El Que La Hace, La Tiene

Nay, the extent of ground is of so little value, without labor, that I have heard it affirmed, that in Spain itself a man may be permitted to plough, sow and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But on the contrary, the inhabitants think themselves beholden to him, who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted.

–John Locke, Second Treatise, sect. 36

“Is the land there owned by the peasants?”

“Most land is owned by those who farm it. Originally the land was owned by the state and by living on it and declaring the intention of improving it, a man could obtain title to a hundred and fifty hectares.”

“Tell me how this is done,” Agustin asked. “That is an agrarian reform which means something.”

Robert Jordan explained the process of homesteading. He had never thought of it before as an agrarian reform.

“That is magnificent,” Primitivo said.

–Ernest Hemingway, For Whom the Bell Tolls, ch. 16.

Imagine: Living in a Socialist America (Run by Republican Aristocrats)

I met these Democratic candidates for Readington Town Committee over breakfast the other day, and asked them what differentiates them from the Republicans who dominate politics around town. Without blinking an eye, they said that as Democrats, they favor a pro-development, pro-business platform against the local Republican machine, which is running against development and against business in the name of “Open Space.”

Image result for elizabeth fiore denise esakof

According Esakoff and Fiore, thirty percent of Readington Township is already open space, large swatches of it off limits to most people, but the Republicans want more: because you can never have too much of a resource that lots of people are excluded from using.  Huge swatches of “preserved farmland” lie in Readington Township alone, acquired at 50-100% “State Cost” i.e., through purchases by the county or the municipality, or through purchase by State Agricultural Development Committee fees. Continue reading

Terrorism Justified: A Response to Vicente Medina

[This is a draft of the paper I’ll be presenting this Saturday at the Author Meets Critics session I’m organizing on Vicente Medina’s Terrorism Unjustified: The Use and Misuse of Political Violence, featuring presentations by Theresa Fanelli (Felician), Graham Parsons (West Point), and myself, with a response by Vicente Medina (Seton Hall). Comments welcome. For a link to an earlier discussion of Medina’s book at PoT, go here.]

Terrorism Justified: Comment on Vicente Medina’s Terrorism Unjustified
Author Meets Critics Session
Felician University, Rutherford, New Jersey
April 21, 2018
Irfan Khawaja
Felician University

  1. Introduction

Vicente Medina’s Terrorism Unjustified offers a comprehensive, clear, and thorough critique of terrorism. There’s a sense in which I agree with and greatly admire Medina’s argument, and a sense in which I fundamentally disagree with and reject it. In this paper, I’ll focus on the disagreement, in the hopes that in doing so, the implicit agreement will come out as well.

I begin in Section 2 by making some critical observations on Medina’s definition of “terrorism.” The definition, I suggest, pushes the reader in two different directions—a categorical rejection of terrorism, and a subtly conditional one. On the latter interpretation, terrorism can be justified, but only in situations that Medina regards as extremely implausible and unlikely. In Section 3, I offer an extended thought-experiment, verging on a fable, intended to give plausibility one such situation. In other words, the case I describe is one in which it seems (to me) justifiable to target people that Medina would regard as “innocent noncombatants,” or else to inflict foreseeable harm on them without having to meet a “reasonable doubt” criterion as to their moral status. In Sections 4 and 5, I make explicit what the fable leaves implicit. Continue reading

Neutrality Loathsome

God will have all, or none; serve Him, or fall
Down before Baal, Bel, or Belial:
Either be hot, or cold: God doth despise,
Abhorre, and spew out all Neutralities.
–Robert Herrick (1846)

Robert Nozick, on Locke’s theory of acquisition, in 1974:

Why does mixing one’s labor with something make one the owner of it? Perhaps because one owns own’s labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. Ownership seeps into the rest. But why isn’t mixing what I own with what I don’t own a way of losing what I own rather than a way of gaining what I don’t?…Perhaps the idea, instead, is that laboring on something improves it and makes it more valuable; and anyone is untitled to own a thing whose value he has created….Ignore the fact that laboring on something may make it less valuable (spraying pink enamel paint on a piece of driftwood you have found). Why should one’s entitlement extend to the whole object rather than just to the added value one’s labor has produced? (Anarchy, State, and Utopia, pp. 174-75).

From an article in The New York Times on the judgment in the 5Pointz graffiti case a few days ago:

Ruling that graffiti — a typically transient form of art — was of sufficient stature to be protected by the law, a federal judge in Brooklyn awarded a judgment of $6.7 million on Monday to 21 graffiti artists whose works were destroyed in 2013 at the 5Pointz complex in Long Island City, Queens.

