufacture, sale, or transportation of intoxicating liquors within, theimportation thereof into, or the exportation thereof from the United States and all territorysubject to the jurisdiction thereof for beverage purposes is hereby prohibited.").

4 A. MASON, BRANDEIS: A FREE MAN'S LIFE 566 (1956).5 Id.6 A. MASON, BRANDEIS AND THE MODERN STATE 219 (1936).

7 P. STRUM, Louis D. BRANDEIS: JUSTICE FOR THE PEOPLE (1984).

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merely uphold the Prohibition laws as a regrettable but legitimategovernment experiment, but permitted enforcement even when it vio-lated civil liberties.""

What were these decisions that have evoked the condemnation ofBrandeis's preeminent biographers, neither of whom could be calledgenerally hostile to their subject? The first two were cases brought bybreweries and decided under the War Time Prohibition Act,9 shortlybefore the eighteenth amendment became effective in January 1920.In the first of these, Hamilton v. Kentucky Distilleries & WarehouseCo.,'° the major issue was whether peace had in fact broken out,thereby rendering the War Time Prohibition Act invalid.1 ' In the sec-ond case, Ruppert v. Caffey,' 2 the primary question was the constitu-tionality of the Volstead Act, 3 which had supplemented the WarTime Prohibition Act by outlawing any beverage containing morethan 0.5% alcohol. The plaintiff corporation claimed that it was enti-tled to a trial on whether its beverage, which contained considerablymore alcohol than 0.5%, was in fact intoxicating. In both Hamiltonand Ruppert, the constitutional issue addressed was whether the gov-ernment's action in confiscating or preventing the sale of liquor was ataking of property without just compensation in violation of the fifthamendment.' 4 In both cases, Brandeis wrote the Court's opinion-fora unanimous Court in Hamilton, and for a narrow five-to-four major-ity in Ruppert-holding that no taking had occurred.

For the next several years, Brandeis authored no opinions con-cerning Prohibition, although he sided with a majority of the Court ina number of cases upholding its enforcement,' 5 including one casethat rejected a challenge to the constitutionality of the eighteenthamendment.' 6 Then, during the 1926 Term, he wrote three opinionswhich have been cited by Mason as representing slippages from his

8 Id. at 330.9 Act of Nov. 21, 1918, ch. 212, § 1, subdiv. 4, 40 Stat. 1045 (this Act expired on its own

terms at the "termination of demobilization the date of which shall be determined and pro-claimed by the President of the United States.").

10 251 U.S. 146 (1919).11 See supra note 9.12 251 U.S. 264 (1920).13 Act of Oct. 28, 1919, ch. 85, § 1, 41 Stat. 305, repealed by Act of Aug. 27, 1935, ch. 740,

49 Stat. 872.14 U.S. CONST. amend. V ("[P]rivate property [shall not] be taken for public use, without

just compensation.").15 See, e.g., Hawke v. Smith, 253 U.S. 221 (1920); United States v. Simpson, 252 U.S. 465

(1920). Brandeis also wrote one opinion holding that a state Prohibition statute had not beenpreempted by the eighteenth amendment and the Volstead Act. See Vigliotti v. Pennsylvania,258 U.S. 403 (1922).

16 National Prohibition Cases, 253 U.S. 350 (1920).

1356 [V/ol. 13:1355

THE PROPHET STUMBLES

usual commitment to civil liberties. 17 The first of these, United Statesv. One Ford Coupe Automobile,"8 was a statutory rather than a consti-tutional case. An automobile belonging to Garth Motor Companywas seized by the United States when it was discovered in the posses-sion of an individual, Killian, who was apparently using the car toconceal contraband liquor. Needless to say, no tax had been paid onthe illicit contents of the vehicle. The question before the Court waswhether the government could seize the car under the Internal Reve-nue Code'9 for non-payment of taxes on the liquor, or whether it wasrequired to proceed under a similar provision of the National Prohibi-tion Act,20 which would have prevented forfeiture of the vehicle in acase-such as this one-where the owner of the vehicle was innocent.Brandeis held, for a six-justice majority, that it was the government'sprerogative to proceed under the Internal Revenue Act. As a result,the Garth Motor Company lost its vehicle, and Killian got off scot-free.

Apparently, the Garth Motor Company did not seriously pressany argument that the confiscation of an innocent owner's propertywas a violation of due process or some other constitutional provision.The only reference to the Constitution in Brandeis's opinion is an off-hand remark that "there is no constitutional objection to enforcing apenalty by forfeiture of an offending article."'"

Inexplicably, Mason summarizes this case as upholding "thegovernment's right to confiscate an innocent owner's motorcar simplybecause a guest-passenger had a small flask of whiskey on his per-son."22 This wording implies that the innocent owner was an individ-ual rather than a corporation. Furthermore, according to the opinionitself, Killian was in possession, not of a "small flask of whiskey," butof no less than twenty-seven quarts of it.23 Perhaps Mason was offer-ing a hypothetical "worst case" to which the reasoning of the opinionmight apply, but his characterization is certainly misleading. Strumrepeats the inaccuracy.24

More fundamentally, Mason and Strum overlook one crucial

17 See Albrecht v. United States, 273 U.S. 1 (1927); Lambert v. Yellowley, 272 U.S. 581(1926); United States v. One Ford Coupe Automobile, 272 U.S. 321 (1926); A. MASON, supranote 4, at 566.

18 272 U.S. 321 (1926).19 Act of July 13, 1866, ch. 184, § 3450, 18 Stat. 680, 682-83.20 Act of Oct. 28, 1919, ch. 85, § 26, 41 Stat. 305, 315-16, repealed by Act of Aug. 27,

1935, ch. 740, § 1, 49 Stat. 872.21 One Ford Coupe Automobile, 272 U.S. at 330-31.22 A. MASON, supra note 4, at 566.23 One Ford Coupe Automobile, 272 U.S. at 324.24 P. STRUM, supra note 7, at 330. Strum summarizes the case as holding that there was

1991] 1357

CARDOZO LAW REVIEW

point about the three cases discussed so far: all three involved theconstitutional protection of rights to property-liquor in Hamiltonand Ruppert, and an automobile in One Ford Coupe. Once that fact isrecognized, these cases appear fully consistent with the rest of Bran-deis's jurisprudence. It is no secret that Brandeis viewed with distastethe efforts of the Supreme Court of his day to strike down social andeconomic legislation in the name of preserving constitutionally-protected property rights. 25 Indeed, he went so far as to advocate-atleast privately-the repeal of the fourteenth amendment on theground that it had been used to protect property rights instead of"fundamental" rights, such as the rights to "speech" and"education. ' 26

Brandeis's position in these three cases is thus better explained byhis general attitude towards constitutional protection of propertyrights than by his general attitude towards Prohibition. In decidingHamilton and Ruppert, Brandeis relied heavily on an 1887 case,Mugler v. Kansas,27 which held that a restriction on the use to whichcertain kinds of property might be put, in the name of the state'spower to preserve health, safety, and morals, could not be deemed ataking of property in violation of the fifth amendment.28 Mugler hap-pened to involve a state Prohibition statute, but Brandeis relied on itagain in a case that had nothing to do with Prohibition-PennsylvaniaCoal Company v. Mahon.29

The issue in Mahon, decided in 1922, was the validity of a statestatute that prohibited the mining of coal if the mining would causethe subsidence of a private dwelling.30 Before the statute was enacted,

"nothing wrong in the government's confiscation of a motorcar on the grounds that a passen-ger in it had a small flask of whisky with him." Id.

25 See, e.g., Gilbert v. Minnesota, 254 U.S. 325 (1920) (Brandeis, J., dissenting). In Gilbert,the Court upheld a statute prohibiting the teaching of pacifism. Brandeis, in dissent, wrote, "Icannot believe that the liberty guaranteed by the Fourteenth Amendment includes only libertyto acquire and to enjoy property." Id. at 343. See also Letter from Brandeis to Felix Frank-furter (June 15, 1928), in 5 LETTERS OF LOUIS D. BRANDEIS 345 (M. Urofsky & D. Levy eds.1978) [hereinafter LETTERS].

26 See Urofsky, The Brandeis-Frankfurter Conversations, 1985 Sup. Cr. REV. 299, 320,325.

27 123 U.S. 623 (1887).28 Mugler involved a state statute prohibiting the manufacture or sale of liquor for use as a

beverage. The plaintiff brewery owners argued that the statute effected a taking of their prop-erty without compensation in violation of the fourteenth amendment. 123 U.S. at 631. TheCourt upheld the statute, but-according to Laurence Tribe-made it clear that "it wouldscrutinize the substantive reasonableness of state legislation pursuant to the due processclause," thus presaging the Lochner era. L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 8-1,at 566 (2d ed. 1988) (discussing Lochner v. New York, 198 U.S. 4i (1905)).

29 260 U.S. 393 (1922).30 See Mahon, 260 U.S. at 412 (discussing Kohler Act, 274 Pa. Stat. 489 (1921)).

1358 [Vol. 13:1355


the Mahon family had entered into a contract with a coal company,allowing the company to mine under their house. Once the statutewas passed, however, the Mahons attempted to use it to prevent en-forcement of the contract. Justice Holmes, writing for the Court,struck down the state statute as an unconstitutional taking of prop-erty without just compensation: the coal company had entered into acontract and was entitled to its benefits, or at least to compensationfor their loss.3 1 Brandeis, dissenting alone, cited Mugler for the prop-osition that such a restriction on the use of property was permissiblewhen the state was acting pursuant to its police power-that is, itspower to protect public health, safety, and morals. a2

In a conversation with Felix Frankfurter, Brandeis himself drewa connection between Mugler, Hamilton, and Mahon33 ,-a connectionthat reveals both how much Brandeis's opinion in Hamilton reflectedhis general approach to claims of property rights, and how deep werehis differences with Holmes in this area. Brandeis recalled that thepreliminary vote in Hamilton had been five-to-four the other way-that is, in favor of invalidating the War Time Prohibition Act.34

Shortly afterwards, Chief Justice White encountered Holmes on thestreet, at which time Holmes mentioned that he might change hisvote.3 White then assigned the opinion to Brandeis because, as Bran-deis put it, "he thought I could get Holmes more easily."36 Brandeisdid manage to win Holmes's vote in both Hamilton and in Ruppert,but the vote came grudgingly, with the comment that Mugler was "[a]mighty fishy decision."' 37 Brandeis observed that "Holmes [had]balked on 'Due Process'-the thing that prevailed with him in theMahon case later."'3 Indeed, soon after the decision in Mahon,Holmes, in a letter to Harold Laski, repeated his observation that"Mugler v. Kansas was pretty fishy." ' a9

Brandeis attributed Holmes's dislike for Mugler to "his impa-tience with prohibition. . . ."I But in fact, Holmes's attitude towardsProhibition no more explains his dislike for Mugler than Brandeis'sattitude towards Prohibition explains his reliance on it. As Brandeis

31 Mahon, 260 U.S. at 415-16.32 Id. at 418 (Brandeis, J., dissenting).33 Urofsky, supra note 26, at 324.34 Id.35 Id.36 Id.37 A. BICKEL, THE UNPUBLISHED OPINIONS OF MR. JUSTICE BRANDEIS 229 (1957).38 Urofsky, supra note 26, at 324 (footnote omitted).39 A. BICKEL, supra note 37, at 229.40 Urofsky, supra note 26, at 324.

1991] 1359

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recognized on another occasion, Holmes's vote in Mahon-and by ex-tension, his dislike for Mugler-was based on what Brandeis termedhis "undue regard for property" rights.41 To Brandeis, propertyrights were something that the state could remold from time to time,in order "to meet the changing needs of society.""' Whether the statewas acting in order to protect society from the evils of drink-as inHamilton--or whether its purpose was to prevent houses from cavingin-as in Mahon -Brandeis's position remained the same.

Thus, three of the five cases cited by Mason and Strum as signify-ing a lapse in Brandeis's commitment to civil liberties in the area ofProhibition4 3 can be explained on the basis of Brandeis's attitude to-wards property rights. A fourth Brandeis opinion, Albrecht v. UnitedStates," merely stated a well-settled principle of double jeopardy lawthat remains largely unchallenged to the present day, even by staunchcivil libertarians. The defendants, convicted under the National Pro-hibition Act, raised a number of objections, most of which went todefects in the information and affidavits involved in the prosecution.43

Writing for a unanimous court, Brandeis disposed of these arguments.Then, apparently as an afterthought, Brandeis raised and rejected thedefendants' claim that the double jeopardy clause 46 had been violated.The basis of the claim was that the defendants had been convicted onfour counts of illegal possession of liquor and four counts of illegalsale, but the liquor they were convicted of possessing was the same asthe liquor they were convicted of selling."

Mason and Strum seize on Brandeis's rejection of this doublejeopardy claim as evidence that he abandoned his principles when theenforcement of Prohibition was at issue.48 But it is apparent thatneither Brandeis nor the rest of the Court viewed the double jeopardypoint as controversial. Brandeis's early drafts of Albrecht focus onlyon the claimed defects in the information, as do the extensive notesmade by his law clerk. At some point, Brandeis inserted a handwrit-ten paragraph discussing the double jeopardy point. It seems to have

41 Id. at 321.42 See Truax v. Corrigan, 257 U.S. 312, 376 (1921) (Brandeis, J., dissenting). Brandeis

actually wrote that "rights of property and the liberty of the individual must be remoulded,from time to time, to meet the changing needs of society." Id In fact, however, he was morewilling to countenance that remolding when property rights were at issue.

43 See supra note 17.44 273 U.S. 1 (1927).45 Id. at 4.46 U.S. CONST. amend. V ("[N]or shall any person be subject for the same offence to be

twice put in jeopardy of life or limb.47 Albrecht, 273 U.S. at 4.48 See A. MASON, supra note 4, at 566; P. STRUM, supra note 7, at 330.

1360 [Vol. 13:1355


occasioned no debate among the Justices: the final version of the para-graph in the opinion is essentially identical to Brandeis's handwrittendraft.49

Nor was there any reason for controversy. Brandeis reasonedthat no double punishment had been imposed because "possessingand selling are distinct offenses. One may obviously possess withoutselling; and one may sell and cause to be delivered a thing of which hehas never had possession. ... "so Brandeis noted that although the"precise question" had apparently never been discussed "in connec-tion with the National Prohibition Act; .... the general principle[was] well established."51 In fact, Brandeis's decision in Albrecht wasa precursor to what has become known as "the Blockburger test":"[W]here the same act or transaction constitutes a violation of twodistinct statutory provisions, the test to be applied to determinewhether there are two offenses or only one, is whether each provisionrequires proof of an additional fact which the other does not."5 2 TheBlockburger test is not only still good law, but it has been applied incloser cases than Albrecht, and by courts arguably more alert to thedefense of civil liberties.5 3

The fifth and final case mentioned by Mason and Strum is Lam-bert v. Yellowley,5 4 in which Brandeis, writing for a five-member ma-jority, rejected a challenge to a provision of the National ProhibitionAct that restricted the amount of liquor that could be prescribed by aphysician. 5 The Act made it illegal to prescribe more than one pintof liquor to the same patient within a period of ten days. A "distin-guished physician," Dr. Samuel Lambert, challenged this restriction

49 See The Louis D. Brandeis Papers, American Legal Manuscripts (available in theHarvard Law School Library) (also available from University Publications of America onmicrofilm).

50 Albrecht, 273 U.S. at 11.51 Id. at 11-12 (citing Morgan v. Devine, 237 U.S. 632 (1915); Gavieres v. United States,

220 U.S. 338 (1911); Burton v. United States, 202 U.S. 344 (1906)).52 Blockburger v. United States, 284 U.S. 299, 304 (1932) (citing Gavieres v. United States,

220 U.S. 338, 342 (1911) and with a notation to compare Albrecht, 270 U.S. at 11-12).53 See United States v. Woodward, 469 U.S. 105 (1985) (per curiam); Albernaz v. United

States, 450 U.S. 333 (1981). But see Gore v. United States, 357 U.S. 386, 395-97 (1958)(Douglas, J., dissenting) (advocating overruling Blockburger). The double jeopardy questionin Blockburger itself was arguably closer than that in Albrecht. Blockburger held that it waspermissible to convict a defendant of one count of selling an illegal drug "not in or from theoriginal stamped package," and one count of selling the same illegal drug "not in pursuance ofa written order of the purchaser ... " Blockburger, 284 U.S. at 301. Thus, the convictions notonly involved the same substance, but they both involved the same sale of the substance.

54 272 U.S. 581 (1926).55 Act of Oct. 28, 1919, ch. 85, § 7, 41 Stat. 305, 311, repealed by Act of Aug. 27, 1935, ch.

740, 49 Stat. 872.

1991] 1361

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on the ground that it exceeded the powers delegated to Congress bythe eighteenth amendment. Noting that the preponderance of medi-cal opinion was against the use of alcoholic beverages for medicinalpurposes, the Court held that Congress had acted within its power inimposing the restriction.16

It is far from clear that Lambert was a civil liberties case at all.The focus of both the majority and the dissent was not whether Dr.Lambert had a constitutional right to exercise his medical judgmentfree from government restriction, but rather, whether the federalgovernment had the power to impose the restriction or whether suchpower resided exclusively in the states. Brandeis reasoned that be-cause the federal government had the power to prohibit the sale ofintoxicating liquor for beverage purposes, it had the incidental powerto ensure that liquor intended for other purposes was not diverted touse as a beverage. 7 Even assuming that the restriction at issue in thecase implicated some aspect of the Bill of Rights-a difficult argu-ment to make, since the medical profession is heavily regulated-Lambert seems to be a slender reed on which to base the accusationthat Brandeis trampled on civil liberties in the name of Prohibition.

If any further proof is needed that Brandeis's Prohibition opin-ions are consistent with his general judicial outlook, one need look nofurther than Olmstead v. United States.5" Olmstead was the occasionfor Brandeis's famous dissent, arguing that evidence obtained by ilie-gal government wiretapping should not be admissible in federal court.It foreshadowed the development of present-day fourth amendmentanalysis59 and laid the groundwork for the evolution of a constitution-ally-based right to privacy.' The illegal wiretapping at issue hadbeen conducted by federal Prohibition officers attempting to break upa massive bootlegging operation, but these facts clearly made littledifference to Brandeis. When he perceived a violation of fundamentalconstitutional rights, Brandeis was quite willing to place limits on theenforcement of Prohibition, whatever his own private attitude to-wards such enforcement may have been.

And what was that attitude? Did Brandeis uphold the enforce-ment of Prohibition simply because it was "the law of the land," and

56 Lambert, 272 U.S. at 590-91, 596.57 Id. at 596.58 277 U.S. 438 (1928).

59 See Katz v. United States, 389 U.S. 347, 352-53, 360-62 (1967). Katz explicitly over-ruled Olmstead, and Justice Harlan's concurrence enunciated the "reasonable expectation ofprivacy" test that is currently in use. Id. at 360-61 (Harlan, J., concurring).

