Legalism K

Legalism K
Notes
This is a critique of the law (more specifically normative legal thought). It can be run
as either just a state bad K or as a PIK out of the plan text for softer K affs.
There are some cards specific to rights affs (e.g. affs that claim advantages based off
the right to privacy). You can still read the generic links for those affs, but the rights
links are much stronger.
If youre wondering what normative legal thought is

Schlag 90 (Pierre, Professor of Law, University of Colorado, NORMATIVE AND NOWHERE TO GO,
Stanford Law Review (November 1990),
http://lawweb.colorado.edu/profiles/pubpdfs/schlag/SchlagSLR.pdf)
[FN38]. Quite the contrary. One important conventional understanding within the legal academy treats normative legal thought as being
opposed to formalism. This conventional understanding of normative legal thought is much narrower than my use of the expression in this
essay. In
conventional terms, normative legal thought has been associated with a group of left-liberal legal
scholars who favor open-ended forms of value talk and argument in the courts and in the academy. Their
theory of legal legitimacy and legal meaning depends heavily and very rapidly on the explicit moral
justification of legal decisions. The normative legal thinkers understand themselves to be opposed to a
second group consisting of center-right scholars: the doctrinalists. The doctrinalists are committed to more technical forms of legal
argument that they claim to be distinctly legal--different and separable from the general cultural run of moral or political argument. Their theory
of legitimacy and legal meaning inclines heavily and very rapidly toward legal positivism. The two sides of this conventional dispute are aptly
personnified by Ronald Dworkin and Robert Bork, respectively. Compare R. DWORKIN, supra note 4, with Robert Bork, Neutral Principles and
the First Amendment, 47 IND. L.J. 1 (1971). This conventional dispute has been extremely influential in fashioning the legal academy's
understanding of normative legal thought. Indeed, throughout the legal academy, normative legal thought is often conventionally associated
with the left-liberal plea for open-ended value talk and is typically opposed to technical doctrinalism. Because the left-liberals have charged the
doctrinalists with formalism and authoritarianism (see, e.g., Robin West, The Authoritarian Impulse in Constitutional Law, 42 U. MIAMI L. REV.
531 (1988)), the prevalent understanding in the legal academy is that normative legal thought stands in opposition to formalism. This essay tries
to get beyond this conventional understanding of the dispute. Both
sides are caught up within their own formalism and
both sides are pervasively normative. The claim here is that both old-style doctrinalism and normative
thought can most helpfully be understood as two related moments within the same practice of
normative legal thought--two related moments that are highly reminiscent of the classic rules vs.
standards dispute. Indeed, one side emphasizes the need for closure, certainty, and generality, while the
other emphasizes the need for openness, flexibility, context, etc. As with the classic rules vs. standards
dispute, each jurisprudential moment collapses into and produces the other --and both are related to
each other in the manner of an arrested dialectic. See Pierre Schlag, Rules and Standards, 33 UCLA L. REV. 379, 426-29 (1985).