In November, a landmark trial came to a close in Federal District Court in Brooklyn when a civil jury decided that Jerry Wolkoff, a real estate developer who owned 5Pointz, broke the law when he whitewashed dozens of swirling murals at the complex, obliterating what a lawyer for the artists had called “the world’s largest open-air aerosol museum.”

Though Mr. Wolkoff’s lawyers had argued that the buildings were his to treat as he pleased, the jury found he violated the Visual Artists Rights Act, or V.A.R.A., which has been used to protect public art of “recognized stature” created on someone’s else property.

So whatever the added value of pink enamel paint, the added value of multicolored enamel paint turns out to have a pretty specific dollar amount. Continue reading

Football: The Final Frontier

Much of our national life can be defined according to frontier and hinterland attitudes. Take our two national pastimes, football and baseball. Football is a frontier game, because it has to do with the conquest of territory. The aim of the game is to invade the other team’s land and settle there until you’ve crossed the goal line. As on the frontier, time of possession is everything.

Football is a metaphor for land hunger, a ritualized reenactment of the westward movement, going back to colonial times. Look at the names of some of the teams in the NFL, the Patriots, the Redskins, the Cowboys, the Broncos, the Forty-Niners, the Chiefs, the Raiders, the Buffalo Bills, and the Oilers, all names connected with different stages of the frontier epic. Look at the way a first down is measured. Officials bring out the chains, which are a vestigial replica of the surveyors’ chains and a reminder of the men who marked off the wilderness, dividing it into ranges and townships and sections.

On their hundred-yard-long turf-covered universe, football players act out the conquest of the frontier. And just as they fought the taking of their land on the real frontier, Native Americans today protest the appropriation of their past on the football field, in the use of team names like the Redskins and Chiefs, and in the hoopla of fans painting their faces, wearing chicken-feather headdresses, and waving foam-rubber tomahawks. In the game itself there are emulations of Indian customs, such as the huddle, which is a stylized Indian pow-wow, and the gauntlet that each player must run upon entering the stadium.

Football breeds a defiant frontier attitude, because someone is out to get you and you’re not going to let him. As the late linebacker Lyle Alzado once said: “I don’t think there is anyone on earth who can kick my ass.” Another great linebacker, Lawrence Taylor, once said that his purest joy was to hit someone so hard he could see the “snot bubble out of his nose.” And here’s the Chicago Bears coach Mike Ditka defining the frontier ethic as well as the game of football: “It’s people hittin’ each other, that what it’s all about. I’m tired of skill.” Skill gets taken for granted, while there’s a degree of physical punishment reminscent of  life in the wilderness. The limits to that punishment are suggested by some of the penalties, such as “piling on,” “unnecessary roughness,” and my personal favorite, which has a colonial ring in its phrasing, “coming unabated at the quarterback when offsides.”

–Ted Morgan, Wilderness at Dawn: The Settling of the North American Continent (1993), p. 14.

Continue reading

The Color of Rights: Malheur, Standing Rock, Palestine

About a year and a half ago, having spent a summer in Palestine and a week on Pine Ridge Indian Reservation, I ventured the observation on Facebook that three political disputes I’d “recently encountered” (in a loose sense of “encountered”) struck me as fundamentally similar in nature, and yet attracted fundamentally different constituencies. For brevity’s sake, let’s call them “Malheur,” “Standing Rock,” and “Palestine,” taking those as  shorthand designations for more complex things. Continue reading

“My Circuits Gleam”: A Fourth Amendment Query

A legal question for Fourth Amendment lawyers out there:

It’s settled law that if you’re in a Terry stop, you have a duty to comply with the orders of the officer who stops you. Likewise, if you receive a summons or citation from court, you’re obliged to respond. Etc.

But suppose that you (somehow) discover a listening/video device planted or inserted in or on an object that would ordinarily be protected by the Fourth Amendment, e.g, your car, your home, your computer, your phone. You surmise that the device was put there by the government in order to spy on you–but can plausibly assert (whether truthfully or not) that you don’t know for sure who put it there. Are you obliged to “comply” with government surveillance by analogy with a Terry stop? In other words, are you obliged to let government surveillance continue without interference after you’ve discovered that it’s taking place? Or can you destroy or disable an A/V device on the grounds that no officer was present to give you an order to comply with anything?

If you do destroy/disable the device, and the device was there through a procedurally correct search warrant, can you be held criminally liable for undermining the government’s attempt to surveil you? There is, after all, no way for the person under surveillance to know that the surveillance in question had the authority of a warrant.