60 See Roe v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381 U.S. 479 (1965).

1362 [Vol1. 13:1355


was he "relieved" when repeal came, as Alfred Lief has claimed?6'Certainly, there is some evidence to support this view. In 1891, Bran-deis had appeared before the Massachusetts legislature on behalf ofthe state's liquor dealers, arguing against the passage of a bill thatwould have restricted the sale of liquor.62 Although he seems to havebeen motivated primarily by a desire to make the liquor dealers "re-spectable" and to put an end to their flagrant bribery of state legisla-tors, he also clearly believed that the legislation was misguided.63 Asummary of his argument, which was widely circulated as a pam-phlet, ran as follows:

Liquor drinking is not a wrong; but excessive drinking is.Liquor will be sold; hence the sale should be licensed.Liquor is dangerous; hence the business should be regulated.No regulation can be enforced which is not reasonable.

The better the men who sell liquor, the less the harm done by it.Hence, strive to secure for the business those who are respectable.Self-respect and prosperity are the most effective guardians ofmorals.Unenforceable or harassing laws tend to make criminals."

Thus, in 1891 at least, Brandeis recognized the futility of a law thatattempted to change so ingrained a habit as the drinking of alcoholicbeverages.65

In addition, comments in Brandeis's correspondence clearly indi-cate that, as a young man, he engaged in social drinking and saw

61 A. LIEF, BRANDEIS: THE PERSONAL HISTORY OF AN AMERICAN IDEAL 427 (1936 &

photo. reprint 1971). Lief provides no sources or citations for these statements.Brandeis's close friend Felix Frankfurter personally disagreed with Prohibition, but sup-

ported its enforcement as the only "honest" course to take. See 5 LETTERS, supra note 25, at103 n.l. And Oliver Wendell Holmes was, according to Brandeis, "impatient" with Prohibi-tion, see supra text accompanying notes 36-41, but was willing to uphold its enforcement.

62 The legislation would have banned the sale of liquor without a meal and would haveallowed owners of real estate within twenty-five feet of a proposed saloon to prevent the grant-ing of a liquor license. L. PAPER, BRANDEIS 37 (1983).

63 See I LETTERS, supra note 25, at 99, 102 n. 16; Letter from Brandeis to George WestonAnderson (March 6, 1916), in 4 LETTERS, supra note 25, at 104-07; A. MASON, supra note 4,at 89-90.

64 A. MASON, supra note 4, at 90.65 Brandeis's argument came back to haunt him in later years, when the Anti-Saloon

League used it as the basis for opposing his nomination to the Supreme Court in 1916. Dr.James Cannon, Jr., a Methodist bishop and representative of the League, introduced Bran-deis's 1891 pamphlet into evidence and argued that Brandeis would not be impartial in decid-ing Prohibition cases. See The Nomination of Louis D. Brandeis to be an Associate Justice of theSupreme Court of the United States: Hearings Before the Sub-Comm. of the Senate Comm. onthe Judiciary, 64th Cong., 1st Sess. (1916) (statement of Dr. James Cannon), reprinted in 2THE SUPREME COURT OF THE UNITED STATES: HEARINGS AND REPORTS ON SUCCESSFULAND UNSUCCESSFUL NOMINATIONS OF SUPREME COURT JUSTICES BY THE SENATE JUDICI-ARY COMMITTEE, 1916-1972, at 1054-72 (R. Mersky & J. Jacobstein comps. 1975).

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CARDOZO LAW REVIEW

nothing wrong with it. In 1879, for example, he spent what soundslike a pleasant evening with Samuel Warren, his law partner, and Oli-ver Wendell Holmes telling jokes and drinking a "mixture of Cham-pagne and Beer."' 66 Moreover, while Brandeis was in Boston, hisbrother Alfred, who still lived in Brandeis's native Louisville, senthim occasional shipments of Budweiser and Kentucky bourbon.67

"Warren... has made but little progress with the Bourbon you senthim," Brandeis reported to Alfred in 1880.68 "Have not taken any ofit myself, but the sight of the bottle pleased my eyes."'69 Even as lateas 1919, Brandeis wrote a letter to his wife in which he quoted withapproval a passage from the Book of Esther endorsing a laissez-faireattitude towards the consumption of wine.7 °

But other evidence clearly indicates a shift in his views on thewisdom of Prohibition. In 1917, Brandeis began to encourage the edi-tors of a magazine, The Survey, to undertake a study of the effect ofProhibition on American society and the economy.7 ' That he ex-pected the effect to be beneficial is clear from a follow-up letter hewrote in 1920, in which he identified "drink" as one of "the maincauses of misery," along with unemployment and low wages.72 Thearticle, which focused, as Brandeis had suggested, on one presumablyrepresentative community, was a virtual paean to the benefits ofProhibition:

Grand Rapids [the community chosen by the editors] today is freefrom drunkenness if not from drink. . . . Families spend moretime together. The front porch and the garden have come up asthe corner saloon has gone down .... The trouble-making bar-keeper is now not the first to welcome the newcomer to the city orthe home-comer on his way from the pay-window.... Prohibitionhas all but emptied the county jail.... The police force has beengreatly reduced.... The number of arrests has been almost halved

66 Letter from Louis Brandeis to Alfred Brandeis (July 31, 1879), in 1 LETTERS, supra note

25, at 45.67 P. STRUM, supra note 7, at 49.68 Letter from Louis Brandeis to Alfred Brandeis (September 11, 1880), in 1 LETTERS,

supra note 25, at 56.69 Id.70 Letter from Louis Brandeis to Alice Goldmark Brandeis (June 14, 1919), in 4 LETTERS,

supra note 25, at 400. Brandeis quoted the following passage from Esther 1:8: "And the drink-ing was according to the law: none could compel; for so the king had appointed to all theofficers of the house; that they should do according to every man's pleasure." Id.

71 Letter from Brandeis to Arthur Piper Kellogg (October 22, 1917), in 4 LETTERS, supranote 25, at 320-21.

72 Letter from Brandeis to Paul Underwood Kellogg, (April 25, 1920), in 4 LETTERS,

supra note 25, at 461.

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in the two years during which prohibition has been in effect.7 3

Pleased with the fruits of his suggestion, Brandeis sent a congratula-tory letter to the editors, which was printed in the magazine. Hesingled out for special praise a section of the article discussing the factthat the widespread practice of distilling liquor at home was more orless winked at by the authorities. 75 This was a far cry from his 1891argument that a Prohibition law, being essentially unenforceable,would turn decent citizens into criminals.

Brandeis's growing support for Prohibition was made evenclearer when he wrote to Frankfurter in 1923 that the Volstead Actshould not be changed "in any respect."' 76 To those who objected thatnational Prohibition would increase federal power at the expense ofthe autonomy of the states-an objection that Brandeis himself mighthave been expected to raise-he had a ready answer: "Merely providein the annual appropriation bills that the [federal] prohibition moneyshall be used for protection against smuggling from abroad and fromone state or territory into another, ' 77 and leave the states to enforcethe law on a local level. Brandeis had already recommended this ap-proach to President Wilson in a 1923 memorandum, with which heenclosed an opinion he had written for the Court holding that a nine-teenth-century state liquor licensing law had not been superseded bythe Volstead Act.78 Indeed, Brandeis went so far as to suggest thatthe eighteenth amendment was encouraging the states to policethemselves.7 9

Brandeis's attitude towards Prohibition is further illuminated byan anecdote related by Brandeis's one-time law clerk, Dean Acheson.One evening "during the twenties," Acheson heard Professor ManleyHudson of Harvard holding "forth on Brandeis, the Scientist of theLaw, who had brought the methods of the laboratory into the court-house, who put facts through test-tube treatment, and so on."-80 Im-

73 The Survey, Nov. 6, 1920, at 186-87.74 The Survey, Nov. 13, 1920, at 245 (letter from Justice Brandeis to the Editors).75 Letter from Brandeis to Paul Underwood Kellogg (November 7, 1920), in 4 LETrERS,

supra note 25, at 497-98; The Survey, supra note 74, at 245.76 Letter from Brandeis to Felix Frankfurter (October 24, 1923), in 5 LETrERS, supra note

25, at 103.7 Id; see also Letter from Brandeis to Felix Frankfurter (September 25, 1922), in 5 LET-

TERS, supra, note 25, at 65.78 Letter from Brandeis to Woodrow Wilson (April 15, 1923), in 5 LETTERS, supra note

25, at 91. The opinion Brandeis enclosed was Vigliotti v. Pennsylvania, 258 U.S. 403 (1922).79 Letter from Brandeis to Felix Frankfurter (May 20, 1921), in 4 LETrERS, supra note 25,

at 559.80 D. ACHESON, MORNING AND NOON 95 (1965).

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mediately after this discourse, Acheson introduced Hudson to theman he had just been praising. Then, continued Acheson,

[i]t was easy to guide the conversation to the growing political is-sue of prohibition and, in the course of it, to provoke Mr. Hudsoninto asserting that moral principles were no more than generaliza-tions from the mores or accepted notions of a particular time andplace.

The eruption was even more spectacular than I had antici-pated. The Justice wrapped the mantle of Isaiah around himself,dropped his voice a full octave, jutted his eyebrows forward in amost menacing way, and began to prophesy. -Morality was truth;and truth had been revealed to man in an unbroken, continuous,and consistent flow by the great prophets and poets of all time. Hequoted Goethe in German and from Euripides via Gilbert Murray.On it went-an impressive, almost frightening, glimpse of an ele-mental force.

When, at length, we were on the sidewalk... I asked Hudsonwhat he thought now about the Scientist of the Law. He stoodthere shaking with emotion, making little gestures as though tryingto get his cuffs out of his coat-sleeves. "Monstrousl" he kept say-ing. "It's monstrous!"'"

If this story is any guide, it appears that Brandeis not only supportedProhibition in his later years, but that he believed such support wasdictated by unchanging principles of morality. It may be as difficultfor modem-day champions of Brandeis to fathom this belief as it wasfor poor Professor Hudson, but, as Acheson comments, "if some of[Brandeis's] admirers knew him better they would like him less." 2

Why Brandeis shifted from skepticism concerning "the noble ex-periment" to apparently fervent support of it is something of a mys-tery. His correspondence and public statements clearly document theshift itself, but give no clue as to what lay behind it. We can, how-ever, speculate. One cause of the change in Brandeis's attitude mayhave been that as he aged, the ascetic streak that had always beenwith him grew more pronounced. Strum notes that in later years,"Brandeis and his wife gradually eliminated from their lives anythingthey considered excessive, including alcoholic beverages,"8 3 and theshipments of whiskey sent by Brandeis's brother Alfred "were re-placed by whole hams." 4 Although Brandeis remained convinced ofthe importance of recreation in a well-rounded life, it is difficult to

81 Id. at 95-96.82 Id. at 95.83 P. STRUM, supra note 7, at 49.84 Id.

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imagine the Brandeis of the Supreme Court years whiling away anevening with Holmes, telling jokes and drinking a mixture of cham-pagne and beer. 5

Another possible reason for Brandeis's enthusiasm for Prohibi-tion was his emerging belief that ordinary individuals were capable ofgreat things if they would only recognize their limitations. As Frank-furter put it in notes on his conversations with Brandeis, "[alt bottomof most of [Brandeis's] philosophy--or rather opinions on affairs-ishis sense of perfection together with his sense of man's meager capac-ity-we are not great men-meager equipment & difficulties oftask." 6 Liquor, of course, only accentuated man's natural limita-tions; without the temptation of strong drink, much more might beaccomplished.

Moreover, it should be remembered that Brandeis was not theonly one to experience a change of attitude with regard to Prohibition;the rest of the country did so too. In 1913, only ten states were dry,but by 1917, that number had increased to twenty-six, and by 1919, tothirty-two. 87 Nor was the linkage between alcohol and immoralitytotally without foundation. The saloon of the days before Prohibitionwas often not a pretty sight, and workingmen sometimes did exhausttheir paychecks there at the expense of their families a.8 The Survey'sstudy of the effects of Prohibition in Grand Rapids is replete withstories of families torn apart by drink and made whole again byProhibition. 9

While the genesis of Brandeis's support for Prohibition maynever be entirely clear, it is clear that that support did not cause anyweakening of his commitment to civil liberties in the cases that camebefore him, as Mason and Strum have claimed. His major decisionsin the area of Prohibition are entirely explicable on the basis of hisattitude towards constitutionally based property rights. Indeed, oneof the cases that figured prominently in the making of his reputationas a civil libertarian--Olmstead-was itself a Prohibition case. Per-haps the lesson of Brandeis's Prohibition opinions is not, as Masonwould have it, that "the prophet stumbled," 90 but that "the prophet"

85 See supra notes 66-69 and accompanying text. It is, of course, not so difficult to imaginethe Holmes of the Supreme Court years doing this.

86 Urofsky, supra note 26, at 308-09; see also P. STRUM, supra note 7, at 406-16.87 J. SEMONCHE, CHARTING THE FUTURE: THE SUPREME COURT RESPONDS TO A

CHANGING SOCIETY, 1890-1920 375 (1978).88 See A. SINCLAIR, ERA OF EXCESS: A SOCIAL HISTORY OF THE PROHIBITION MOVE-

MENT 76-79 (1964).89 The Survey, supra note 73, at 186.90 A. MASON, supra note 4, at 566.

1991] 1367


was able to divorce from his decision making his conviction that Pro-hibition was revealed truth. As Dean Acheson has observed, "[w]hatwas truly surprising was not that Brandeis had absolutist convictionson the nature of truth, but that he kept his beliefs and emotions sosternly, even rigidly, disciplined and controlled in the performance ofhis judicial duties."91

91 D. ACHESON, supra note 80, at 96.

BOOK REVIEW

ABE FORTAS

ABE FORTAS: A BIOGRAPHY. By Laura Kalman. New Haven: YaleUniversity Press, 1990. xiii, 499 pp.

Sidney Fine*

How will Abe Fortas be remembered by historians and others inthe years to come? One might guess that it will be as a SupremeCourt Justice whom the Senate refused to confirm when the Presidentof the United States nominated him to be Chief Justice of the UnitedStates and then, shortly thereafter, as a Justice who felt compelled toresign from the Supreme Court. This would certainly be the impres-sion derived from Bruce Allen Murphy's Fortas: The Rise and Ruin ofa Supreme Court Justice.' In a book whose text runs to 599 pages,Murphy devotes only 159 pages to Fortas's career before PresidentJohnson nominated him to serve on the Court. A reader of ProfessorLaura Kalman's biography of Fortas2 might not, however, necessarilycome to the same conclusion. Kalman, to be sure, is concerned withFortas's "ruin" as a Supreme Court Justice, but she also devotes morethan half her space to other aspects of Fortas's life and career.

Fortas was born to Orthodox Jewish parents in Memphis, Ten-nessee, where Fortas grew up and where, interestingly enough, he wasdescribed by a newspaper as "a natural born hustler" (p. 9). Fortaswas to drift away from his Orthodox upbringing, and although heeventually became a strong supporter of Israel, he cared little aboutJudaism as a religion, and he married outside the Jewish faith. Hegraduated from Southwestern College and then went on to the YaleLaw School. Here he was "deeply affected" by legal realism (p. 17)and became the prot6g6 of one of his teachers, William 0. Douglas.

After graduating from the Yale Law School in 1933, the twenty-three-year-old Fortas became one of that group of bright young law-yers, many of them Jewish, who enlisted in the service of the NewDeal. Fortas joined the Legal Division of the Agricultural Adjust-ment Administration and, of all things, became an expert on peaches.

* Andrew Dickson White Distinguished Professor of History, University of Michigan.

B.A., 1942, Western Reserve University; Ph.D., 1948, University of Michigan.I B. MURPHY, FORTAS: THE RISE AND RUIN OF A SUPREME COURT JUSTICE (1988).2 L. KALMAN, ABE FORTAS: A BIOGRAPHY (1990).

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Proving himself a "brilliant attorney," (p. 41) Fortas moved on to theSecurities Exchange Commission (SEC) in 1934. He remained thereuntil 1938, combining his government service with some teaching at.the Yale Law School. In 1939 he transferred to the Department ofthe Interior, where, except for a very brief interval, he served until1945, rising to the rank of Undersecretary. Professor Kalman pro-vides a satisfactory account of Fortas's New Deal service, the fullest,actually, that we have, but she could have enriched and fleshed outthis section of her biography had she consulted relevant agencyrecords in the National Archives.

It is a well-known fact that there was a good deal of anti-Semi-tism in the United States during the era of Franklin D. Roosevelt.3

As Professor Kalman makes evident, the New Dealers themselveswere defensive about the number of Jews like Fortas serving in Wash-ington at the time (p. 68). Even Secretary of the Interior HaroldIckes, one of the most outspoken defenders of the Jews in public, "pri-vately disliked" them (p. 121). One episode involving his religion par-ticularly galled Fortas, as Kalman makes clear. After Fortas joinedthe Navy in 1943, Ickes recommended that he be placed on inactivestatus to head a mission of the Petroleum Reserve Corporation to theMiddle East. Roosevelt himself, however, prohibited Fortas frommaking the trip because Saudi Arabia's King Ibn Saud would not per-mit the inclusion of Jews in the mission (pp. 105, 109). Promptlydischarged from the Navy for medical reasons, Fortas returned to theDepartment of the Interior.

In 1945 Fortas left government service for private legal practiceand the newly formed firm of Arnold, Fortas and Porter. Fortas wasin many ways the dominant partner in this famous firm. It was hewho "controlled" its affairs and originated a good deal of its lucrativelegal business (p. 187). What distinguished Arnold, Fortas andPorter, however, was less its wealthy clients than the extent of its probono work. Loyalty cases deriving from the federal loyalty-securityprogram took up as much as twenty to fifty percent of the firm's timeprior to 1949 (p. 133). In discussing this aspect of the work of Ar-nold, Fortas and Porter, Professor Kalman fails to distinguish be-tween the Truman and Eisenhower loyalty programs and does notsufficiently explain the full implications of the John Peters case4 inso-

3 See JEws IN THE MIND OF AMERICA (G. Salomon ed.) (1966).4 Peters was a professor of medicine at Yale and Special Consultant to the United States

Public Health Service. The Supreme Court held that the Eisenhower loyalty program distin-guished between sensitive and nonsensitive positions and that Peters's position fell into thelatter category. See Peters v. Hobby, 349 U.S. 331 (1955).

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ABE FOR TAS: A BIOGRAPHY

far as nonsensitive government jobs were concerned. As Fortas's rolein the celebrated case of Gideon v. Wainright 5 attests, not all the probono work of Arnold, Fortas and Porter involved loyalty-securitycases. Much of Fortas's time during this period of his life, ProfessorKalman informs us, was devoted to Puerto Rico, where Luis MufiozMain was a Fortas favorite, to put it mildly.'

In many ways the most important of Fortas's "clients" while hewas engaged in private law practice was Lyndon Johnson. The twohad first met in 1939, and they had soon become friends. What ce-mented the relationship was Fortas's role as legal advisor to Johnsonin the very closely contested senatorial primary in Texas in 1948 thatled to Johnson's election to the Senate. As both Vice-President andPresident, Johnson relied on Fortas's advice and assistance, so muchso that, Kalman tells us, Fortas devoted less and less time to the legalwork of Arnold, Fortas and Porter (pp. 228-29).