Neg
1NC
1NC---Generic
Legal solutions to political problems cause externalization of agency---rule of law
removes individual responsibility
Rozo 4 (Diego Cageas, MA in Philosophy and Cultural Analysis, International School for Humanities
and Social Sciences, Universiteit van Amsterdam, Jan 2004, Forgiving the Unforgivable: On Violence,
Power, and the Possibility of Justice,
http://admin.banrepcultural.org/sites/default/files/forgiving_the_unforgivable.pdf, Accessed
7/7/15)//LD
For reasons explained before, Benjamin thinks that laws interest in a monopoly of violence vis--vis individuals
is explained not by the intention of preserving legal ends but, rather, by t he intention of preserving the
law itself. (CV 239) This intromission of the legal order in even the most seemingly private and individual affairs is explained by the
functioning of law-preserving violence in its attempt to maintain the rule of law . As we have seen, law cannot help
feeling threatened by every possible act of not-yet-sanctioned violence. Therefore, the need for enforcing the law becomes
increasingly urgent wherever and whenever it may be needed , even before this enforcing is effectively
asked for lawpreserving violence is a threatening violence (CV 242); it exerts vengeance on those who dare question laws fate-imposed
ends. And that is exactly what the economics of violence consists of: looking for someone, anyone to blame for my own suffering. The
enforcing of law brings with it a never-ending search for culpable agents of the suffering that law exerts
on itself. The state looks insatiably for somebody to accuse anywhere. This is why private affairs have to become part of the sphere of laws
applicability: transgressions of the legal code have to be made possible in every human activity for law to be
enforced everywhere, hence achieving an all-pervading presence . The enforcing of law opens an economy of violence
where justice becomes a matter of offsetting violence, hopefully with a lesser violence but factually with an ever-increasing violence. At the end,
at its most brutal moment, law-preserving violence ends up turning law on itself , namely, on the same
institutions that were created to protect it . Jean-Luc Marion dubs this economy of violence as a certain logic of evil, and
demonstrates its dangers: The more a political power perverts its actions in an infinite vengeance, the more it
has to end up exerting violence upon itself: the tyrant distrusts himself ; State Police is surveyed by other Police corps;
the party is regularly depurated19 Within the legal order the relations between individuals will resemble this logic where suffering is
exchanged for more, but legal suffering, because these relations are no longer regulated by the culture of the heart [Kultur des Herzens]. (CV
245) As Benjamin describes it, the legal
system tries to erect, in all areas where individual ends could be usefully
pursued by violence, legal ends that can be realized only by legal power . (CV 238) The individual is not to take law in
his own hands; no conflict should be susceptible of being solved without the direct intervention of law, lest its authority will be undermined.
Law has to present itself as indispensable for any kind of conflict to be solved . The consequence of this infiltration
of law throughout the whole of human life is paradoxical: the more inescapable the rule of law is, the less responsible
the individual becomes. Legal and judicial institutions act as avengers in the name of the individual. Even
the possibility of forgiveness is monopolized by the state under the right of mercy. Hence the responsibility of the person toward
the others is now delegated on the authority and justness of the law . The legal institutions, the very
agents of (legal) vengeance exonerate me from my essential responsibility towards the others, breaking the
moral proximity that makes every ethics possible.20 Thus I am no longer obliged to an other that by his/her very
presence would demand me to be worthy of the occasion (of every occasion), because law, by seeking to regulate affairs
between individuals, makes this other anonymous, virtual: his otherness is equaled to that of every possible other. The Other becomes faceless,
making it all too easy for me to ignore his demands of justice, and even to exert on him violence just for the sake of legality. The logic of evil,
then, becomes not a means but an end in itself:21 state violence for the sake of the states survival. Hence, the ever-present possibility of the
worst takes the form of my unconditional responsibility towards the other being delegated on the ideological and totalitarian institutions of a
law gone astray in the (its) logic of selfpreserving vengeance. The
undecidability of the origin of law, and its consequent
meddling all across human affairs makes it possible that the worst could be exerted in the name of law.
Even the very notion of crimes against humanity, which seeks to protect the life of the population, can be overlooked by the state if it feels
threatened by other states or by its own population.22 From now on, my responsibility towards the Other is taken from me, at the price of my
own existence being constantly threatened by the imminent and fatal possibility of being signaled as guilty of an (for me) indeterminate offence.
In this picture, the
modern state protects my existence while bringing on the terror of state violence the
law infiltrates into and seeks to rule our most private conflicts .