My potentially archaic terminology of a “listening/video device” conjures up Cold War imagery of “bugs,” but I really mean: any discoverable form of electronic surveillance (e.g., a GPS device that you find attached to your car). The issue overlaps with encryption law, but encryption pre-empts surveillance before it takes place, rather than disabling surveillance that’s currently under way–and I’m thinking about the latter. The issue I have in mind strikes me as slightly more analogous to possession of a radar-detector than to the use of encryption, but that analogy breaks down pretty quickly as well.

Hence the question, as it seems a distinctive sort of case. The issue is not addressed in the very basic criminal procedure textbook I use, Matthew Lippman’s Criminal Procedure: the textbook assumption seems to be that electronic surveillance almost always goes undiscovered by the target. (I own the second edition of the book [2013], not the most recent one.)

Analogous issues may seem to arise for physical surveillance, but I don’t think they do: for the most part, if you’re under physical surveillance out in public space, you’re in plain view: you can act as you please (within the normal limits of the law), and so can the government. In that case, you have the right to go out of plain view, in which case they have the right to search or seize you if they have reasonable suspicion that you’re committing a crime. But that’s just a Terry stop, so it raises no new issues.

I’ve been surveilled twice by drone (by Israeli rather than American authorities). I’ve always wondered what would have happened, legally speaking, if I’d found a way to knock the drone out of commission, and pretend that I had no idea who had sent it. Of course, practically speaking, I kind of know what would have happened.

(Thanks to John Semel for the link to the GPS story above, and for some helpful comments on Facebook.)

Felician Conference Postscripts (1): Blake Wilson on Private Property

This is the first in a series of posts on the Tenth Annual Felician Institute Conference on Ethics and Public Affairs. For the introduction to the series, read this.

The first of the sessions I attended (and chaired) was one on (private) property rights, featuring two papers–one an essentially Hegelian justification of private property rights by Blake Wilson (SUNY Binghamton), the other a Lacanian account of a dilemma about private property by Chris Ketcham (University of Houston, Downtown). I’m going to discuss Blake’s paper rather than Chris’s, in part because Chris’s paper was aporetic rather than thesis-driven, and also because the aporia in Chris’s paper arises from the idiosyncrasies of Lacan’s conception of our obligations to others, a topic I’m not qualified to discuss, having read very little Lacan.

Continue reading

Problems from Locke

I can’t be the first one to have spotted this, but I’m teaching Locke tomorrow, and on my nth reading of Second Treatise chapter 5, it suddenly occurs to me that the assumption commonly attributed to Locke as the starting point of his discussion of property in the Second Treatise is much more puzzling than I had previously realized. Locke says that revelation makes clear that God gave the world “to mankind in common.” But how can that be, if God gave the Promised Land to Israel?

Continue reading

2015 FELICIAN INSTITUTE FALL SYMPOSIUM: THE ETHICS, POLITICS, AND ECONOMICS OF WATER

I’m moving this back up to the top with several new links, and a few minor modifications. We’re hoping to add a fourth speaker; more on that soon.

The Fourth Annual Felician Institute Fall Symposium–“The Ethics, Politics, and Economics of Water”–will take place on Saturday, October 24, 2015 between 1 and 5 pm in the Education Commons Building on Felician’s Rutherford, New Jersey campus. Speakers include Joshua Briemberg, Representative for Program Development, WaterAidBritt Long, Esq., an attorney in private practice and one-time litigator for the Montana Department of Natural Resources and Conservation; and Donald R. Conger III, PE – Project Director with CH2M Operations & Management Services for the North Hudson Sewerage Authority. This event is co-sponsored by the Felician Institute for Ethics and Public Affairs, the Felician College Pre-Law Program, and the Felician College UN Fellows Program.

Moderator: Irfan Khawaja, Director, Felician Institute for Ethics and Public Affairs.

If you’re in the area, please stop by. The event is free and open to all. Refreshments will be served (yes, fresh water, too). For GPS purposes, the street address is: 223 Montross Ave., Rutherford, New Jersey, 07070. Please park in Lot D on Montross Avenue. The Ed Commons is the new, mostly steel- and glass-constructed, modern-looking building directly on Montross.

Here are some interesting water-oriented links worth reading to whet your appetite for the event and offer a sense of the range and ubiquity of the issues involved (not necessarily indicative of the content of any given speaker’s presentation):

Philosophical discussions 

Ali: This is my well. Lawrence: You obviously have not been keeping up with the literature on water rights, Ali. Have you not read Mattias Risse in JPP? That was last year. Are you not registered for the Felician Institute event on water? It’s in ten days. Ali: Did I happen to mention that this is my well? And that I’m the one with a gun?

Policy-based and journalistic discussions from a global perspective

Policy-based and journalistic discussions with a domestic (American) focus

wateraid (1)