In July 1965 Johnson pushed an altogether unwilling Fortas, thelawyer the President most admired, onto the Supreme Court, thuscontributing to Fortas's ultimate "ruin." Preferring the active life hehad been leading, Fortas did not look forward either to the contem-plative life of a Supreme Court Justice or the diminution in his incomethat the position would bring. Although Professor Kalman describesFortas's major Court opinions, such as In re Gault,' Brown v. Louisi-ana, and Epperson v. Arkansas,9 she does not explore Fortas's Courtyears in any real depth. Relying primarily on the Abe FortasSupreme Court Papers and interviews as well as published materials,she did not, save for the papers of William 0. Douglas, examine therelevant manuscript collections of Fortas's fellow Justices for theyears that he was on the Court. Even though Hugo Black, for exam-ple, was Fortas's chief antagonist on the Court, Kalman did notbother to consult the Hugo Black Papers in the Library of Congress.

Professor Kalman appraises Fortas as a result-oriented Justicewho "consistently tried to legalize his personal prejudices" (p. 271),and who "reached decisions first and rationalized them later" (p.272). As a Justice, Fortas was a defender of the right of privacy and

5 372 U.S. 335 (1963) (held that sixth amendment right to counsel is incorporated byfourteenth amendment and thus applies to state prosecutions).

6 Mufioz Main was the long-time governor of Puerto Rico.

7 387 U.S. 1 (1967) (held that sixth amendment right to counsel applies in juvenile delin-quency proceedings in which institutional commitment was a possibility).

8 383 U.S. 131 (1966) (first amendment protects rights of blacks to hold peaceful sit-in in

public library to protest segregation).9 393 U.S. 97 (1968) (struck down state statute prohibiting teaching of evolution as violat-

ing establishment clause of first amendment).

1991] 1371

CARDOZO LAW REVIEW [.

of the underprivileged, but he tended to be conservative and "legalis-tic" (p. 271) in dealing with business cases. Protective of some formsof dissent, such as the violation of a segregation ordinance"° or thedefiance of a school ordinance barring the wearing of black arm bandsby students to protest the war in Vietnam, II Fortas came to view civildisobedience, in Professor Kalman's words, as "morally, politically,and legally unacceptable when it involved violation of constitutional,valid laws merely to dramatize dissent" (p. 284). Despite Fortas'sbrief service on the Court, sixty-five legal scholars in a 1972 poll ratedhim among the near-great Justices (p. 393).

No sooner had Fortas joined the Court than he agreed to serve asa consultant to the nonprofit Louis Wolfson Foundation for a fee of$20,000 per year beginning on January 1, 1966, and continuing for hislifetime and that of his wife should he precede her in death. Wolfson,who had become a client of Fortas's law firm just before Fortas wenton the bench, was the subject at the time of an SEC investigation. Inthe spring of 1966, the SEC recommended Wolfson's prosecution, andhe was subsequently convicted and jailed. Fortas resigned his con-sultancy in June 1966, but he did not return the initial $20,000 checkhe had received until late December 1966 so as to avoid having toreport the sum to the Internal Revenue Service. Kalman thinks thatFortas, in agreeing to the arrangement with the Wolfson Foundation,was less concerned about his immediate income than about possiblepoverty once his earning power had come to an end (p. 377). She alsocomments, correctly I believe, that the arrangement reflected both"insensitivity and arrogance" on Fortas's part, a belief that his integ-rity could not be subject to question (p. 377).

Fortas would eventually pay the price for the Wolfson deal, justas he would for his continuing role while a Supreme Court Justice asadvisor to the President. Other Justices have engaged in off-the-benchactivities and have offered Presidents advice,"2 but it is doubtful if anyJustice in the entire history of the Supreme Court was so thoroughlyassociated with an incumbent President as Abe Fortas was with Lyn-don Johnson. Always concerned to protect the President and to de-fend what he intended to do, Fortas was involved in major Johnsondecisions in both domestic and foreign affairs, even though he knewprecious little about the latter. That he might in the process be im-

10 Brown v. Louisiana, 383 U.S. 131 (1966).1' Tinker v. Des Moines Indep. School Dist., 393 U.S. 503 (1969).12 See S. FINE, FRANK MURPHY: THE WASHINGTON YEARS 203-35 (1984); B. MURPHY,

THE BRANDEIS/FRANKFURTER CONNECTION (1982); W. Cibes, Jr., Extra-Judicial Activitiesof the United States Supreme Court, 1790-1960 (1975) (unpublished Ph.D. dissertation,Princeton University).

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ABE FOR TAS: A BIOGRAPHY

properly breaching the separation of powers or even compromisinghis position as a Justice does not seem to have troubled Fortas.

In June 1968 Johnson nominated Fortas to serve as Chief Justiceof the United States, but after a prolonged Senate investigation, thePresident had to withdraw the nomination. During the confirmationhearings, Fortas lied about both his role as presidential advisor andhis jurisprudence. He was the victim really of the increasing unpopu-larity of Johnson and the war in Vietnam, whose escalation Fortashad recommended, as well as of the reaction to the decisions of theWarren Court in such areas as obscenity 13 and the rights of defend-ants in criminal cases."4 The next year, after the Wolfson agreementcame to light, Fortas felt compelled to resign from the Court. Hereturned in 1970 to private legal practice, although not with his oldfirm, and he died in 1982. Professor Kalman presents the essentialfacts about Fortas's confirmation defeat and his resignation from theCourt, although not in quite the same detail as the Murphy book,15

and she did not avail herself of Hugh Jones's dissertation on the con-firmation fight that Murphy found so helpful. 6

Fortas sought to discourage the writing of his biography and didnot make it easy for the biographer to discover the inner man. Noone doubted Fortas's brilliance, nor is there any reason to question hiscommitment to a New Deal brand of liberalism. "There was no singleAbe Fortas," Professor Kalman concludes (p. 191). Appropriatelyenough, the speakers at the Fortas funeral service each stressed "adifferent facet" of the man (p. 401). Professor Kalman could havedone a more thorough job of research, but she has nevertheless pro-vided us with an altogether satisfactory biography of the "elusive" (p.2) Abe Fortas.

13 E.g., Ginzburg v. United States, 383 U.S. 463 (1966); A Book Named "John Cleland'sMemoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S. 413 (1966).

14 E.g., Katz v. United States 389 U.S. 347 (1967) (unauthorized electronic eavesdroppingis an illegal search and seizure); United States v. Wade, 388 U.S. 218 (1967) (sixth amendmentguarantees defendant right to counsel at post-indictment line ups); Miranda v. Arizona, 384U.S. 436 (1966) (fifth amendment right against self-incrimination prohibits use of criminalconfession in absence of the reading of the right to remain silent); Mapp v. Ohio, 367 U.S. 643(1961) (fourth amendment prohibition against unreasonable searches and seizures and defend-ant's right to have illegally seized evidence excluded from trial incorporated by fourteenthamendment and thus applies to state prosecutions).

15 B. MURPHY, supra note 1, at ch. XXI-XXIV.16 H. E. Jones, The Defeat of the Nomination of Abe Fortas as Chief Justice of the United

States (1976) (unpublished Ph.D. dissertation, Johns Hopkins University).

1991] 1373

NOTE

HUMAN RIGHTS VIOLATIONS DURING THETIANANMEN SQUARE MASSACRE ANDTHE PRECEDENTS OBLIGING UNITED

STATES RESPONSE

INTRODUCTION

The fundamental human rights1 codified in the Universal Decla-ration of Human Rights2 and other international instruments3 are, bytheir definition, universal. Governments cannot legally ignore theserights to suit their own political purposes. Under articles 55 and 56 ofthe United Nations Charter,4 all member states have an obligation topromote and protect human rights and fundamental freedoms with-out distinction.

Through violent suppression of the pro-democracy demonstra-tion at Tiananmen Square in Beijing on June 3 and 4, 1989, the gov-ernment of the People's Republic of China committed gross violationsof the Constitution,' the Criminal Law,6 and the Criminal Procedure

1 Fundamental human rights are generally defined as "those rights which are inherent in

our nature and without which we cannot live as human beings." UNITED NATIONS, HUMANRIGHTS QUESTIONS AND ANSWERS at 4, U.N. Doc. DPI/919 (1988) [hereinafter QUESTIONSAND ANSWERS]. They are claims that all individuals have equally or should have equallyagainst the societies in which they live. Henkin, The Human Rights Idea in ContemporaryChina: A Comparative Perspective, in HUMAN RIGHTS IN CONTEMPORARY CHINA 7-8 (1986).

2 G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948). The Universal Declaration ofHuman Rights was signed December 10, 1948.

3 International instruments codifying fundamental human rights include the InternationalCovenant on Civil and Political Rights, infra note 10, the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment, infra note 11, the Code ofConduct for Law Enforcement Officials, infra note 12, and the Basic Principles on the Inde-pendence of the Judiciary, infra note 13. Each of these instruments will be discussed infraPart II of this paper.

4 U.N. CHARTER arts. 55, 56. The United Nations Charter was signed June 26, 1945, andentered into force October 24, 1945.

5 ZHONGHUA RENMIN GONGHEGUO XIANFA [Constitution], reprinted in THE LAWS OFTHE PEOPLE'S REPUBLIC OF CHINA (1979-1982) 1-32 (1987) [hereinafter LAWS OF CHINA].The Constitution of the People's Republic of China was adopted at the Fifth Session of theFifth National People's Congress and was promulgated for implementation by the Proclama-tion of the National People's Congress on December 4, 1982.

6 ZHONGHUA RENMIN GONGHEGUO XINGFA [Criminal Law], reprinted in LAWS OF

CHINA, supra note 5, at 87-119. The Criminal Law of the People's Republic of China wasadopted at the Second Session of the Fifth National People's Congress on July 1, 1979, waspromulgated by Order No. 5 of the Chairman of the Standing Committee of the NationalPeople's Congress on July 6, 1979, and became effective January 1, 1980.

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Law7 of the People's Republic of China. In addition, the governmentviolated such international human rights instruments as: the UnitedNations Charter;' the Universal Declaration of Human Rights;9 theInternational Covenant on Civil and Political Rights;1° the Conven-tion against Torture and Other Cruel, Inhuman or Degrading Treat-ment or Punishment;" the Code of Conduct for Law Enforcement

7 ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA [Criminal Procedure Law], re-printed in LAWS OF CHINA, supra note 5, at 120-49. The Criminal Procedure Law of thePeople's Republic of China was adopted at the Second Session of the Fifth National People'sCongress on July 1, 1979, was promulgated by Order No. 6 of the Chairman of the StandingCommittee of the National People's Congress on July 7, 1979, and became effective January 1,1980.

8 U.N. CHARTER arts. 55, 56. For a discussion of China's obligations under the UnitedNations Charter, see infra notes 175-76 and accompanying text.

9 G.A. Res. 217A (III), supra note 2. Chinese officials may argue that the Universal Dec-laration is not a treaty but a resolution adopted by the United Nations General Assembly, andas such, places no legally binding obligation on China. However, the argument is meritless.Through referrals to it in United Nations human rights treaties, conventions, and covenants,and in regional conventions and domestic constitutions, the Universal Declaration hasemerged as a statement of customary international law, binding all nations including China.See Tarnopolsky, Human Rights, International Law and the International Bill of Rights, 50SASKATCHEWAN L. REV. 21 (1985-1986). The Universal Declaration was designed as anenumeration of the "fundamental freedoms" referred to in the United Nations Charter. Sohn,John A. Sibley Lecture: The Shaping ofInt'l Law, 8 GA. J. INT'L & COMP. L. 1, 18 (1978). Thelegal obligations that the Universal Declaration imposes on governments, in this case the Chi-nese government, derives from the duty the United Nations Charter imposes on governmentsto "promote" human rights. Id. at 19. A government's failure to respect the rights recognizedin the Universal Declaration constitutes a violation of the United Nations Charter. Id. at 18;see also RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES§ 701 (1987). For a further explanation of the human rights provisions of the United NationsCharter, see infra notes 175-76 and accompanying text.

10 G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966). TheInternational Covenant on Civil and Political Rights was adopted December 16, 1966, andentered into force March 23, 1976. Although Chinese officials may argue that China hasneither signed nor ratified the International Covenant on Civil and Political Rights and there-fore is not bound by this treaty, the argument is weak. (For a listing of those parties whoratified the Covenant, see QUESTIONS AND ANSWERS, supra note 1, at 12). Like the UniversalDeclaration of Human Rights, the International Covenant on Civil and Political Rights gives"form and content to the general human rights provisions" of the United Nations Charter. Assuch, human rights experts regard the Covenant as a general instrument of the positive inter-national law of human rights, binding all members of the United Nations community, includ-ing those not party to the Covenant. 0. OZGUR, APARTHEID, THE UNITED NATIONS ANDPEACEFUL CHANGE IN SOUTH AFRICA 8 (1982).

11 G.A. Res. 46, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1985). TheConvention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-ment was adopted December 10, 1984 and entered into force June 26, 1987. Insofar as Chinasigned this Convention in December 1986 and ratified it in October 1988, China is legallybound by the Convention's provisions. See AMNESTY INTERNATIONAL, PEOPLE'S REPUBLICOF CHINA, PRELIMINARY FINDINGS ON KILLINGS OF UNARMED CIVILIANS, ARBITRARY

ARRESTS AND SUMMARY EXECUTIONS SINCE JUNE 3, 1989, at 38 (1989) [hereinafter AM-NESTY INTERNATIONAL].

TIANANMEN SQUARE

Officials;1 2 and the Basic Principles on the Independence of theJudiciary.

13

By limiting its sanctions against China, the United States violatesits obligation under the United Nations Charter to promote and pro-tect human rights. In addition, the United States violates a variety'ofits own military and economic laws including the Foreign AssistanceAct, 4 the Trade Act,'" the International Financial Institutions Act,' 6

and the Agricultural Trade Development and Assistance Act,'7 all ofwhich link United States foreign assistance to human rightsperformance. '

8

This paper examines the events of the massacre at TiananmenSquare, the domestic and international human rights violations com-mitted by the Chinese government, the Chinese justifications for themassacre, and the United States's duty to sanction China to the fullestextent of international and domestic law.

I. MASSACRE AT TIANANMEN SQUARE AND THE REPRESSIVE

AFTERMATH

From the night of June 3 through June 4, 1989, troops of theChinese People's Liberation Army evacuated the streets of centralBeijing and Tiananmen Square' 9 of all students and residents demon-strating in support of a pro-democracy movement that had been ac-tive since April 1989.20 The evacuation was by no means peaceful;rather, it was accomplished through brute force, with little or no re-gard for humanity.2' When confronted with human and motor vehi-

12 G.A. Res. 169, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1980). TheCode of Conduct for Law Enforcement Officials was adopted December 17, 1979.

13 Seventh United Nations Congress on the Prevention of Crime and the Treatment of Of-fenders, Milan, 26 August-September 1985: Report Prepared by the Secretariat at ch. I, § D.2,U.N. Sales No. E.86.IV.1 (1985) [hereinafter Seventh United Nations Congress]. The BasicPrinciples on the Independence of the Judiciary were endorsed by General Assembly Resolu-tions on November 29, 1985, and December 13, 1985. G.A. Res. 32, at 205 and G.A. Res.146, at 255, 40 U.N. GAOR Supp. (No. 53), U.N. Doc. A/40/53 (1986).

14 Foreign Assistance Act of 1961, 22 U.S.C. § 2304 (1988).Is The Trade Act of 1974, 19 U.S.C. § 2432 (1988).16 The International Financial Institutions Act, 22 U.S.C. §§ 262c, 262g (1988).17 The Agricultural Trade Development and Assistance Act, 7 U.S.C. § 1712 (1988).18 Each of these Acts will be discussed in detail infra Part IV.19 For a detailed account of the massacre at Tiananmen Square, see AMNESTY INTERNA-

TIONAL, supra note 11; H. SALISBURY, TIANANMEN DIARY (1989); INTERNATIONAL LEAGUEFOR HUMAN RIGHTS AND THE AD Hoc STUDY GROUP ON HUMAN RIGHTS IN CHINA, MAS-SACRE IN BEIJING, THE EVENTS OF 3-4 JUNE 1989 AND THEIR AFTERMATH (1989) [hereinaf-ter MASSACRE IN BEIJING].

20 For a brief history of the pro-democracy movement, see infra Appendix A.21 Government officials of the People's Republic of China maintain that the force used by

the People's Liberation Army in the crackdown was moderate, that the troops exercised great

1991] 1377


cle barricades used by the crowd to prevent the advance of the troopsinto the Square, the troops responded by indiscriminately firing on thepeople and recklessly driving armored vehicles and tanks into thecrowd, crushing anyone in their midst.22 Shots were fired not only todisperse the crowd, but to kill people who were often escaping, re-treating, or begging for mercy.23 The troops made no attempt toarrest or detain the crowd; instead, they resorted to the use of lethalforce against unarmed civilians.24

Although the actual number of civilians killed during the massa-cre is uncertain, an account distributed through an underground com-puter network with China indicates that approximately 10,000 peoplewere arrested and 28,790 were wounded between June 3 and June 9.

25

Since the massacre, the Chinese government has repressed thoseindividuals who either participated in the pro-democracy movementand demonstration or who sympathized with the goals of the pro-democracy movement. The government has arbitrarily arrestedthousands of individuals involved with the movement, and has helddetainees in incommunicado detention, often without bringing crimi-nal charges against them.26

According to a People's Daily report in China, approximately10,000 persons have been arrested and detained since the crackdown,5,000 in Beijing alone.27 Criminal charges against these individuals

restraint and that, under the circumstances, the use of force was appropriate. Situation inChina, Note by the Secretary-General submitted pursuant to sub-commission on Prevention ofDiscrimination and Protection of Minorities Resolution 1989/5, 46 U.N. ESCOR (Agenda Item12) at 2, U.N. Sales No. E/CN.4/1990/52 (1990) [hereinafter Note by the Secretary-General].However, numerous eyewitness accounts refute the government's claims. See, e.g., infra notes22-24 and accompanying text. See also infra notes 40-53 and accompanying text.

22 For the text of an eyewitness account, originally recorded in an "Open Letter of theIndependent Student Union of Beijing Universities to the People of the World," see infra Ap-pendix B.

23 MASSACRE IN BEIJING, supra note 19, at 3.24 Id.25 Human Rights and Political Developments in China: U.S.-China Relations: Where Do

We Go From Here?: Hearings Before the Subcommittees on Human Rights and InternationalOrganizations, on Asian and Pacific Affairs, and on International Economic Policy and Trade ofthe House Comm. on Foreign Affairs, 101st Cong., 1st Sess. 219 (1989) [hereinafter Where DoWe Go From Here?] (statement of Ke Gang, Director, China Communist Party ResignationCoordinating Comm.). Government officials of the People's Republic of China have statedthat at most hundreds of people were killed in the crackdown. Deng Conciliatory Over Crack-down, N.Y. Times, October 19, 1989, at A12, col. 4. However, the government has donenothing to substantiate its estimate of the number killed. In fact, the government has ob-structed the discovery of truth by ordering hospitals and crematoria not to disclose the numberdead. MASSACRE IN BEIJING, supra note 19, at 17-18.