Normative legal thought obscures the pain and death of disciplinary systems with
language games
It is at this point that the legal thinker recognizes that the value (if any) of normative legal thought does not depend so much on its relation to
the practices it seeks to describe or govern. It now becomes evident that the
value (if any) of normative legal thought
depends on a decentered economy of bureaucratic institutions and practices --such as those constituting and
traversing the law school, the organized bar, the courts--that define and represent their own operations, their own
character, their own performances, in the normative currency. Indeed, at this point, normative legal thought
takes on a completely different character. It becomes the mode of discourse by which bureaucratic
institutions and practices re-present themselves as subject to the rational ethical-moral control of
autonomous individuals (when indeed they are not), just as normative legal thought constructs us (you
and me) to think and act as if we were at the center --in charge, so to speak--of our own normative legal
thought (when indeed we are not). Normative *186 legal thought can no longer be seen to govern, regulate or even describe
human activity. In fact, as a further step in this degeneration/development, it now appears that it is very difficult to discern any significam
difference between normative legal thought and the operation, performance reproduction, and proliferation of bureaucratic practices and
institutions. The two collapse into each other. At this point, normative legal thought has become the operation, performance, reproduction, and
proliferation of bureaucratic practices and institutions. Normative legal thought is effective--very effective--but not in any way it imagines itself
to be. Its significance can no longer be in its specific prescriptions or conclusions (which are rarely adopted or even capable of being adopted).
Normative legal thought--this form of thought so concerned with producing normatively desirable
worldly effects-- has, ironically, become its own self-referential end. [FN52] And that end is coextensive with the operation,
performance, reproduction, and proliferation of bureaucratic practices and institutions. Welcome to the crash. My sense is that when legal
thinkers re-cognize that normative legal thought is an economy of self-refereatial instrumentalist
rhetorical structures run from elsewhere and gradually seeping themselves of meaning , both constative and
performative, playing this language game of normative legal thought will lose a great deal of its moral and
intellectual cachet. It is one thing to understand one's self as engaged in a normative enterprise aimed at
improving the moral or political or economic performance of the legal profession or the courts through
normative argument. It is quite another to understand one's self as a bureaucratic vehicle for the
proliferation of a mode of discourse (normative legal thought) that is coextensive with bureaucratic
practice and institutional inertia. As self-images go, my sense is that the latter is not really great. It is likely to lead to a certain
degree of disenchantment. And my sense is that the disenchantment of normative legal thought is already well on its way. [FN53] Now, one
reaction a normative legal thinker might have to all this is that it is all perfectly horrible --and that we
should all try to preserve our normative universe by using words more carefully and by arguing very morally
against instrumentalism and the instrumentalization of law (and so on). But *187 this argument misses the
point again. This is history--not dialogue among disembodied Cartesian selves. And it doesn't do much
good to make normative arguments against history--especially not if you keep misidentifying your own
addressee, your agent of change, your subject. Unfortunately, that is precisely what normative legal
thought keeps getting confused about. It keeps thinking that it is addressing some morally competent,
well-intentioned individual who has his [their] hands on the levers of power. [FN54] The pervasiveness of this
metaphysical confusion--its routine character within the legal academy-- is precisely what engenders the more socially situated confusions of
"liberal" and "progressive" legal academics as to whether or not the Warren Court is still sitting. [FN55] * * * All of this can seem very funny.