26 INTERNATIONAL LEAGUE FOR HUMAN RIGHTS, HUMAN RIGHTS IN CHINA: THE RE-

PRESSION CONTINUES (1990) [hereinafter THE REPRESSION CONTINUES].27 See Where Do We Go From Here?, supra note 25, at 219 (statement of Ke Gang).

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include involvement in "counter revolutionary" activities, disruptionof traffic or public order, attacks on soldiers or military vehicles, sabo-tage, and looting.2 Among those arrested were students, workers,peasants, teachers, writers, journalists, artists, academics, military of-ficers, and the unemployed. 9 Some of these individuals were subjectto public denunciation, torture, and other forms of cruel, degrading,and inhuman treatment.3" Chinese television repeatedly displayedscenes of armed soldiers surrounding their handcuffed prisoners.Those in custody appeared beaten, with bruised faces and swollenlips. They were often pictured handcuffed to trees or with their armspinned back and their heads forced down in the notorious "airplane"position.3'

The government has imposed death sentences upon individuals, apenalty which is clearly disproportionate to the crimes committed. Ithas imposed these sentences through special expedited proceedingswhich do not afford the accused an adequate opportunity to receivethe legal assistance necessary to prepare an effective defense.3 2 Forexample, in the first trial of Chinese pro-democracy demonstrators,the government sentenced three workers to death for setting fire to atrain that had killed six demonstrators who were sitting on the train'stracks as a protest against the military crackdown.33 The workerswere arrested, convicted, and sentenced to death, all within fourdays.34

Since the crackdown, the government has declared many organi-zations with peaceful goals and the means for achieving these goalsillegal, and has arrested or harassed the organizations' members.35 Bythe end of June 1989, the Chinese government reportedly declaredthirty-one organizations in eleven provinces illegal. 36 The Autono-mous Federation of Beijing University Students37 and the Beijing

28 AMNESTY INTERNATIONAL, supra note 11, at 2.29 Id.30 MASSACRE IN BEIJING, supra note 19, at Executive Summary. For the account of a

foreigner who was tortured by a Chinese soldier, see infra Appendix C.31 See Land of Fear and Trembling, ASIAWEEK, June 30, 1989, at 28, 32; The Purge Be-

gins, ASIAWEEK, June 23, 1989, at 22, 29.32 MASSACRE IN BEIJING, supra note 19, at Executive Summary.33 Kristof, 3 Chinese Workers Sentenced to Die, N.Y. Times, June 16, 1989, at Al, col. 6.34 Id.

35 MASSACRE IN BEIJING, supra note 19, at Executive Summary.36 Note by the Secretary-General, supra note 21, at 28.

37 The Autonomous Federation of Beijing University Students was established in mid-April 1989 as an alternative to the official, government-sponsored student organizations. Asan umbrella organization for students from more than forty Beijing universities, the Autono-mous Federation of Beijing University Students played a major role in the pro-democracy

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Workers' Autonomous Federation3" were among the most prominentorganizations declared illegal.3 9

In addition, the government has launched a massive propagandacampaign to distort the realities of the massacre and its aftermath andto prevent its citizens from receiving contradictory information fromnon-government sources, both inside and outside China.40 A reportissued by the Beijing Communist Party Propaganda Department onJune 14 stated that the massacre was caused by a "certain small groupof people" who had "plotted to arrest party and state leaders andseize political power."41 The department further alleged that thegroup attacked the army on the night of June 3, killing an estimated100 soldiers and policemen and wounding thousands.4 2 Only then,said the department, did the troops, after exercising extraordinary re-straint, fire their weapons. 3

The government's account differs from Western news reportingand eyewitness accounts." While civilians killed some soldiers in selfdefense, the violence clearly was precipitated by the troops' indiscrim-inate firing as they entered the Square.45 The troops often shot atthose civilians who were unarmed and those who were fleeing theSquare."

To further entrench the alleged official account of the massacre,Chinese television reports broadcast pictures of burnt bodies ofsoldiers, and eyewitnesses in police custody retracting statements toWestern journalists about the troops' indiscriminate killing of the stu-dents. 7 Citizens were prevented from hearing the truth about the

movement. The group put forth the students' demands to the government and organized andcoordinated the student demonstrations at Tiananmen Square. Id.

38 The Beijing Workers' Autonomous Federation was established in May 1989 as part ofan effort to create workers' groups which were independent of the government-sponsored AllChina Federation of Trade Unions. The Federation representing workers in over forty Beijingindustries supported many of the students' demands. Id. at 29.

39 Id. Aside from declaring these organizations illegal, Martial Law Decree No. 10 of theBeijing People's Government, issued on June 8, 1989, requires that the organizations disbandand that their leaders surrender to authorities. See infra notes 140-56 and accompanying textfor a detailed discussion of martial law and its illegality. For the text of Martial Law DecreeNo. 10, see Appendix D, infra.

40 MASSACRE IN BEIJING, supra note 19, at Executive Summary.41 Kristof, Beijing Ousts 2 American Correspondents, N.Y. Times, June 15, 1989, at A16,

col. 1.42 Id.43 Id.44 See Eyewitness Account, Appendix B, infra.45 Kristof, supra note 41; see also Appendix B, infra.46 Kristof, supra note 41; see also Appendix B, infra.47 See Bernstein, At China's Ministry of Truth, History is Quickly Rewritten, N.Y. Times,

June 12, 1989, at Al, col. 4. In an interview conducted by ABC News in Beijing shortly after

1380 [Vol. 13:1375

1991] TIANANMEN SQUARE 1381

massacre when the government replaced uncensored media with theirofficial news organ, the New China News Agency." In addition, thegovernment jammed the Voice of America,'49 closed the World Eco-nomic Herald,5" and banned live Western television broadcasts5 anddistribution of such Western news sources as Newsweek, Time, USAToday, and the Asian Wall Street Journal.5 2 Three American report-ers were also expelled.53

II. HUMAN RIGHTS VIOLATIONS DURING THE MASSACRE AT

TIANANMEN SQUARE AND ITS AFTERMATH

A. Military Assault

Through its repression of the pro-democracy movement, the Chi-nese government has committed gross and systematic violations of in-ternational law and of the domestic law of the People's Republic ofChina. The government's indiscriminate military assault on the pro-democracy supporters violates the supporters' rights to life, liberty,and security of the person, protected under article 3 of the UniversalDeclaration of Human Rights 4 and article 6 of the International

the crackdown, Xiao Bin, a 42 year-old factory worker, stated the following about the assault:"Tanks and armored personnel carriers rolled over students, squashing them into jam, and thesoldiers shot at them and hit them with clubs. When students fainted, the troops killed them.After they died, the troops fired one more bullet into them. They also used bayonets. Theywere too cruel. I never saw such things before." Id. This interview was broadcast on Chinesenational television for two nights. A caption on the bottom of the screen during the broadcastreferred to Xiao Bin as "somebody spreading rumors about the cleanup of TiananmenSquare." Id. After Xiao Bin completed his statement, the news announcer warned the publicagainst believing the rumors and urged the public to turn Xiao Bin in to the police. On June11, 1989, the national news again showed Xiao Bin. This time in police custody and appearinghaggard and terrified, Xiao Bin retracted his statement to ABC News. He stated, "I never sawanything," and apologized for "bringing great harm to the party and the country." He alsoadmitted being a counterrevolutionary. Id. Since the broadcasts, Xiao Bin has been sentencedto ten years in jail. See Chew & Drake, China's Repression: 'Purified'Journalism, N.Y. Times,Sept. 14, 1989, at A29, col. 1.

48 WuDunn, China's Newspapers, After Crackdown by Beying, Revert to a Single Voice,N.Y. Times, June 22, 1989, at AlO, col. 1.

49 Levine, The Uncertain Future of Chinese Foreign Policy, CURRENT HIST., Sept. 1989, at261, 263.

50 Four Months in Review, CURRENT HIST., Sept. 1989, at 298, 299.51 Id. at 304.52 Chew & Drake, supra note 47.53 Alan Pessin of the Voice of America, John Pomfret of the Associated Press, and Joseph

Kahn, a freelance reporter, were all accused of violating martial law. See Kristof, ChinesePremier Says More Arrests Are Expected, N.Y. Times, June 20, 1989, at A14, col. 4; Kristof,supra note 41.

5 G.A. Res. 217A (III), supra note 2, at art. 3. Article 3 of the Universal Declarationprovides: "Everyone has the right to life, liberty and security of person."


Covenant on Civil and Political Rights." According to article 4, par-agraph 2 of the International Covenant on Civil and PoliticalRights,56 the right to life may not be derogated even in times of publicemergency threatening the life of a nation. 7 The indiscriminate anddisproportionate nature of the government's military assault violatesarticle 3 of the United Nations Code of Conduct for Law Enforce-ment Officials.5" This article permits the use of "force only whenstrictly necessary and to the extent required for the performance oftheir duty."' 59 The commentary to article 3 provides that "[tihe use offirearms is considered-an extreme measure" and should only be used"when a suspected offender offers armed resistance or otherwise jeop-ardizes the lives of others and less extreme measures are not sufficientto restrain or apprehend the suspected offender."'6

In the case of the massacre, the pro-democracy supporters wereunarmed, and except for a few isolated incidents of violence since thedemonstration began on April 15, 1989, the supporters were peacefulin their conduct 6' and in no way threatened Chinese security.62 At

55 G.A. Res. 2200, supra note 10, at art. 6. Article 6 of the International Covenant onCivil and Political Rights states: "Every human being has the inherent right to life. This rightshall be protected by law. No one shall be arbitrarily deprived of his life."

56 Id. at art. 4, para. 2.57 Id. Article 4, paragraph I of the International Covenant on Civil and Political Rights

states:In time of public emergency which threatens the life of the nation and the exist-ence of which is officially proclaimed, the States Parties to the Present covenantmay take measures derogating from their obligations under the present Covenantto the extent strictly required by the exigencies of the situation, provided that suchmeasures are not inconsistent with their other obligations under international lawand do not involve discrimination solely on the ground of race, colour, sex, lan-guage, religion or social origin.

Article 4, paragraph 2 provides, however, that "no derogation from article 6 ... may bemade under this provision." For article 6, see supra note 55.

58 G.A. Res. 169, supra note 12, at art. 3.

59 Id.60 Id.61 MASSACRE IN BEIJING, supra note 19, at 19.62 Article 54 of the Constitution of the People's Republic of China prohibits "acts detri-

mental to the security, honour and interests of the motherland." ZHONGHUA RENMINGONGHEGUO XIANFA, supra note 5, at art. 54, reprinted in LAWS OF CHINA, supra note 5, at15. When justifying the necessity of force used to quell the pro-democracy movement, govern-ment officials repeatedly invoke this constitutional principle by arguing that the security,honor, and interests of the motherland were threatened by a counterrevolutionary rebellionintent on overthrowing the leadership of the Chinese Communist Party and the socialist sys-tem. See CHEN XITONG, REPORT ON CHECKING THE TURMOIL AND QUELLING THE

COUNTER-REVOLUTIONARY REBELLION (1989). Assuming, arguendo, that the Chinese offi-cials are correct in their perception of the goals of the pro-democracy movement, article 4,paragraph 2 of the International Covenant on Civil and Political Rights prevents the govern-ment from taking the lives of their citizens even in times of public emergency. See supra notes56-57 and accompanying text. For a further discussion of the Chinese government's argument


the time the massacre began, the number of students in the Squarehad dwindled to a mere few thousand.6" Rather than surrounding thecity with 150,000 troops and indiscriminately firing machine guns,tanks, and dum-dum bullets" to disperse a crowd of a few thousand,the government could have used such crowd control methods as teargas and water cannons. Such methods would have posed no seriousharm to the demonstrators and would have accomplished the govern-ment's purpose of clearing Tiananmen Square and the surroundingareas.

B. Arbitrary Arrest and Incommunicado Detention

The government's arbitrary arrest and incommunicado detentionof the supporters violates the supporters' rights to be free from arbi-trary arrest, detention, and exile under article 9 of the Universal Dec-laration of Human Rights65 and article 9 of the InternationalCovenant on Civil and Political Rights.66 The government's failure to

that the threats to national security posed by the pro-democracy movement necessitated theuse of force, see infra notes 157-71 and accompanying text.

63 See Appendix A, infra.64 MASSACRE IN BEIJING, supra note 19, at 20. The use of dum-dum bullets violates the

Geneva Convention of which China is a member. Where Do We Go From Here?, supra note25, at 206 (statement of Ye Ning, Director, China Communist Party Resignation CoordinatingCommittee). Article 35 of Protocol Additional to the Geneva Conventions of August 12, 1949and relating to the protection of victims of international armed conflicts (Protocol I) states asfollows:

Article 35-Basic rules1. In any armed conflict, the right of the Parties to the conflict to choose methodsor means of warfare is not unlimited.2. It is prohibited to employ weapons, projectiles and material and methods ofwarfare of nature to cause superfluous injury or unnecessary suffering.

U.N. Doc. A/32/144 (1977), reprinted in 16 INT'L LEGAL MATERIALS 1391 (1977). Insofaras dum-dum bullets explode upon impact, it is clear that such weapons violate the Conven-tion's prohibition against methods of warfare which cause "superfluous injury." See MASSA-CRE IN BEIJING, supra note 19, at 20.

65 G.A. Res. 217A (III), supra note 2, at art. 9. Article 9 of the Universal Declaration ofHuman Rights states: "No one shall be subjected to arbitrary arrest, detention or exile."

66 G.A. Res. 2200, supra note 10. Article 9 of the International Covenant on Civil and

Political Rights reads as follows:1. Everyone has the right to liberty and security of person. No one shall be

subjected to arbitrary arrest or detention. No one shall be deprived of his libertyexcept on such grounds and in accordance with such procedure as are establishedby law.

2. Anyone who is arrested shall be informed, at the time of arrest, of thereasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be broughtpromptly before a judge or other officer authorized by law to exercise judicialpower and shall be entitled to trial within a reasonable time or to release ....

4. Anyone who is deprived of his liberty by arrest or detention shall be enti-tled to take proceedings before a court, in order that that court may decide without


bring charges against the detainees violates the detainees' rights underarticle 9 of the International Covenant on Civil and Political Rights67

to be informed of the charges brought against them at the time ofarrest and to be brought to trial within a reasonable time from thearrest.

Such arrest and incommunicado detention also violates the Con-stitution6" and the Criminal Procedure Law69 of the People's Repub-lic of China. Article 37 of the Constitution prohibits "[u]nlawfuldetention or deprivation or restriction of citizens freedom of the per-son" 70 while articles 31 to 52 of the Criminal Procedure Law7' detaila series of procedures to be used in the handling of suspects, includinguse of arrest warrants, 72 notification of arrest and detention," andtime limits for detention during investigation. 74 The government'sfailure to notify families of the detention of a relative or the place ofdetention for weeks or months after the detention occurred 75 violatesarticle 50 of the Criminal Procedure Law,76 which provides for notifi-

delay on the lawfulness of his detention and order his release if the detention is notlawful.

67 Id.68 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, reprinted in LAWS OF

CHINA, supra note 5, at 1-32.69 ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA, supra note 7, reprinted in

LAWS OF CHINA, supra note 5, at 120-49.70 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 37, reprinted in LAWS

OF CHINA, supra note 5, at 12. Article 37 states: "[The f]reedom of the person of citizens ofthe People's Republic of China is inviolable .... Unlawful detention or deprivation or restric-tion of citizens freedom of the person by other means is prohibited, and unlawful search of theperson of citizens is prohibited."

71 ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA, supra note 7, at arts. 31-52,reprinted in LAWS OF CHINA, supra note 5, at 126-29.

72 Id. at art. 50, reprinted in LAWS OF CHINA, supra note 5, at 129. Article 50 of theCriminal Procedure Law provides in part:

When making an arrest, a public security organ must produce an arrest war-rant.

Within 24 hours after an arrest, the family of the arrested person or the unitto which he belongs shall be notified of the reasons for arrest and the place ofdetention, except in circumstances where such notification would hinder the inves-tigation or there is no way of notifying them.

73 Id.74 Id. at art. 51, reprinted in LAWS OF CHINA, supra note 5, at 129. Article 51 reads as

follows:Interrogation must be conducted within 24 hours after the arrest, by a peo-

ple's court or people's procuratorate with respect to a person it has decided toarrest, and by a public security organ with respect to a person it has arrested withthe approval of the people's procuratorate. If it is found that the person shouldnot have been arrested, he must be immediately released and issued a releasecertificate.

75 THE REPRESSION CONTINUES, supra note 26, at 5.76 See supra note 72.

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cation of, and the reasons for, detention within twenty-four hours ofits occurrence.

Although in many cases the exact criminal charge against detain-ees has not been published, the majority of detainees have beencharged with either committing crimes of "counterrevolution" or"crimes of seriously endangering public security."" The sentencesimposed in these cases generally range from ten years to life imprison-ment.7" Such extended prison terms are disproportionate to the termsset forth in articles 9879 and 10280 of the Criminal Law which fix themaximum prison term for a mere participant in a counterrevolution-ary rebellion to "not more than five years," while fixing the penaltyfor organizers or leaders of a counterrevolutionary rebellion to "notless than five years." In one example, three men charged with throw-ing ink and paint-filled eggshells at Mao Zedong's portrait inTiananmen Square received prison terms ranging from sixteen yearsto life." i

Article 98 of the Criminal Law of China 2 defines "counterrevo-lutionary" crimes, in part, as those crimes "organizing or leading acounterrevolutionary" group, while article 10283 defines these crimesas those activities "inciting the masses" and "propagandizing for...the overthrow of the political power of the dictatorship of the proleta-

77 MASSACRE IN BEUING, supra note 19, at 28, 31.78 See ASIA WATCH COMMITTEE, PUNISHMENT SEASON: HUMAN RIGHTS IN CHINA AF-

TER MARTIAL LAW 9 (1990).79 ZHONGHUA RENMIN GONGHEGUO XINGFA, supra note 6, at art. 98, reprinted in LAWS

OF CHINA, supra note 5, at 104. Article 98 of the Criminal Law provides that:Whoever organizes or leads a counterrevolutionary group shall be sentenced

to fixed-term imprisonment of not less than five years; others who actively partici-pate in a counterrevolutionary group shall be sentenced to fixed-term imprison-ment of not more than five years, criminal detention, public surveillance ordeprivation of political rights.

80 Id. at art. 102, reprinted in LAWS OF CHINA, supra note 5, at 105. Article 102 of theCriminal Law provides as follows:

Whoever, for the purpose of counterrevolution, commits any of the followingacts shall be sentenced to fixed-term imprisonment of not more than five years,criminal detention, public surveillance or deprivation of political rights, and ring-leaders or others whose crimes are very serious shall be sentenced to fixed-termimprisonment of not less than five years:

(1) inciting the masses to resist or sabotage the implementation of the state'slaws or decrees; or

(2) propagandizing for and inciting the overthrow of the political power ofthe dictatorship of the proletariat and the socialist system, throughcounterrevolutionary slogans, leaflets or by other means.