That's because it is very funny. It is also deadly serious. It is deadly serious, because all this normative
legal thought, as Robert Cover
explained, takes place in a field of pain and death . [FN56] And in a very real sense Cover was right. Yet as it takes place,
normative legal thought is playing language games-- utterly oblivious to the character of the language
games it plays, and thus, utterly uninterested in considering its own rhetorical and political contributions
(or lack thereof) to the field of pain and death. To be sure, normative legal thinkers are often genuinely concerned with
reducing the pain and the death. However, the problem is not what normative legal thinkers do with normative legal thought, but what
normative legal thought does with normative legal thinkers. What
is missing in normative legal thought is any serious
questioning, let alone tracing, of the relations that the practice, the rhetoric, the routine of normative
legal thought have (or do not have) to the field of pain and death . And there is a reason for that: Normative legal
thought misunderstands its own situation. Typically, normative legal thought understands itself to be
outside the field of pain and death and in charge of organizing and policing that field. It is as if the action of
normative legal thought could be separated from the background field of pain and death. This theatrical distinction is what allows normative
legal thought its own self-important, self-righteous, selfimage--its congratulatory sense of its own accomplishments and effectiveness. All this
self-congratulation works very nicely so long as normative legal *188 thought continues to imagine itself as outside the field of pain and death
and as having effects within that field. [FN57] Yet it is doubtful this image can be maintained. It is not so much the case that normative legal
thought has effects on the field of pain and death--at least not in the direct, originary way it imagines. Rather, it is more the case that
normative legal thought is the pattern, is the operation of the bureaucratic distribution and the
institutional allocation of the pain and the death. [FN58] And apart from the leftover ego-centered rationalist rhetoric of the
eighteenth century (and our routine), there is nothing at this point to suggest that we, as legal thinkers, are in control of normative legal
thought. The problem for us, as legal thinkers, is that the normative appeal of normative legal thought systematically turns us away from
recognizing that normative legal thought is grounded on an utterly unbelievable re-presentation of the field it claims to describe and regulate.
The problem for us is that normative legal thought, rather than assisting in the understanding of present
political and moral situations, stands in the way. It systematically reinscribes its own aesthetic--its own
fantastic understanding of the political and moral scene. [FN59] Until normative legal thought begins to deal with its own
paradoxical postmodern rhetorical situation, it will remain something of an irresponsible enterprise. In its rhetorical structure, it will
continue to populate the legal academic world with individual humanist subjects who think themselves
empowered Cartesian egos, but who are largely the manipulated constructions of bureaucratic
practices--academic and otherwise. [FN60]
The alternative is to create spaces beyond the grasp of bureaucratic institutions our
utopian ethic is key to breaking out of normative legal thought in the present
Newman 11 (Saul, associate professor in the Department of Government in the School of Public Affairs
at American University in Washington, DC, Postanarchism: a politics of anti-politics (October 2011),
Journal of Political Ideologies, vol. 16 no. 3)
At the same time, this

aporetic moment of tension central to classical anarchism generates new and
productive articulations of politics and ethics. The disjunction between politics and anti-politics is what might be called an
inclusive disjunction: a compound in which one proposition is true only if its opposing proposition is also true. Politics, at least in a radical,
emancipatory sense, has only a consistent identity if an anti-political, indeed utopian, dimension is also presentotherwise it remains caught
within existing political frameworks and imaginaries. Conversely, anti-politics only makes sense if it takes seriously the tasks of politicsbuilding,
constructing, organizing, fighting, making collective decisions and so onwhere questions of power and exclusion inevitably emerge. However,
this proximity to power does not invalidate anarchism; rather, it leads to a greater sensitivity to the dangers of power and the need to invent, as
mentioned before, new micro-political practices of freedom through which power is subjected to an ongoing ethical interrogation. Where
the political pole imposes certain limits, the anti-political pole, by contrast, invokes an outside, a
movement beyond limits. It is the signification of the infinite, of the limitless horizon of possibilities. This
is both the moment of utopia and, in a different sense, the moment of ethics. Anarchism has an
important utopian dimension, even if the classical anarchists themselves claimed not to be utopians but materialists and rationalists.
Indeed, some utopian element whether acknowledged or not is an essential part of any form of radical
politics; to oppose the current order, one inevitably invokes an alternative, utopian imagination. However,
we should try to formulate a different approach to utopianism here: the importance of imagining an
alternative to the current order is not to lay down a precise programme for the future, but rather to
provide a point of exteriority as a way of interrogating the limits of this order. As Miguel Abensour puts it: Is it
not proper to utopia to propose a new way of proceeding to a displacement of what is and what seems to go without saying in the crushing
name of reality?37 We are crushed under the weight of the current order, which tells us that this is our
reality, that what we have now is all there is and all there ever will be. Utopia provides an escape from
this stifling reality by imagining an alternative to it; it opens up different possibilities, new lines of flight.