81 See ASIA WATCH COMMITTEE, supra note 78.82 See supra note 79.83 See supra note 80.

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riat. ' 84 The vagueness of these terms prevents citizens from regulat-ing their conduct within the confines of the law and permits asubjective interpretation of an individual's behavior rather than an ob-jective assessment of the facts. The government can easily manipulatea political opinion into a crime of counterrevolution. Thus, to be legalunder international law, these provisions regarding "counterrevolu-tion" must be precise in their wording to enable proper interpretationand following. 85

Article 90 of the Criminal Law86 limits crimes of "counterrevolu-tion" to those acts "committed with the aim of overthrowing thepolitical power of the dictatorship of the proletariat and the socialistsystem" and which endanger "the People's Republic of China. '87 Ina speech before military commanders, former Chairman of the Cen-tral Military Commission and China's paramount leader, DengXiaoping, accused the demonstrators of aiming to overthrow the Chi-nese state and the Chinese Communist party. 88 This is not so. Thestudents' demands included: freedom of speech and press, removal ofrestrictions on peaceful demonstrations, public disclosure of the fi-nances of senior officials, and an end to corruption in government.89

Nowhere did the students call for the overthrow of the government orthe Communist party.9°

The government's arrest of demonstrators calling for free speechand press, rights guaranteed in the Constitution, 9' on charges of at-tempts to overthrow the government, constitutes a gross violation ofinternational law and amounts to tyranny. Article 11 of the UniversalDeclaration of Human Rights92 states: "No one shall be held guilty ofany penal offense on account of any act or omission which did notconstitute a penal offense, under national or international law, at thetime when it was committed." 93

84 MASSACRE IN BEIJING, supra note 19, at 32.85 Id. at 31.86 ZHONGHUA RENMIN GONGHEGUO XINGFA, supra note 6, at art. 90, reprinted in LAWS

OF CHINA, supra note 5, at 103.87 Id.88 Deng's June 9 Speech: 'We Faced a Rebellious Clique' and 'Dregs of Society', N.Y.

Times, June 30, 1989, at A6, col. 1.89 See Appendix A, infra.90 Feinerman, Human Rights in China, CURRENT HIST., Sept. 1989, at 273, 293.91 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 35, reprinted in LAWS

OF CHINA, supra note 5, at 12.92 G.A. Res. 217A (III), supra note 2, at art. 11.93 Id.

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C. Expedited Proceedings

The government's special, expedited proceedings of the accused94

violate the accused's rights under article 14 of the International Cove-nant on Civil and Political Rights "to have adequate time and facili-ties for the preparation of his own defence and to communicate withcounsel of his own choosing." 95 In those cases where a pro-democ-racy supporter was accused of committing a capital crime, his attor-ney was given less than a week to prepare a defense, and only threedays to prepare an appeal.96 With the complexity of these cases andthe difficulty in finding witnesses and evidence, the expedited proceed-ings in the Chinese criminal system make a mockery of the right to adefense enshrined in Article 125 of the Constitution.97

Even with a protracted opportunity to prepare an adequate de-fense, the chance of acquittal for most pro-democracy defendantswould not increase. According to the Chinese press, the ChineseCommunist party explicitly requires that any defense lawyer whowants to plead "not guilty" on behalf of his client must obtain theparty's permission before making the plea.9 Conscientious defenselawyers are encouraged to argue for leniency. 99 Where a defense at-torney insists on the innocence of his client, the lawyer is often jailed,punished, or maltreated.eo

In a telegram of support addressed to "Comrade Qiao Shi and

94 THE REPRESSION CONTINUES, supra note 26, at 5. Under Chinese law there are twoprocedures which can be used to place pro-democracy supporters on trial: (1) the procedureprovided in the Criminal Procedure Law applying generally to criminal trials, including trialsfor counterrevolutionary crimes; and (2) the expedited procedure, adopted in 1983, and pro-viding for a hastened trial of those accused of crimes involving "serious endangerment to pub-lic security." Under article 131 of the Criminal Procedure Law, the time limit for an appeal ora protest against a judgment is ten days, whereas the time limit for an appeal under the expe-dited proceedings is only three days. See Note by the Secretary-General, supra note 21, at 29.

95 G.A. Res. 2200, supra note 10, at art. 14.96 MASSACRE IN BEIJING, supra note 19, at 38. See also Kristof, supra note 33, and text

accompanying notes 33-34. According to article 110 of the Criminal Procedure Law, nortnalprocedures provide that a defendant receive a copy of the charges against him no more thanseven days before trial. At that time, the defendant can appoint an attorney or have oneappointed for him. ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA, supra note 7, atart. 110, reprinted in LAWS OF CHINA, supra note 5, at 139-40. Under the expedited proce-dures, even this minimal seven day period between indictment and trial need not be observed.See Note by the Secretary-General, supra note 21, at 29.

97 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 125, reprinted inLAWS OF CHINA, supra note 5, at 30. Article 125 states as follows: "Except in special circum-stances as specified by law, all cases in the people's courts are heard in public. The accused hasthe right to defence."

98 Note by the Secretary-General, supra note 21, at 16.

99 Id,100 Id.

1991] 1387


the Standing Committee of the Political Bureau of the Party Centre"on June 4, 1989, the Supreme Court of the People's Republic of Chinaendorsed the counterrevolutionary character of the pro-democracydemonstrations, thereby foreclosing any possibility of contesting thisallegation in criminal proceedings in the lower courts. 10 1 In anothercircular released on June 21, 1989, the Supreme Court encouragedjudges to study the government's version of the events surroundingthe pro-democracy movement and urged the judges to punish the or-ganizers of the counterrevolutionary propaganda "without leni-ency."' 1 2 These actions directly contravene the organizer's rights to afair and public hearing by an independent tribunal and the presump-tion of innocence until proven guilty enshrined in the Universal Dec-laration of Human Rights,103 the Covenant on Civil and PoliticalRights, °4 and the Basic Principles of the Judiciary."'

In direct violation of article 2 of the Basic Principles of the Judi-ciary,1o6 the Communist party committees in the courts are instructedto "review and approve" significant cases and to determine the verdictand sentence before trial. 107 With instructions like these, and the

101 Dicks, The Chinese Legal System: Reforms in the Balance, 119 CHINA QUARTERLY

540, 573 (1989).102 International Human Rights Law Group, Law Group Joint Intervention Regarding

China, 6 L. GROUP DOCKET 6, 7 (Winter 1989-1990).103 G.A. Res. 217A (III), supra note 2, at art. 10, 11. Article 10 of the Universal Declara-

tion of Human Rights provides as follows: "Everyone is entitled in full equality to a fair andpublic hearing by an independent and impartial tribunal, in the determination of his rights andobligations and of any criminal charge against him." Article 11 provides: "I. Everyonecharged with a penal offence has the right to be presumed innocent until proved guilty accord-ing to law in a public trial at which he has had all the guarantees necessary for his defence."

104 G.A. Res. 2200, supra note 10, at art. 14. Article 14 of the International Covenant on

Civil and Political Rights states:1. All persons shall be equal before the courts and tribunals. In the determi-

nation of any criminal charge against him, or of his rights and obligations in a suitat law, everyone shall be entitled to a fair and public hearing by a competent,independent and impartial tribunal established by law ....

2. Everyone charged with a criminal offence shall have the right to be pre-sumed innocent until proved guilty according to law.

105 See supra note 13. Article 1 of the Basic Principles on the Independence of the Judiciary

provides as follows: "The independence of the judiciary shall be guaranteed by the State andenshrined in the Constitution or the law of the country. It is the duty of all governmental andother institutions to respect and observe the independence of the judiciary." Seventh UnitedNations Congress, supra note 13, at Ch. I, § D.2. Article 6 states: "The principle of the inde-pendence of the judiciary entitles and requires the judiciary to ensure that judicial proceedingsare conducted fairly and that the rights of the party are respected." Id.

106 Id. Article 2 states: "The judiciary shall decide matters before them impartially, on the

basis of facts and in accordance with the law, without any restrictions, improper influences,inducements, pressures, threats or interferences, direct or indirect, from any quarter or for anyreason."

107 Note by the Secretary-General, supra note 21, at 15.

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government's practice of publishing wanted lists identifying demon-strators as guilty prior to arrest or trial, °8 it is clear that the demon-strators' rights to a presumption of innocence and a judgmentrendered on the clear weight of the evidence go unprotected in theChinese legal system.

D. Public Denunciation and Torture

The government's public denunciation and torture of the sup-porters, specifically, its beating of the accused and its handcuffing totrees of those in custody,"° violate the supporters' rights to be freefrom torture and other forms of cruel, inhuman, or degrading treat-ment and punishment."' These rights are enshrined in article 5 of theUniversal Declaration of Human Rights,'' article 7 of the Interna-tional Covenant on Civil and Political Rights," 2 and the Preamble ofthe Convention Against Torture and Other Cruel, Inhuman, or De-grading Treatment or Punishment." 3

Insofar as article 32 of the Criminal Procedure Law prohibitsofficials from extorting confessions by torture,' the Chinese legalsystem, in theory, coincides with the international prohibitionsagainst torture. However, this theory is not reality.

Since the crackdown, law enforcement officials have repeatedlyabused detainees through physical beatings and other forms of torture

1o8 Feinerman, supra note 90, at 275.109 See supra note 31 and accompanying text. See also Appendix C, infra.I1O See infra notes 111-13.''' G.A. Res. 217A (III), supra note 2, at art. 5. Article 5 of the Universal Declaration of

Human Rights states: "No one shall be subjected to torture or to cruel, inhuman or degradingtreatment or punishment."

112 G.A. Res. 2200, supra note 10, at art. 7. Article 7 of the International Covenant onCivil and Political Rights provides: "No one shall be subjected to torture or to cruel, inhumanor degrading treatment or punishment .... "

113 G.A. Res. 46, supra note 11, at art. 1. Article 1 of the Convention Against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment defines torture as

any act by which severe pain or suffering, whether physical or mental, is intention-ally inflicted on a person for such purposes as obtaining from him or a third personinformation or a confession, punishing him for an act he or a third person hascommitted or is suspected of having committed, or intimidating or coercing him ora third person.., when such pain or suffering is inflicted by or at the instigation ofor with the consent or acquiescence of a public official or other person acting in anofficial capacity ....

Although China is legally bound by the terms of this Convention, torture in China is wide-spread. AMNESTY INTERNATIONAL, supra note 11.

114 ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA, supra note 7, at art. 32, re-printed in Laws of China, supra note 5, at 126. Article 32 of the Criminal Procedure Lawspecifically provides that "[i]t shall be strictly forbidden to extort confessions by torture and tocollect evidence by threat, enticement, deceit or other unlawful means."

13891991]


and cruel, inhuman, or degrading treatment." 5 Officials use thesebeatings as a means to extort confessions of crimes allegedly commit-ted by the detainees." 6 The confessions are then used as evidence insubsequent criminal proceedings against the accused. 1 7 Such prac-tices directly violate article 32 of the Criminal Procedure Law".. andthe international prohibitions against torture.' 9

E. Suppression of Democracy

The government's suppression of the pro-democracy movement,particularly its suppression of non-government information throughcensorship and propaganda, violates the citizens' rights to free opin-ion, expression, and assembly. These rights are guaranteed by articles19120 and 20121 of the Universal Declaration of Human Rights, arti-cles 19122 and 21 121 of the International Covenant on Civil and Polit-

115 See Note by the Secretary-General, supra note 21, at 27.116 Id. For example, a report from Reuters on July 24, 1989, recounted evidence from two

sources that beatings sometimes precede interrogations. The report cites the examples of astudent who was hit with an electric cattle prod and a writer who was smacked with rifle butts.

11 Id.118 ZHONGHUA RENMIN GONGHEGUO XINGSHI SUSONGFA, supra note 7, at art. 32, re-

printed in LAWS OF CHINA, supra note 5, at 126.119 Supra notes 111-13.120 G.A. Res. 217A (III), supra note 2, at art. 19. Article 19 of the Universal Declaration of

Human Rights states: "Everyone has the right to freedom of opinion and expression; this rightincludes freedom to hold opinions without interference and to seek, receive and impart infor-mation and ideas through any media and regardless of frontiers."

121 Id. at art. 20. Article 20 of the Universal Declaration of Human Rights states: "Every-one has the right to freedom of peaceful assembly and association."

122 G.A. Res. 2200, supra note 10, at art. 19. Article 19 of the International Covenant onCivil and Political Rights reads as follows:

1. Everyone shall have the right to hold opinions without interference.2, Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of all kinds,regardless of frontiers, either orally, in writing or in print, in the form of art, orthrough any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carrieswith it special duties and responsibilities. It may therefore be subject to certainrestrictions, but those shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;(b) For the protection of national security or of public order .... or of public

health or morals.123 Id. at art. 21. Article 21 of the International Covenant on Civil and Political Rights

states:The right of peaceful assembly shall be recognized. No restrictions may be placedon the exercise of this right other than those imposed in conformity with the lawand which are necessary in a democratic society in the interests of national securityor public safety, public order .... the protection of public health or morals, or theprotection of the rights and freedoms of others.

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ical Rights, and article 35 of China's Constitution1 24 which alsosecures freedom of press, association, procession, and demonstration.

For example, the government's jamming of the Voice ofAmerica, its closing of the World Economic Herald, and its banningof such live television and news sources as Newsweek, Time, USA To-day, and the Asian Wall Street Journal 125 directly violates the citi-zens' rights to freedom of speech and press. The government'sideological campaign against Western thought since the crackdown,through new requirements of military training for students before col-lege and grass roots employment after college, 126 violates the students'rights to free opinion under the Universal Declaration of HumanRights 2 and the International Covenant on Civil and PoliticalRights.

128

With these restrictions, the government apparently aims to con-trol thought and the free flow of information to conceal the truthabout the massacre. The government further entrenched this controlon January 18, 1990, when Prime Minister Li Peng signed new re-strictions on foreign journalists and banned articles which, in the gov-ernment's view, "distort facts" or "violate the public interest.' 1 29

The government's suppression of the demonstrations atTiananmen Square not only violates the citizens' rights to free assem-bly and demonstration, but also violates the citizens' rights under arti-cle 41 of the Constitution to criticize their government and offersuggestions.1 30 The Law Governing Parades and DemonstrationRights, 3 ' promulgated on October 31, 1989,132 further restricts the

124 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 35, reprinted in LAWSOF CHINA, supra note 5, at 12. Article 35 of the Constitution provides: "Citizens of thePeople's Republic of China enjoy freedom of speech, of the press, of assembly, of association,of procession and of demonstration."

125 See supra notes 49-52 and accompanying text.126 WuDunn, China's Campus Life: A Torrent of Self-Criticism, N.Y. Times, Oct. 20, 1989,

at A4, col. 1.127 See supra note 120.128 See supra note 122.129 Kristof, China Imposes Tighter Curbs on Foreign Reporters, N.Y. Times, January 21,

1990, at 5, col. 1. As of January 21, 1990, reporters must obtain permission for any reportingtrips outside of Beijing and may only report on authorized topics. Reporters may also beexpelled from China on the vague ground that their articles "harmed the public interest." Id.

130 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 41, reprinted in LAWS

OF CHINA, supra note 5, at 13. Article 41 of the Constitution provides: "Citizens of thePeople's Republic of China have the right to criticize and make suggestions to any state organor functionary."

131 See Draft Law Stipulates Right to Demonstrate, China Daily, July 4, 1989, at 1, col. 1.See also infra note 132.

132 See Forum Discusses Law on Demonstration Rights, reprinted in Foreign Broadcast In-formation Service, China Daily Report (November 28, 1989) at 14 (FBIS-CHI-89-228).

1991] 1391

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citizens' constitutional right to demonstrate. 133 In particular, or-ganizers of rallies, parades, and demonstrations now need permissionfrom the public security departments to demonstrate, and are re-quired to provide their purpose, posters, slogans, number of partici-pants, hours, place of demonstration, and names and addresses of theorganizers. 134 In addition, no protesters are permitted to flaunt theprinciples of China's Constitution or challenge the leadership of theChinese Communist party. 35

The government's repeated claims that its legitimate needs of so-cial stability, order, and public security justified its crackdown on thepro-democracy demonstration' 36 are meritless under internationallaw. According to article 21 of the International Covenant on Civiland Political Rights,137 limitations on the rights of freedom of associa-tion and expression in the interests of public safety, order, and na-tional security are only permitted under international law if they arenecessary in a democratic society. 138 Although China's Constitutiontheoretically safeguards many democratic elements, its society is notdemocratic, but totalitarian. The government accepts no challengesor limits on its authority, and the decision-making process rests in thehands of a few in the name of centralism. 39

133 Draft Law Stipulates Right to Demonstrate, supra note 131. Article 35 of the Constitu-

tion of the People's Republic of China states: "Citizens of the People's Republic of Chinaenjoy freedom of speech, of the press, of assembly, of association, of procession and of demon-stration." ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 35, reprinted inLAWS OF CHINA, supra note 5, at 12.

134 Draft Law Stipulates Right to Demonstrate, supra note 131.135 Id.136 See Note by the Secretary-General, supra note 21, at 30. See also Wei, Why Impose

Martial Law in Beiing?, in THE JUNE TURBULENCE IN BEIJING 21 (1989).137 G.A. Res. 2200, supra note 10, at art. 21. For a complete text of the article, see supra

note 123.138 Id. See also Note by the Secretary-General, supra note 21, at 32.139 Copper, Defining Human Rights in the People's Republic of China, in HUMAN RIGHTS

IN THE PEOPLE'S REPUBLIC OF CHINA 9, 12 (1988) [hereinafter Copper, Defining HumanRights]. Law in the People's Republic of China is specifically designed to serve the interests ofthe 'revolutionary working classes'. However, because the Chinese Communist party is solelyresponsible for articulating and protecting working class interests, the working class interestsare really the interests of the party. Gregor, Counterrevolutionaries, in HUMAN RIGHTS INTHE PEOPLE'S REPUBLIC OF CHINA 121 (1988). The preamble of the Constitution of thePeople's Republic of China attributes China's success to the "leadership of the CommunistParty of China and the guidance of Marxism-Leninism and Mao-Zedong Thought."ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at Preamble, reprinted in LAWS OFCHINA, supra note 5, at 3-4. "In effect, the interests of the people and the leadership of theCommunist party are so intimately identified by Chinese Marxist-Leninists that the constitu-tion of the People's Republic of China serves as a charter for the ideological control of thenation's entire population." Gregor, supra. Constitutional freedoms therefore can never beused to oppose communism. J. COPPER, F. MICHAEL, & Y. Wu, HUMAN RIGHTS IN POST-MAO CHINA 77 (1985).