Here, we should think about utopia in terms of action in the immediate sense, of creating alternatives
within the present, at localized points, rather than waiting for the revolution . Utopia is something that
emerges in political struggles themselves.38 Ethics also implies an outside to the existing order, but in a
different sense. Ethics, as I understand it here, involves the opening up of the existing political identities, practices, institutions and
discourses to an Other which is beyond their terms. Ethics is more than the application of moral and rational norms. It
is rather the continual disturbance of the sovereignty of these norms , and the identities and institutions
that draw their legitimacy from them, in the name of something that exceeds their grasp. Importantly, then,
ethics is what disturbs politics from the outside. This might be understood in the Levinasian sense of anarchy: Anarchy cannot be sovereign like
an arche. It can only disturb the Statebut in a radical way, making possible moments of negation without any affirmation.39 The point is,
however, that politics cannot do without anti-politics, and vice versa. The two must go together. There must always be an anti-political outside, a
utopian moment of rupture and excess that disturbs the limits of politics. The ethical moment cannot be eclipsed by the political dimension; nor
can it be separated from it, as someone like Carl Schmitt maintained.40 If there is to be a concept of the political, it can only be thought through
a certain constitutive tension with ethics. At the same time, anti-politics needs to be politically articulated; it needs to be put into action through
actual struggles and engagements with different forms of domination. There must be some way of politically measuring the anti-political
imaginery, through victories, defeats, and strategic gains and reversals. So while anti-politics points to a transcendence of the current order, it
cannot be an escape from it; it must involve an encounter with its limits, and this is where politics comes in. The transcendence of power
involves an active engagement with power, not an avoidance of it; the realization of freedom requires an ongoing elaboration of new practices
of freedom within the context of power relations.
1NC---Rights Affs
Claiming rights as granted by an external source rather than active desire generates
political passivity
Gabel 84 (Peter, Professor of Law, New College of California School of Law, San Francisco, The
Phenomenology of Rights-Consciousness and the Pact of the Withdrawn Selves, Texas Law Review,
Volume 62, 1984, pp. 1563-1599, Accessed 7/1/15)//LD
*edited for offensive language
If we now turn our attention to the nature of rights themselves, we can see how they represent the field of social
interaction in the service of legalizing its alienated appearances . A "right" has three phenomenological dimensions. First,
to the extent that individuals are represented as "having" rights, these rights signify social experiences that are merely
possible rather than the experiences themselves . To the extent that we think we have "the right to free
speech," "the right to make contracts," and so forth, we represent each individual ontologically as being
a passive locus of possible action, rather than as in action with others already. Second, these rights are
conceived as being granted to the individual from an outside source, from "the State" which either
creates them (in the positivist version of the constitutional thought schema) or recognizes them (in the natural-law version)
through the passage of "laws." Thus, insofar as the individual emerges from his passive station to act and
interact with others on the basis of his rights, he does so because he has been "allowed" to do so in
advance. Third, intersubjective action itself is conceived to occur "through" or "by virtue of' the "exercise" of these rights. The behavior of
the bank teller who handles my deposit is represented in legal thought as resulting from or occurring as a consequence of the simultaneous
exercise of a great many rights, including the right to perform certain functions as a bank employee (receiving money), the right to free speech
(choice of words, gestures, and clothing), and perhaps even the right to seniority (if, because of the length of her employment, she is a teller
instead of someone else). Seen as a whole, therefore, the
"world" of this rights based schema is one in which originally
passive and disconnected individuals enter into relations with each other because they are allowed to,
relations which have the quality of being "okayed in advance" because they occur only insofar as one is
engaging in the right to do them. It may now be self-evident that this picture of the world is but an abstract
representation of our own alienated effort to distance ourselves from each other by representing our
false selves as our real selves, as "who we really are." In "making it the law" that individuals are to be conceived of as originally
passive and disconnected "empty vessels," we secure our effort to constrain the active movement toward connection that constitutes our true
togetherness by denying that this movement exists. By replacing this active movement of desire with what we might
call the "passive possibility" of "having rights," we place the immediacy of our lived experience in a kind
of suspended animation that conforms precisely to the delay-time that self-observation inserts into our as-if performances. In
equating "legal" action with being "allowed" to act on the basis of these rights, we make this self-
observation a legal requirement of social action itself, just as self-observation is an existential
characteristic of our alienated effort to be perpetually "on guard in advance" against the threat of
excessive self-revelation. Finally, by representing the movement of the intersubjective life-world as the working of a legal order in
which we interact through the "exercise" of these rights, we assert the legality of that quality in our as-if performances
that suggests action at a distance from itself, thus attributing to this quality an "advance legitimacy" that
is intended to make its illegitimacy invisible hidden.