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III. CHINA'S JUSTIFICATIONS FOR THE MASSACRE AND ITS

REPRESSIVE AFTERMATH

A. Imposition of Martial Law

According to Chinese officials, the military crackdown on thepro-democracy movement at Tiananmen Square was a legitimate ex-ercise of martial law. 140 The pro-democracy supporters repeatedly vi-olated martial law orders since they were issued in Beijing on May 20,1989.141 To "check the unrest, restore social stability in the city, andto safeguard the life and property of the citizens," the governmentcalled on military "troops to assist the armed police, public securitypersonnel and the broad masses."'' 42 Had the government not doneso,

the fruits of revolution earned by several generations through pro-tracted struggle, the achievements made in the four decades of so-cialist construction and in the decadelong reform and opening tothe outside world would have been destroyed, our country wouldhave been split up, and hundreds of millions of people would haveagain fallen into the abyss of misery.' 43

Under martial law, citizens' rights are restricted. Whereas innormal times citizens enjoy the rights afforded in the Constitution,under martial law, these constitutional rights are derogated and re-placed with martial law decrees promulgated by the government.'"For example, Martial Law Decree No. 1, issued on May 20, 1989,forbids "protests, petitions, student and worker strikes, and othermass activities which jeopardize the normal order .... Attacks onParty, government and military leaders and organs are [also] strictlyforbidden.""'' If any of the martial law decrees are violated, "thepublic security forces, the armed security forces, and the People's Lib-eration Army have the power to adopt any method necessary to dealfirmly with the situation."' 146 Thus, according to Chinese government

140 Chinese commentators define martial law as "the emergency measures carried out by the

armed forces of a country when the security of that country or parts of that country isthreatened from a macroviewpoint by factors such as war, turmoil, or natural disaster." Arti-cle Discusses Martial Law Theory, reprinted in Foreign Broadcast Information Service, ChinaDaily Report (September 28, 1989) at 39 (FBIS-CHI-89-187).

141 See MASSACRE AT BEIJING, supra note 19, at 2.142 Wei, supra note 136.'43 Excerpts from Speech Ending Martial Law, N.Y. Times, Jan. 11, 1990, at 10, col. 1. The

speech was made in Beijing on January 10, 1990 by Prime Minister Li Peng.144 See supra note 140.145 MASSACRE IN BEIJING, supra note 19, at Appendix C. For the full text of various mar-

tial law decrees instituted in Beijing from May 20 through June 12, 1989, see Appendix D,infra.

146 Id. at Martial Law Decree No. 1.

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officials, the suppression of the pro-democracy demonstration inTiananmen Square, therefore, was a legal response to a violation ofMartial Law Decree No. 1, among others. The suppression of domes-tic and foreign journalism both before and after the crackdown onJune 3 and 4, was a legal response to violations of Martial Law De-cree No. 3, which forbade inflammatory news coverage and news-gathering activities without the permission of the Beijing People'sMunicipal Government. 147

Although martial law may be legally imposed in China under theConstitution, martial law, in this instance, was illegal insofar as thecorrect procedures for implementing martial law were not followed.According to article 89, paragraph 16 of the Constitution, it is thefunction of the State Council "to decide on the imposition of martiallaw in parts of provinces, autonomous regions, and municipalities di-rectly under the Central Government." 148 Article 67, paragraph 20states that it is the function of the Standing Committee of the Na-tional People's Congress "to decide on the imposition of martial lawthroughout the country or in particular provinces, autonomous re-gions, or municipalities directly under the Central Government. "149

Article 80150 requires the President of the People's Republic of Chinato proclaim martial law.'51

Insofar as Li Peng, head of the State Council, signed an orderimposing martial law in China, martial law was legal. 5 2 However, itis unclear whether Yang Shangkun, President of the People's Repub-lic of China, ever formally proclaimed the imposition of martial lawin accordance with article 80 of the Constitution.'53 Furthermore,there are no reports of any decision by the National People's Congressto impose martial law. 154 Since the Congress was not even in sessionwhen martial law was imposed, it is highly unlikely they ever madesuch a decision.'55 Without the Congressional order and the Presi-dent's proclamation, the declaration of martial law on May 20, 1989,

147 Id. at Martial Law Decree No. 3.148 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 89, para. 16, reprinted

in LAWS OF CHINA, supra note 5, at 24. Beijing is one such province. See 135 CONG. REC.S6411 (daily ed. June 8, 1989) (statement of Tao-tai Hsia) [hereinafter Hsia's Statement].

149 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 67, para. 20, reprinted

in LAWS OF CHINA, supra note 5, at 19. See also Hsia's Statement, supra note 148.150 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 80, reprinted in LAWS

OF CHINA, supra note 5, at 21.I.1 See Hsia's Statement, supra note 148.152 See infra, Appendix D, at Martial Law Decree No. 1.153 Hsia's Statement, supra note 148.154 Id.155 Id.

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was illegal under the Constitution.'56

B. Illegal Counterrevolutionary Rebellion

Although article 35 of the Constitution provides Chinese citizenswith freedom of speech, press, assembly, association, procession, anddemonstration,'57 these rights are not absolute. When exercising theirrights under the Constitution, Chinese citizens have a duty "not toinfringe upon the interests of the state, of society and of the collective,or upon the lawful freedoms and rights of other citizens."'5 8 In addi-tion, Chinese citizens have a duty "to safeguard the security, honourand interests of the motherland," and may "not commit acts detri-mental to the security, honour and interests of the motherland."' '5 9

Although not clearly stated in the Constitution, the exercise ofconstitutional freedoms must conform to the confines of the commu-nist system. 16

0 This means submission to Deng's Four Cardinal Prin-ciples:' 6' upholding the leadership of the Chinese Communist party,adhering to the Socialist Road, upholding the Dictatorship of the Pro-letariat, and adhering to Marxism-Leninism and the Thought of MaoZedong. 162

In an attempt to justify its military crackdown on the pro-democ-racy movement, the Chinese government repeatedly portrays thedemonstration as a counterrevolutionary rebellion whose goal was to"overthrow the Communist Party, topple the socialist system andsubvert the People's Republic of China."'' 63 Such goals contradictDeng's Four Cardinal Principles and are expressly prohibited by arti-cles 90 through 104 of the Criminal Law which refer to "Crimes ofCounterrevolution." 164

Insofar as the goals or actions of the pro-democracy movementwere a legitimate threat to the national security of China, the govern-ment may have been justified in its effort to quash the movement. 65

156 Id.157 ZHONGHUA RENMIN GONGHEGUO XIANFA, supra note 5, at art. 35, reprinted in LAWS

OF CHINA, supra note 5, at 12. For the complete text of article 35, see supra note 133.158 Id. at art. 51, reprinted in LAWS OF CHINA, supra note 5, at 14.159 Id. at art. 54, reprinted in LAWS OF CHINA, supra note 5, at 14.160 See supra note 139 and accompanying text.161 See Copper, Defining Human Rights, supra note 139.162 Id.163 See Deng Xiaoping on the Beijing Counter-Revolutionary Rebellion, in THE JUNE TUR-

BULENCE IN BEIJING 1 (1989).164 ZHONGHUA RENMIN GONGHEGUO XINGFA, supra note 6, at art. 90-104, reprinted in

LAWS OF CHINA, supra note 5, at 103-05. See also supra notes 77-90 and accompanying text.165 Article 54 of the Constitution of the People's Republic of China prohibits "acts detri-

mental to the security, honour and interests of the motherland." ZHONGUA RENMIN

1991] 1395


However, at no time did the supporters call for the "overthrow [of]the Communist Party" 166 or the "toppl[ing of] the socialist sys-tem." ' 67 The pro-democracy leaders considered their movement to bepatriotic from the start.' 6' During the demonstrations, they chanted"long live communism" and "support the correct leadership of theParty."' 69 The Internationale and the national anthem were sung. 170

The only threat the pro-democracy movement posed was a challengeto the legitimacy and practices of the current leaders, not a challengeto the "security, honour and interests of the motherland.''

IV. REQUIRED SANCTIONS BY THE UNITED STATES

A. Legitimdcy of Sanctions under International Law

Repeated claims by the Chinese government that its suppressionof the pro-democracy movement is an "internal affair,"172 an actionnot to be interfered 173 with by the United States or any other "foreigncountries, organizations and personages that maintain friendly rela-tions with China,"'' 74 are unacceptable within the context of presentinternational law and China's own actions in the international arena.As a member of the United Nations, 175 China assumes an obligation

GONGHEGUO XIANFA, supra note 5, at art. 54, reprinted in LAWS OF CHINA, supra note 5, at15.

166 See supra note 163.167 Id. For a list of the supporters' demands, see text accompanying note 89, supra.168 Where Lies the Truth?, 15 CHINA TALK 3 (January 1990).169 Id.170 Id.171 See supra note 159 and accompanying text.172 China Urges US Not to Harm Relations, China Daily, June 8, 1989, at 1, col. 1. Accord-

ing to a Chinese commentator, the term "internal affairs" means "the affairs within the juris-diction of a country." These are affairs which can be freely handled by the countriesconcerned and which are not restricted by the obligations of international law. See ArticleCondemns US. Interference, reprinted in Foreign Broadcast Information Service, China DailyReport (December 12, 1989) at 2 (FBIS-CHI-89-237).

173 Chinese commentators define "interference" as "an act by a country, several countriesor international organizations which, directly or indirectly, meddles in the internal and exter-nal affairs of another country or disputes between countries." Id. at 3.

174 China Urges US Not to Harm Relations, supra note 172. To substantiate this argument,Chinese commentators invoke article 2, paragraph 7 of the United Nations Charter whichprovides as follows: "Nothing contained in the present Charter shall authorize the UnitedNations to intervene in matters which are essentially within the domestic jurisdiction of anyState .... " U.N. CHARTER art. 2, para. 7; Article Condemns U.S. Interference, supra note172. With the international nature of human rights, however, this article may not be appliedto prevent interference with the affairs of those member nations violating human rights. Seegenerally Lewis, China Draws Fire for Effort to Curb U.N. on Rights, N.Y. Times, Dec. 17,1989, at 34, col. 1. For a fuller discussion of the international nature of human rights, seeBuergenthal, infra note 176.

175 The People's Republic of China became a member of the United Nations in 1971, and as

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under articles 55 and 56 of the United Nations Charter to "take jointand separate action" to "promote universal respect for, and obser-vance of, human rights and fundamental freedoms for all ....China is not excluded from observing this law within its own borders.Rather, China's obligation under articles 55 and 56 is twofold. Chinamust promote observance and respect for fundamental human rights,both inside and outside its borders, and it must accept the legitimacyof international action in response to its poor human rights perform-ance. This includes sanctions imposed by the United States.

As a member of the United Nations, China has either signed orratified a number of international human rights treaties, 7 underwhich it accepts the legitimacy of international supervision over thetreatment of its citizens. 178 By becoming a party to these treaties,China assumed, and continues to assume, a variety of substantive ob-ligations to ensure that all of its citizens enjoy a range of basic civiland political rights, 179 most of which are contained in the Universal

such, became a signatory to the fundamental human rights principles embodied in the UnitedNations Charter. Copper, Defining Human Rights, supra note 139, it 14-15.

176 U.N. CHARTER arts. 55, 56. See also M. MC DOUGAL, H. LASSWELL & L. CHEN,

HUMAN RIGHTS AND WORLD PUBLIC ORDER 323-24 (1980); Schwelb, The Int'l Court ofJustice and the Human Rights Clauses of the Charter, 66 AM. J. INT'L L. 337, 339-40 (1972).Although these Charter provisions are vague, insofar as they do not define or list the humanrights and fundamental freedoms to be promoted, the provisions are legally significant. Theytransform human rights, "once only a matter of domestic concern, into the subject of interna-tional treaty obligations." As such, violations of human rights can no longer be considered anissue exclusively within the domestic jurisdiction of the human rights violator. Buergenthal,International Human Rights Law and Institutions: Accomplishments and Prospects, 63 WASH.L. REV. 1, 4 (1988).177 These treaties include: the International Convention on the Elimination of All Forms of

Racial Discrimination; the International Convention on the Suppression and Punishment ofthe Crime of Apartheid; the International Convention Against Apartheid in Sports; the Con-vention on the Elimination of All Forms of Discrimination Against Women; Convention onthe Crime and Punishment of the Crime of Genocide; the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment; the Convention Relating tothe Status of Refugees; and the Protocol Relating to the Status of Refugees. HUMAN RIGHTS:STATUS OF INTERNATIONAL INSTRUMENTS, U.N. Doc. ST/HR/5, U.N. Sales No.E.87.XIV.2 (1989).

178 MASSACRE IN BEIJING, supra note 19, at 46.179 These are rights to which all human beings are entitled. They include, among others,

the rights to: "life, liberty and security of person"; "freedom from torture and cruel, inhumanor degrading treatment or punishment"; "an effective judicial remedy for violations of humanrights"; "freedom from arbitrary arrest, detention or exile"; "a fair trial and public hearing byan independent and impartial tribunal"; "the presumption of innocence until guilt has beenproved"; "freedom of movement and residence, including the right to leave any country andreturn to one's country"; "asylum"; "a nationality"; "freedom of thought, conscience and reli-gion"; "freedom of opinion and expression"; "freedom of peaceful assembly and association";and "participation in the government of one's country." QUESTIONS AND ANSWERS, supranote 1, at 5-6.

CARDOZO LAW REVIEW

Declaration of Human Rights1 80 and the International Covenant onCivil and Political Rights. 8 '

As a member of the United Nations Commission on HumanRights,' 82 China has repeatedly acknowledged the international na-ture of human rights and the right of United Nations members toscrutinize the human rights violations of various countries.183 In par-ticular, China has voted in favor of resolutions to send United Na-tions investigators to examine human rights violations in SouthAfrica, Chile, and Afghanistan.' 84 China has also joined consensusresolutions affecting other countries.'8 5

Although Chinese officials may argue that the United States's im-position of sanctions against China violates article 2, paragraph 4 ofthe United Nations Charter, 8 6 the argument is weak. Article 2, para-graph 4 states that "[a]ll members shall refrain in their internationalrelations from the threat or use of force against the territorial integ-rity or political independence of any State, or in any other mannerinconsistent with the Purposes of the United Nations."' 87 The major-ity interpretation of this article defines "force" to mean "armed force"only.' 8 This interpretation never suggests that the prohibition of"force" could include the use of economic sanctions by one UnitedNations member state against another. 8 9 Insofar as the promotion ofhuman rights and fundamental freedoms is one of the four purposesof the United Nations, 190 and is also one of the purposes of the UnitedStates's sanctions against China,' 91 the United Nations may even con-

180 G.A. Res. 217A (III), supra note 2.181 G.A. Res. 2200, supra note 10. See also, MASSACRE IN BEIJING, supra note 19, at 46-

47.182 See MASSACRE IN BEIJING, supra note 19, at 47.183 Id.184 Id.185 Id.186 U.N. CHARTER art. 2, para. 4.187 Id.188 Maddox, The Comprehensive Anti-Apartheid Act: A Case Study in the Legality of Eco-

nomic Sanctions, 44 WASH. & LEE L. REV. 1415, 1423 (1987).189 Id. Under international law, a state may criticize another state for failing to adhere to

internationally recognized human rights standards. A state may also organize its trade, aid orother policies to disassociate itself from the human rights violator or to discourage humanrights violations. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED

STATES § 703 (1987).190 Maddox, supra note 188, at 1424. Article 1, paragraph 3 of the United Nations Charter

states as follows: "To achieve international co-operation in solving international problems ofan economic, social, cultural or humanitarian character, and in promoting and encouragingrespect for human rights and for fundamental freedoms for all .... U.N. CHARTER art. l,para. 3.

191 At the outset, the objective of the sanctions was to condemn Chinese leaders for order-ing the massacre of unarmed demonstrators at Tiananmen Square, and to press the leaders to

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done the sanctions.

B. Duty to Sanction under International Law

Like China, the United States is bound by international and do-mestic law to observe fundamental human rights and liberties. As amember of the United Nations, the United States assumes an obliga-tion under article 55 of the United Nations Charter to "promote uni-versal respect for, and observance of, human rights and fundamentalfreedoms for all without distinction as to race, sex, language, or reli-gion." 192 The United States also assumes an obligation under article56 of the United Nations Charter "to take joint and separate action... for the achievement of the purposes set forth in article 55. ' ' 193

Assumption of these obligations suggests a corresponding duty not tosupport another state engaged in serious violations of internationallyrecognized human rights.194 So long as China continues its flagrantviolation of internationally recognized human rights, the UnitedStates has a duty under international law to deny China economic,military, and diplomatic support.

C. Duty to Sanction under Domestic Law

1. The Foreign Assistance Act

a. Section 502B

Like international law, the domestic law of the United States alsoforbids support to those states that consistently violate human rights.Section 502B of the Foreign Assistance Act of 196119' prohibits mili-

stop the killing in the aftermath of the massacre. Van Ness, Sanctions on China, FAR E. ECON.REV., Sept. 21, 1989, at 25. Sanctions later focused on urging the government leaders to: stopthe arrests and executions of those involved in the pro-democracy movement, end the nation-wide repression that followed the massacre, and lift martial law in Beijing. Id.

192 U.N. CHARTER art. 55(c).

193 Id. at art. 56.194 Cohen, Conditioning U.S. Security Assistance on Human Rights Practices, 76 AM. J.

INT'L L. 246 (1982). The enforcement of human rights obligations under the United NationsCharter depends upon the recognition and implementation of such a duty. Id. at 246- 47.

195 Foreign Assistance Act of 1961, Pub. L. No. 93-559, § 46, 88 Stat. 1795, 1815-16 (1974)(codified at 22 U.S.C. § 2304 (1988)) (commonly referred to as section 502B). Section 502Bprovides in relevant part:

(a)(l) The United States shall, in accordance with its international obligations asset forth in the Charter of the United Nations and in keeping with the constitu-tional heritage and traditions of the United States, promote and encourage in-creased respect for human rights and fundamental freedoms throughout the worldwithout distinction as to race, sex, language, or religion. Accordingly, a principalgoal of the foreign policy of the United States shall be to promote the increasedobservance of internationally recognized human rights by all countries.(2) Except under circumstances specified in this section, no security assistance may

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tary assistance or licenses for the commercial sale of military items togovernments engaged in a consistent pattern of gross violations of in-ternationally recognized human rights. 196 In keeping with this provi-

be provided to any country the government of which engages in a consistent pat-tern of gross violations of internationally recognized human rights. Security assist-ance may not be provided to the police, domestic intelligence, or similar lawenforcement forces of a country, and licenses may not be issued under the ExportAdministration Act of 1979 . . . for the export of crime control and detectioninstruments and equipment to a country, the government of which engages in aconsistent pattern of gross violations of internationally recognized human rights

22 U.S.C. § 2304 (1988). Although President Carter never formally labelled a countiy a "vio-lator," he used this section to deny security assistance to twelve countries during his adminis-tration: Argentina, Bolivia, El Salvador, Guatemala, Haiti, Nicaragua, Paraguay, Uraguay, thePhilippines, South Korea, Iran, and Zaire. See D. FORSYTHE, HUMAN RIGHTS AND U.S.FOREIGN POLICY 53 (1988).

196 Section 502B, supra note 195. To find that a particular government "engages in a con-sistent pattern of gross violations of internationally recognized human rights," four elementsmust be satisfied: (1) there must be violations of "internationally recognized human rights";(2) the violations must be "gross"; (3) the pattern of violations must be consistent; and (4) thegovernment must be responsible for the violations. Cohen, supra note 194, at 267.

Subsection (d)(1) of section 502B contains a definition of "gross violations of internation-ally recognized human rights." According to that section, this term "includes torture or cruel,inhuman, or degrading treatment or punishment, prolonged detention without charges andtrial.... and other flagrant denial of the right to life, liberty, or the security of the person." 22U.S.C. § 2304(d)(1) (1988). The human rights violations committed during the TiananmenSquare Massacre, reviewed in Part II of this paper, are sufficient to meet the first element fordenial of security assistance to China.

The second element, referring to "gross" violations, means that the violations must besignificant in their impact. Cohen, supra note 194, at 267. For example, although arbitraryimprisonment is an internationally recognized violation, detention for several days would notbe considered "gross" due to the relatively short period of confinement. Id. However, in thecase of China, most of the detainees have been confined without charge or trial since the mas-sacre in June 1989. See ASIA WATCH COMMITTEE, supra note 78, at 8. Such prolongeddetention would be considered a "gross" violation of the internationally protected right againstarbitrary imprisonment. Thus, the second element for prohibiting foreign assistance to Chinais satisfied.

The third element of a "consistent pattern" of violations means that abuses must be signif-icant in number and recurrent. Isolated instances of torture and execution, while certainlygross violations, would not be enough to trigger prohibition of security assistance under sec-tion 502B. Cohen, supra note 194, at 268. Applying this element to China, it is clear thatsecurity assistance should be prohibited. The massacre and its repressive aftermath are part ofa consistent pattern of gross human rights violations in China. Since 1949, the Chinese gov-ernment has broken up peaceful demonstrations for Tibetan autonomy with brutal force andhas imposed stringent restrictions on the internationally recognized freedoms of religion, ex-pression and association. During the peaceful demonstrations in Tibet in March 1989 alone,the Chinese security forces killed hundreds of people. See Law Group Joint Intervention Re-garding China, supra note 102, at 6.

The fourth element, that the government be responsible for the violations, is also presentin the case of China, where the Chinese government ordered the People's Liberation Army andother security forces to suppress the pro-democracy movement. U.S. DEP'T OF STATE, HOUSECOMM. ON FOREIGN AFFAIRS & SENATE COMM. ON FOREIGN RELATIONS, 101ST CONG., 2DSESS., COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES FOR 1989 at 802 (Joint Comm.

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sion, on June 5, 1989, President Bush issued an Executive order,which among other sanctions, suspended the sales and exports toChina of all military items requiring export licenses from the Office ofMunitions Control, and also suspended high-level military exchangesbetween the United States and China. 197 The major result of thesesanctions was to postpone a $500 million deal whereby the UnitedStates was to provide China with upgraded avionics for its F-8 fighterplanes.198 Also affected was a $28 million program for modernizingproduction of large caliber artillery ammunition; a $62 million sale toChina of AN/TPQ-37 artillery-locating radars; and a $10 million ag-gregate sale of a Mark 46 surface ship and two anti-submarine torpe-does.199 Such sanctions undoubtedly impede the strength andmodernization of the Chinese military.

Despite the imposition of these sanctions on June 5, 1989, Presi-dent Bush has essentially reversed his position on military sales toChina. On July 7, 1989, the President authorized the sale to China offour commercial Boeing 757-200 jetliners containing navigation con-trol systems requiring export licenses from the Office of MunitionsControl.2°° In addition, the postponed $500 million project to up-grade China's F-8 fighter planes with United States electronics waspermitted to proceed.2 °" The President's authorization of these dealsconstitutes a flagrant violation of section 502B of the Foreign Assist-ance Act of 1961 and should be withdrawn.

Section 502B also prohibits the transfer of crime control and po-lice equipment to governments violating human rights.20 2 Although

Print 1990) [hereinafter COUNTRY REPORTS]. Given that all four of the criteria for denyingforeign assistance to China under section 502B have been met, it is clear that all militaryassistance to China should be terminated.

197 Presidential sanctions against China include: suspension of all arms sales to China; sus-

pension of exchanges between United States and Chinese military and diplomatic leaders; ex-tension of visas to Chinese nationals in the United States; humanitarian and medical assistancethrough the Red Cross for those injured in the massacre; instructions to United States repre-sentatives of international financial institutions to seek delay of loan requests that would bene-fit China; suspension of new insurance and financing in China by the Overseas PrivateInvestment Corporation; suspension of new licenses for exports of nuclear power to China; andsuspension of the license to China permitting China to use its missiles to launch United Statesmanufactured satellites. The sanctions were imposed by Executive order on June 5, 1989.H.R. 2655, 101st Cong., 1st Sess., 135 CONG. REC. 3446, 3455 (1989).

198 See Felton, Brutal Crackdown in Beijing Deals Blow to US. Ties, 47 CONG. Q. 1411,1414 (1989).

199 Id.

200 Memo from Richard Kessler, Jeff Sims & William Triplet to United States Senate Com-mittee on Foreign Relations, United States Policy Toward China 8 (February 1, 1990) (on filewith the Cardozo Law Review) [hereinafter Kessler Memo].

201 Id.202 Section 502B, supra note 195; see also supra note 195 for text of statute.

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President Bush temporarily suspended the sale and export of militaryweapons to China,2 °3 he failed to suspend licenses authorizing the saleof police equipment.20 4 He also failed to suspend some $2.9 billion inhigh-technology exports, including computers and other strategicgoods, which could be used to aid the sale of military equipment 205 inviolation of section 502B. It is especially important in this instancethat President Bush abide by the provisions of the Foreign AssistanceAct with respect to the sale of police equipment since it was policeequipment that provided the tools of repression in the military crack-down. It should be noted here that both the House and Senate intro-duced bills prohibiting licenses for the export of any crime control ordetection equipment.20 6

b. Section 239(l)

Section 239(l) of the Foreign Assistance Act of 1961 prohibitsOverseas Private Investment Corporation (OPIC) activity in thosecountries whose governments violate human rights.2 0 OPIC is a

203 See supra note 197.204 Memo from Holly Burkhalter, Washington Director, Human Rights Watch, at 2 (July

6, 1989) (discussing sanctions against China) (available from Asiawatch, Washington, D.C.)[hereinafter Burkhalter Memo].

205 Where Do We Go From Here?, supra note 25, at 124 (statement of Aryeh Neier, Execu-

tive Director, Human Rights Watch) [hereinafter Neier's Statement].206 H.R. 2655, 101st Cong., 1st Sess. (1989) and S. 1160, 101st Cong., 1st Sess. (1989). The

House-passed amendment to the fiscal 1990-1991 foreign aid authorization bill (H.R. 2655)would legalize several sanctions that President Bush imposed by Executive order. For a list ofthe President's sanctions, see supra note 197. In addition to legalizing the President's sanc-tions, the House bill would: eliminate China's eligibility for a trade promotion program run bythe Agency for International Development; expand the President's prohibition on export ofnuclear supplies to China; stop plans to increase China's access to such high-technology itemsas computers; and prohibit the export of crime control equipment. The bill was passed by theHouse on June 29, 1989. Felton, House Stiffens Sanctions on China, 47 CONG. Q. 1642 (1989).The Senate-passed amendment to the fiscal 1990 State Department authorization bill (S. 1160)essentially parallels the House amendment, although the Senate amendment requests that thePresident reconsider almost all of the United States economic ties with China. In particular,the Senate requests that the U.S. Export-Import Bank halt its subsidies of exports to China,that the President oppose all future loans by the World Bank to China, and that China's statusas a "most favored nation," which entitles China to reduced tariffs, be reconsidered. SenateApproves Sanctions Plan, 47 CONG. Q. 1800 (1989). On January 31, 1990, the Senate passedthe bill, which for technical reasons, had not been enacted after being introduced in the sum-mer of 1989. Although the bill is expected to become law without a presidential veto, the billis largely symbolic since President Bush has removed most of the sanctions imposed by Execu-tive order, and the new bill permits the President to waive others if it is in the national interest.Awanohara, China Card Shuffled, FAR E. ECON. REV., Feb. 15, 1990, at 12.

207 Foreign Assistance Act of 1961, Pub. L. No. 95-268, § 8, 92 Stat. 213, 216 (1978) (codi-fied at 22 U.S.C. § 2199(i) (1988)). Section 239(l), provides as follows:

The corporation shall take into account in the conduct of its programs in a coun-try, in consultation with the Secretary of State, all available information aboutobservance of and respect for human rights and fundamental freedoms in such

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United States government corporation which provides long-term riskinsurance to businesses investing in foreign countries.2 °s CurrentlyOPIC insures approximately ten percent of new businesses inChina.2" In 1988, OPIC insured eleven new projects in China total-ling over $46 million.210

In compliance with section 239(l), the President's Executive or-der of June 5, 1989, suspended action on applications of new insur-ance and financing by OPIC, as did the House and Senate bills.21

Without OPIC political risk insurance coverage, private investmentby American companies will decline. As the United States is the sec-ond largest investor in China,2"2 with $3 billion in assets, 213 even aminimal decrease in American investment would stifle Chinese eco-nomic and social development. To increase the negative impact onChina, the President should do more than suspend action on applica-tions for OPIC; he should suspend OPIC activity in Chinaaltogether.21 4

2. The Trade Act of 1974

Sections 402(a) and (b) of the Trade Act of 1974,215 known as the

country and the effect the operation of such programs will have on human rightsand fundamental freedoms in such country. The provisions of section 2151n ofthis title shall apply to any insurance, reinsurance, guaranty, or loan issued by theCorporation for projects in a country, except that in addition to the exception(with respect to benefitting needy people) set forth in subsection (a) of such sec-tion, the Corporation may support a project if the national security interest sorequires.

22 U.S.C. § 2199(i) (1988).208 Burkhalter Memo, supra note 204, at 4.209 Id.210 Id.211 See supra notes 197 and 206.212 Hong Kong is the largest investor in China. See Where Do We Go From Here?, supra

note 25, at 11 (statement of Ambassador Richard L. Williams, Acting Deputy Assistant Secre-tary, Bureau of East Asian and Pacific Affairs).

213 Id.214 Felton, supra note 198, at 1414.215 Trade Act of 1974, § 402(a)-(b), 19 U.S.C. § 2432 (1988). 19 U.S.C. § 2432 provides in

relevant part:(a) Actions of nonmarket economy countries making them ineligible for most-fa-vored nation treatment, programs of credits, credit guarantees, or investment guar-antees, or commercial agreements

To assure the continued dedication of the United States to fundamentalhuman rights, and notwithstanding any other provision of law, on or after January3, 1975, products from any nonmarket economy shall not be eligible to receivenondiscriminatory treatment (most-favored nation treatment), such country shallnot participate in any program of the Government of the United States whichextends credits or credit guarantees or investment guarantees, directly or indi-rectly, and the President of the United States shall not conclude any commercial

CARDOZO LAW REVIEW

Jackson-Vanik amendment, prohibits the President of the UnitedStates from designating a communist government as a Most FavoredNation (MFN) beneficiary if such government "denies its citizens theright or opportunity to emigrate. ' 216 Although China was grantedMFN beneficiary status in 1980,217 China clearly is denying its citi-zens the right to emigrate.218 On June 20, 1989, the Chinese govern-ment announced that all passports were null and void, and thosewishing to travel would need to apply for new passports at police sta-tions around the country.2" 9 This measure was designed as a dragnetto catch the pro-democracy demonstrators. 220 By denying MFN sta-tus to China, the United' States would compel China to pay the samehigh tariffs on Chinese exports to the United States that most commu-nist countries pay.221 Although President Bush renewed an annualwaiver allowing MFN status for China on May 24, 1990,222 the Jack-son-Vanik Amendment requires the President to overturn his decisionand deny China the privilege of MFN status. If the President fails tocomply with the Amendment, Congress could pass legislation requir-ing him to do so.

3. The International Financial Institutions Act

Section 701 of the International Financial Institutions Act 223 re-quires the United States directors of the multilateral developmentbanks to oppose loans and other credit to countries violating human

agreement with any such country, during the period beginning with the date onwhich the President determines that such country-

(1) denies its citizens the right or opportunity to emigrate; ....216 19 U.S.C. § 2432(a)(1) (1988). See also Neier's Statement, supra note 205.217 Other communist countries receiving MFN beneficiary status are Yugoslavia, Poland,

Romania, and Hungary. See Burkhalter Memo, supra note 204; Forsythe, supra note 195, at74-76.

218 Neier's Statement, supra note 205, at 5.219 Id. In the wake of the massacre, the Government implemented more restrictive criteria

for issuing new passports. Applicants must now obtain a political "good bill of health" fromtheir party committees and the work units to which they have been assigned. They also mustsubmit to background checks by the Public Security Bureau. Applicants are screened to deter-mine their political loyalties and the nature of their participation in the pro-democracy demon-strations. Dissident Zhang Cai was detained at the airport in Shanghai when he attempted toboard a flight out of China. See COUNTRY REPORTS, supra note 196, at 817.

220 Neier's Statement, supra note 205, at 5.221 Id.222 Barale, U.S. MFN Renewal for China: The Jackson-Vanik Amendment, 12 E. ASIAN

EXECUTIVE REP. 9 (1990). Representative Tom Lantos introduced a joint resolution to disap-prove the renewal of the waiver (see H.J. Res. 58 1), as did Representative Gerald Solomon (seeH.J. Res. 586). Senators Alan Dixon and Alfonse D'Amato introduced a joint resolution inthe Senate to deny MFN status to China for one year (see S.J. Res. 325). Id. at 12.

223 International Financial Institutions Act, § 701(a)(1), 22 U.S.C. § 262d (1988).

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rights.224 While the United States does not have enough power toveto loans or credit extensions to violating countries, United Statesopposition is extremely influential.225

In his Executive order, President Bush also instructed UnitedStates representatives of the international financial institutions to seekdelays in consideration of loan requests benefitting China.226 This re-quest, in conjunction with similar requests by the other major indus-trial countries was the likely impetus for the World Bank's freeze onseven loans to China worth a total of $780.2 million, due to be sent tothe Bank's board for approval by June 30, 1989.227 Deferral of theseloans would retard China's development in key areas. The most sig-nificant losses include: $180 million earmarked for the cost of a 600-mW coal-fired power station at Yanshi; $150 million for rehabilitationof the Nanjing-Shanghai highway and Dan-Yeng portion of theGrand Canal; and $150 million for a Shanghai industrial developmentproject designed to set up electronic components, precision and scien-tific instruments, printing machinery, and electrical apparatusfactories.22

On February 8, 1990, however, the World Bank announced ap-proval of a $30 million loan to China for earthquake relief and theExport-Import Bank, a United States agency, announced a $23.1 mil-lion loan for the Shanghai transportation system.22 9 On February 2,1990, the Export-Import Bank approved a $9.75 million loan to theChina National Offshore Oil Corporation a.23 Although these loanswere the first since the crackdown in June 1989,231 their approval con-

224 Section 701 provides in relevant part:

Sec. 701. (1) The United States Government, in connection with its voice and votein the International Bank for Reconstruction and Development, the InternationalDevelopment Association, the International Finance Corporation, . . . the AsianDevelopment Bank . . . shall advance the cause of human rights, including byseeking to channel assistance toward countries other than those whose govern-ments engage in-

(1) a pattern of gross violations of internationally recognized human rights,such as torture or cruel, inhumane, or degrading treatment or punish-ment, prolonged detention without charges, or other flagrant denial tolife, liberty, and the security of person ....

22 U.S.C. § 262d (1988).225 Neier's Statement, supra note 205. For example, the United States is the leading stock-

holder in the World Bank, a 152-nation lending institution. See Farnsworth, China Wins TwoLoans Backed by U.S., N.Y. Times, February 9, 1990, at A3, col. 4.

226 See supra note 197.227 Put on Hold, FAR E. ECON. REV., July 6, 1989, at 69.228 Id.

229 See Farnsworth, supra note 225.230 Id.

231 Id.

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stitutes a flagrant violation of section 701 of the International Finan-cial Institutions Act and should be withdrawn.

4. Agricultural Trade Development and Assistance Act of 1954

Like the other statutes linking human rights criteria to foreignassistance, section 112 of the Agricultural Trade Development andAssistance Act 232 also establishes human rights criteria for its assist-ance. In particular, section 112 prohibits any agreement that financesthe sale of agricultural commodities to a country engaged in a consis-tent pattern of gross violations of internationally recognized humanrights.23 a Although in his Executive order, President Bush did notplace sanctions upon agricultural trade, the United States's offer onDecember 5, 1990, to sell China one million metric tons of subsidizedwheat23 4 clearly violates section 112 and should be prohibited.

Insofar as section 112 permits trade between the United Statesand those human rights violators who prove, by written report, thatthe sale of agricultural products would directly benefit the needy peo-ple of that country,2 3

1 trade in the instant circumstances would violatethe Act. According to X. Z. Yuan, China's chief grain buyer in theUnited States, China's purchase of nearly a million metric tons ofwheat from Britain satisfied China's wheat needs through the firstquarter of 1990.236 This indicates that any wheat purchased from the

232 Agricultural Trade Development Assistance Act of 1954, § 112, 7 U.S.C. § 1712 (1988).233 Id. 7 U.S.C. § 1712 provides as follows:

(a) Agreements prohibited with countries violating internationally recognizedhuman rights: exception for agreements directly benefitting needy people

No agreement may be entered into under this subchapter to finance the sale ofagricultural commodities to the government of any country which engages in aconsistent pattern of gross violations of internationally recognized human rights,including torture or cruel, inhuman, or degrading treatment or punishment, pro-longed detention without charges, causing the disappearance of persons by the ab-duction and clandestine detention of those persons, or other flagrant denial of theright to life, liberty, and the security of person, unless such agreement will directlybenefit the needy people in such country. An agreement will not directly benefitthe needy people in the country for purposes of the preceding sentence unlesseither the commodities themselves or the proceeds from their sale will be used forspecific projects or programs which the President determines would directly bene-fit the needy people of that country. The agreement shall specify how the projectsor programs will be used to benefit the needy people and shall require a report tothe President on such use within 6 months after the commodities are delivered tothe recipient country.

234 U.S. Offers to Sell China Million Tons of Subsidized Wheat, N.Y. Times, Dec. 6, 1989, at

D2, col. 1. According to the terms of the offer, wheat sales will be made through United Statesexporters who can sell to China at preferential rates and be subsidized with grain from UnitedStates government stockpiles. Id.

235 7 U.S.C. § 1712(a) (1988).236 See supra note 234.

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United States during the first quarter of 1990 would have been super-fluous. The wheat would not have been required for the subsistence ofthe needy people of China.

D. Precedent for Imposing Sanctions

In addition to international and domestic law, legal precedentcompels the imposition of sanctions against China. In his book, Eco-nomic Sanctions Reconsidered, Gary Hufbauer examines 103 in-stances of sanctions since World War 1.237 Of these, sixty-eight werecases in which the United States employed sanctions against othercountries for various reasons including the promotion of humanrights.23

' For example, in 1977 alone, the United States institutedsanctions against Paraguay, Guatemala, Argentina, Nicaragua, ElSalvador, and Brazil to coerce those countries into improving theirhuman rights records. 239 The following two examples demonstratethat the threat or actual imposition of sanctions by the United Statescan help to improve human rights.2 40

1. Sanctions against Argentina

Legislative restrictions on military aid and sales, in addition torestrictions on Export-Import Bank loans to Argentina, were a keyingredient in a United States foreign policy that sought to pressureArgentinean military leaders to end the "dirty war" in whichthousands of innocent people disappeared.241 In February 1977, Pres-ident Carter announced reductions of military aid to Argentina from$36 million to $15 million for the fiscal year 1978.242 In July 1977,the United States froze a sale of police equipment to Argentina, andthe Export-Import Bank rejected a $270 million loan to Argentina,which was to be used for the purchase of electrical equipment.243 InSeptember of 1978, the United States Defense Department suspendedconsideration of 212 license requests for $100 million in United Statesmilitary equipment. 2" Following the imposition of sanctions and arange of diplomatic initiatives by the United States and other coun-

237 G. HUFBAUER, J. ScHOTr & K. ELLIOT, ECONOMIC SANCTIONS RECONSIDERED: HIs-

TORY AND CURRENT POLICY (1985).238 Id. at 7, 13-20.239 Id. at 18.240 Posner, A View from a Non-Governmental Organization, 31 FED. B. NEWS & J. 209, 210

(1984).241 Id.242 See G. HUFBAUER, supra note 237, at 560.243 Id.244 Id.

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tries, change in Argentina's human rights performance began to oc-cur, culminating in the 1983 democratic election of President RaulAlfonsin.245

2. Sanctions against Poland

In response to the 1981 declaration of martial law in Poland, theReagan Administration instituted a variety of sanctions against Po-land. These sanctions included a prohibition on United States loansand credits, United States opposition to Polish participation in theInternational Monetary Fund, and denial of MFN status to Po-land.246 The sanctions were to remain in effect until Poland: (1)ended martial law; (2) freed all political prisoners; and (3) resumedtalks with the Polish Church and Solidarity.2 47 The subsequent re-lease of political prisoners and the hastening of democratic reform inPoland resulted, at least in part, from these sanctions.248

E. Opposition to Sanctions

The Bush Administration, certain members of Congress, andsome business leaders oppose additional sanctions against China fortwo reasons: (1) additional sanctions will hurt those people the UnitedStates seeks to help, specifically, the political and economic reform-ers;249 and (2) additional sanctions will threaten United States secur-ity interests.250 Although appealing in theory, such arguments areunsupported by fact. United States support for the victims of humanrights violations by a repressive government gains support of thatcountry's people, regardless of that country's ideology.25I Failure toimpose maximum sanctions or, in the case of the United States, thedecision to send two secret missions of high-level government officialsto cajole Chinese officials only months after the crackdown,252 sends a

245 Posner, supra note 240, at 210.246 Neier's Statement, supra note 205, at 10.247 Id.248 Id. at 10-11.249 Where Do We Go From Here?, supra note 25, at 249 (statement of Richard E. Gillespie,

Vice President, U.S.-China Business Council).250 See Lewis, The Kissinger Syndrome, N.Y. Times, Dec. 17, 1989, § 4, at 21, col. 1.251 AMNESTY INTERNATIONAL USA, HUMAN RIGHTS AND U.S. FOREIGN POLICY: A

MANDATE FOR LEADERSHIP 3 (1987).252 The first mission occurred over the Fourth of July weekend in 1989, just one month after

the crackdown. See Kessler Memo, supra note 200, at 5, 10. In violation of his sanctionsagainst high level military exchanges with China, President Bush sent National Security Advi-sor Brent Scowcroft and Deputy Secretary of State Lawrence Eagleburger to China. Id. at 8.This mission was not revealed until December 18, 1989, after the second secret mission hadoccurred. Id. at 10. The contents of the first meeting has not been revealed. Id.

The second mission occurred on December 9, 1989. See Friedman, China Trip Seeks to

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message to the victims of the massacre that the United States onlyminimally supports their cause. The missions further signal the re-pressive Chinese government that it may keep violating human rightswithout suffering significant repercussions.253

When defending the secret diplomatic missions to China, Presi-dent Bush repeatedly states that he does not "want to isolate" theChinese people. 254 However,. he apparently means that he does notwant to isolate those in power.255 Preserving relations with the re-pressive government in China may serve the short-term interests ofthe United States if American foreign policy continues to be domi-nated by Cold War concerns, 256 but it does not serve the long-terminterests in a democratic China, nor does it serve America's "moralresponsibility to assist the forces of freedom and reform. ' 25 7 In short,the Bush Administration has nothing to show for its forbearance to-ward the Chinese dictatorship.258

As the United States continues to remove sanctions againstChina, repression in that country worsens. Although martial law inBeijing was lifted on January 11, 1990, the change has been symbolicat best. 259 Army forces remain in the capital, and security forces havebeen ordered to intervene at the first sign of trouble.26

0 Efforts to keepforeign reporters under strict surveillance and to limit unauthorized

Alter Americans'Perceptions, N.Y. Times, Dec. 10, 1989, at 23, col. 1. According to a govern-ment official, the purpose of the second mission was to send "a political signal that we are nowready to resume relations on a more normal basis." Id. The New York Times reported thatthe administration would like to treat the crackdown in June, "as an unfortunate affair-which, while regrettable, should not be allowed to overshadow the strategic importance ofChinese-American relations." Id.

253 See generally Human Rights and Multilateral Aid to China and Somalia: HearingsBefore the House Subcomm. on International Development, Finance, Trade and Monetary Pol-icy, 102d Cong., 1st Sess. 22 (1989) (statement of Minxin Pei, Chinese graduate student,Harvard University).

254 See Lewis, supra note 250. However, isolation is precisely what he accomplished. Thepro-democracy supporters will long remember National Security Advisor Brent Scowcroft'stoast to Chinese leaders: "in both our societies there are voices of those who seek to redirect orfrustrate our cooperation. We both must take bold measures to overcome these negativeforces." Kessler Memo, supra note 200, at 10.

255 See Lewis, supra note 250.256 While China was initially perceived as a counterbalance to Soviet expansionism, the

importance of that strategic force diminishes as tensions between the United States and theSoviet Union decrease. See generally US. Policy Toward China: Hearing Before the SenateComm. on Foreign Relations, 102d Cong., 2d Sess. 3 (1990) (statement of Lawrence S.Eagleburger, Deputy Secretary, Department of State).

257 Lewis, supra note 250.258 Lewis, Trahison Des Clercs, N.Y. Times, Mar. 9, 1990, at A35, col. 1.259 Ming, Cosmetic Change, FAR E. ECON. REV., Jan. 25, 1990 at 8.260 Kristof, China Seeks Respectability, But Painlessly, N.Y. Times, Jan. 14, 1990, § 4, at 1,

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contacts with Chinese citizens have intensified since the announce-ment.26' Unauthorized demonstrations remain illegal; even shoutingon Tiananmen Square is an offense.262

By imposing sanctions, the United States could accomplish whatthe Bush Administration has failed to do diplomatically: (1) induceChina to change its repressive policies and practices; and (2)strengthen the pro-democracy movement by assuring United Statessupport and bolstering the participants' resolve to fight governmentrepression of their fundamental rights.263 United States imposition ofsanctions provides Chinese officials with a choice: they may continuetheir repression and forego aid, or they may forego repression andreceive aid.

CONCLUSION

The Bush Administration's "wait and see" attitude with respectto additional sanctions against China is not only a grave mistake, buta violation of the law and moral order for which the United Statesstands. In his speech to military commanders on June 9, 1989, DengXiaoping affirmed China's commitment to economic reform. 26

1 Hecited several areas in need of investment, including the supply of rawmaterials, transportation, and energy,265 and stated that obtaining for-eign loans to improve these areas is a vital necessity.2 66

As a means of alleviating repression in China and encouragingcompliance with international human rights, President Bush shouldexploit China's need for aid by attaching a human rights agenda as acondition to assistance. Presidential sanctions against China shouldbe reinstated and maintained until China:

1. Terminates the persecution of the peaceful demonstrators ofMay-June 1989 and grants amnesty to those imprisoned;

2. Terminates the propaganda and ideological campaigns against le-gitimate foreign reporting;

3. Resumes the commitment to economic and political reform, in-cluding observance of the constitutional provisions of free speech,press, assembly, and demonstration; and,

4. Establishes a plan for succession to the leadership of the aging

261 Kristof, China Is Watching Watchers Closely, N.Y. Times, Feb. 26, 1990, at A2, col. 4.262 Kristof, supra note 260 at 3, col. I.263 For a discussion of the purpose of sanctions in general, see Nagan, Economic Sanctions,

US. Foreign Policy, International Law and the Anti-Apartheid Act of 1986, 4 FLORIDA INT'LL.J. 85, 110 (1988).

264 Deng's June 9 Speech, supra note 88, at A6.265 Id.266 Id.

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Deng Xiaoping. The potential successors should not include theperpetrators of the massacre.267

Provided these conditions are ultimately satisfied by China, re-moval of sanctions and an offer of further aid will fully comply withUnited States's security and economic legislation.268 In contrast, theBush Administration's "wait and see" attitude with respect to impos-ing additional sanctions against China results in illegal application ofUnited States's domestic foreign assistance legislation and vilifies thepro-democracy demonstrators who lost their lives for freedom whileattempting to uphold the principles upon which the United Statesstands: freedom of speech, press, and assembly.

Jennifer E. Morris

267 See Where Do We Go from Here?, supra note 25, at 103 (statement of Michael Ok-senberg, Center for Chinese Studies, University of Michigan).

268 If China were no longer engaged in a "consistent pattern of gross violations of interna-tionally recognized human rights," as defined by section 502B,' aid to China would not violateUnited States's security and economic legislation.

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APPENDIX A

History of the Pro-Democracy Movement

The military crackdown at Tiananmen Square marked the culmi-nation of a series of events which began on April 15, 1989, with thedeath of former Communist Party General Secretary, Hu Yaobang.269

Hu, an outspoken champion of political reform and intellectual free-dom, resigned as General Secretary in 1987 when the 1986-87 pro-democracy demonstrations were suppressed. His death sparked a newprotest beginning on April 17, 1989, by over 10,000 students fromPeople's University and Beijing University.2 7° The students' demandsincluded rehabilitation of Hu's reputation, repudiation of prior cam-paigns against "spiritual pollution" and "bourgeois liberalization,"freedom of speech and press, removal of restrictions on peaceful dem-onstrations, public disclosure of the finances of senior officials, an endto the corruption in government, increased expenditure on education,and higher salaries for, intellectuals.27' Despite official bans on publicdemonstrations promulgated by the Beijing's People's Congress,thousands of students began camping in Tiananmen Square on April22, 1989, the date of Hu's funeral. On April 24, 1989, the studentsbegan boycotting classes.272

In the ensuing weeks, government officials repeatedly rejectedstudent requests for dialogue and retraction of a People's Daily edito-rial labelling the student movement, as "turmoil." In response, 1000students began a hunger strike on May 13; another 2000 joined a fewdays later.273 The visit of Soviet Union President Mikhail Gorbachevto the People's Republic of China aroused additional support for re-form. On the first day of the Gorbachev visit, 100,000 people were inTiananmen Square and by May 18, over one million.274 Students nolonger formed the overwhelming majority since teachers, workers,journalists, and other citizens had joined the demonstrations.27 Thestudents ended their hunger strike on May 19 after a visit from PrimeMinister Li Peng who reportedly acknowledged the students "patri-otic enthusiasm" and their "good intentions. '276

269 See Bachman, China's Politics: Conservatism Prevails, CURRENT HIST., Sept. 1989, at259-60.

270 Id.271 MASSACRE IN BEIJING, supra note 19, at 21-22.272 Id. at 22.273 Id.274 Bachman, supra note 269, at 296-97.275 See Bachman, supra note 269, at 296-97; MASSACRE IN BEIJING, supra note 19, at 21-

22.276 AMNESTY INTERNATIONAL, supra note 11, at 2.

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On May 20, however, Li Peng signed an order executing martiallaw in part of Beijing. Under martial law, demonstrations, petitions,class boycotts, work stoppages, and other activities amassing peoplewere banned.277 In addition, people were forbidden from spreadingrumors, making speeches, and distributing leaflets.278 Journalistswere forbidden to use press coverage to incite propaganda. Assault ofthe party, the government, the army, and communication units wasfurther prohibited.279 Although the demonstrators initially rushed tothe streets of Beijing to block the entrance of the military into the city,popular mobilization declined. By May 29, the number of students inthe square had fallen to approximately 2000. The number remainedin the low thousands until the army forced its way into TiananmenSquare on June 3, when the slaughter began.2 80

277 See Martial Law for Part of Beijing, China Daily, May 22, 1989, at 1, col. 3.278 Id.

279 Id.280 MASSACRE IN BEIJING, supra note 19, at 23.

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APPENDIX B

Eyewitness Account of Massacre at Tiananmen Square

At early dawn of 4 June, three armoured vehicles sped from thenorth into the Xidan intersection, crushing a bus that had beenparked in the intersection as a barricade. Rumbling vehicles andcontinuous gun shots were heard approaching from the directionof the Military Museum. People fell in large numbers in the areabetween the Military Museum and Xidan. Workers returninghome from night shifts also suffered gun shots.

At 0040 hours, troops fired tear-gas at around 500 metres fromXidan. Unable to keep their eyes open, the people had to squatdown to keep away from the gas. At this moment, a vehicle caughtfire. This was the work of plainclothes police for the purpose ofblaming it on the students and creating an excuse for the govern-ment to kill.

At 0050 hours, huge numbers of anti-riot police yelling "open fire"emptied rounds of ammunition into the defenceless students andcitizens. Scores of people were shot to death on the spot, and hun-dreds were injured. Among the dead were bystanders. Those tak-ing refuge in small alleys were found by soldiers and killed. Deepin an alley in Xidan, four people were shot dead, among whom a 3-year-old child and an old man over 70. There was no survivor inthis group. A little over 0100 hours, many troops charged intoXidan intersection. Soldiers poured bullets into crowds of specta-tors, who fell in large numbers. Not only did they continue theshooting rampage, but they also chased people running away fromthem, and used sticks, whips and guns to beat them. A femalestudent from the Second Foreign Language Institute suffered inju-ries in both feet. Several schoolmates came up to help her. Theywere shot at with automatic guns. Five fell.

Three hours later, the troops had deserted Xidan. People who hadsurvived the onslaught rushed back toward Tiananmen Square.All the roadways had been blocked by the army, which startedfiring at the approaching people again. Those running away wereshot in the back. The louder the chanting of slogans, the moreintense the gun fire.2 8'

281 AMNESTY INTERNATIONAL, supra note 11, at 20.

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APPENDIX C

Victim's Account of Torture

On the morning of 4 June 1989, F wanted to go sight-seeing inBeijing. He apparently did not know what had happened duringthe night and was cycling in the streets close to Tiananmen Squarewhen, without knowing, he entered a restricted area. At 1130hours he was stopped by soldiers and beaten with a stick on theshoulders and back. They took away his rucksack, his camera andfilms. An officer then took him to a government building on oneside of Tiananmen Square, and subsequently into a building insidethe Forbidden City, which he thought to be a centre for radio com-munication. He was questioned about his belongings, hit on thehand, then an officer took out his pistol to intimidate F. F wasasked to stand close to the wall, then to sit down, then to stand upagain (several times).

He was then taken out on the Square and walked under escort forabout ten minutes across the park on the right side of the entranceto the Forbidden City (seen from outside). There he was held in aroom under military guard with the four other foreigners: anAmerican and his pregnant wife; a fifteen-year-old Pakistani boyand a 47-year-old Italian journalist who had a bleeding headwound and bruised ribs.

All five were repeatedly struck by a soldier with an electric batonas they were brought to this holding centre. They were questionedby officers of the Beijing Police for about 60 to 90 minutes each,and were not allowed to contact their embassies. During this timeF could hear screams from a nearby building into which woundedChinese detainees were being taken. They had head wounds andother injuries, and they were tied with hands behind their backsand attached to a cord tied around their necks. The foreigners sawa number of detainees being beaten by soldiers before they werethemselves released.

At 0200 hours the foreigners were taken out of the room and Fcame close to the building. He looked inside the building and sawa room, which was about 12 by six metres, containing at least 80wounded people. "It looked like a butchery" said F. About onehour later the foreigners were released outside the park. F hadbruises and suffered from pain for about 14 days.282

282 Id. at 37.

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APPENDIX D

Various Martial Law Decrees Instituted in Beijing from May 20,1989 Through June 12, 1989

Martial Law Decree No. 1, issued May 20, 1989:Based on the order to impose martial law on parts of Beijing

signed by Premier Li Peng, in order to speedily check the socialturmoil and to restore day to day work, production, education andresearch activity in the capital, the Beijing People's Governmentspecially issues the following order:

1. Commencing at 10 A.M. on 20 May 1989, martial law willbe imposed on the Dong Cheng [East City], Xi Cheng [West City],Song Wen Xuan Wu, Dan Jing Shan, Hai Dan, Feng Tai, and ChaYang districts.

2. During the martial law period, protests, petitions, studentand worker strikes, and other mass activities which jeopardize thenormal order are strictly forbidden.

3. It is strictly forbidden in any way to create and spreadrumours, establish ties [networking], make speeches, distributeleaflets, and to foment social turmoil.

4. Attacks on Party, government and military leaders and or-gans are strictly forbidden. Attacks on broadcasting, communica-tions, and other important work units are strictly forbidden.Destruction of important public facilities is strictly forbidden.Beating, breaking, looting, arson, and all other destructive activi-ties are strictly forbidden.

5. It is forbidden to harass foreign diplomatic missions andUN organs stationed in Beijing.

6. If any one of the forbidden activities enumerated above oc-cur during the martial law period, the public security forces, thearmed security forces, and the People's Liberation Army have thepower to adopt any method necessary to deal firmly with thesituation.It is hoped that all the city's citizens will respect and observe theregulations set out above.2 83

Martial Law Decree No. 3, issued May 20, 1989:

During the period of martial law, the following rules will gov-ern news coverage by journalists:

1. Chinese and foreign journalists are strictly forbidden to usenews coverage to issue inciting or inflammatory propaganda.

2. Foreign journalists... may not, either in the streets or bygoing to official institutions, organizations, schools, factories, en-

283 MASSACRE IN BEIJING, supra note 19, at Appendix C.

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terprises and neighbourhoods, conduct newsgathering activities,take photos, make videotapes, or engage in similar activitieswithout the permission of the Beijing People's MunicipalGovernment.2 84

Martial Law Deqree No. 10, issued June 8, 1989:

The Autonomous Federation of Beijing University Students andthe Autonomous Federation of Beijing Workers are unregistered,illegal organizations. They must immediately disband.

The members of these organizations must immediately cease allillegal activities.

The leaders of these two organizations were important elements ininciting and organizing the counter-revolutionary turmoil. Uponthe issuance of this announcement today, the two categories of peo-ple mentioned above must immediately turn themselves in to theirlocal public security organizations in order to win more lenientpunishment. As for those people who refuse to turn themselves in,a "wanted" bulletin will be issued and they will be severelypunished.28 5

284 Id.285 Id.

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