Normative legal thought obscures the pain and death of disciplinary systems with
language games
It is at this point that the legal thinker recognizes that the value (if any) of normative legal thought does not depend so much on its relation to
the practices it seeks to describe or govern. It now becomes evident that the
value (if any) of normative legal thought
depends on a decentered economy of bureaucratic institutions and practices --such as those constituting and
traversing the law school, the organized bar, the courts--that define and represent their own operations, their own
character, their own performances, in the normative currency. Indeed, at this point, normative legal thought
takes on a completely different character. It becomes the mode of discourse by which bureaucratic
institutions and practices re-present themselves as subject to the rational ethical-moral control of
autonomous individuals (when indeed they are not), just as normative legal thought constructs us (you
and me) to think and act as if we were at the center --in charge, so to speak--of our own normative legal
thought (when indeed we are not). Normative *186 legal thought can no longer be seen to govern, regulate or even describe
human activity. In fact, as a further step in this degeneration/development, it now appears that it is very difficult to discern any significam
difference between normative legal thought and the operation, performance reproduction, and proliferation of bureaucratic practices and
institutions. The two collapse into each other. At this point, normative legal thought has become the operation, performance, reproduction, and
proliferation of bureaucratic practices and institutions. Normative legal thought is effective--very effective--but not in any way it imagines itself
to be. Its significance can no longer be in its specific prescriptions or conclusions (which are rarely adopted or even capable of being adopted).
Normative legal thought--this form of thought so concerned with producing normatively desirable
worldly effects-- has, ironically, become its own self-referential end. [FN52] And that end is coextensive with the operation,
performance, reproduction, and proliferation of bureaucratic practices and institutions. Welcome to the crash. My sense is that when legal
thinkers re-cognize that normative legal thought is an economy of self-refereatial instrumentalist
rhetorical structures run from elsewhere and gradually seeping themselves of meaning , both constative and
performative, playing this language game of normative legal thought will lose a great deal of its moral and
intellectual cachet. It is one thing to understand one's self as engaged in a normative enterprise aimed at
improving the moral or political or economic performance of the legal profession or the courts through
normative argument. It is quite another to understand one's self as a bureaucratic vehicle for the
proliferation of a mode of discourse (normative legal thought) that is coextensive with bureaucratic
practice and institutional inertia. As self-images go, my sense is that the latter is not really great. It is likely to lead to a certain
degree of disenchantment. And my sense is that the disenchantment of normative legal thought is already well on its way. [FN53] Now, one
reaction a normative legal thinker might have to all this is that it is all perfectly horrible --and that we
should all try to preserve our normative universe by using words more carefully and by arguing very morally
against instrumentalism and the instrumentalization of law (and so on). But *187 this argument misses the
point again. This is history--not dialogue among disembodied Cartesian selves. And it doesn't do much
good to make normative arguments against history--especially not if you keep misidentifying your own
addressee, your agent of change, your subject. Unfortunately, that is precisely what normative legal
thought keeps getting confused about. It keeps thinking that it is addressing some morally competent,
well-intentioned individual who has his [their] hands on the levers of power. [FN54] The pervasiveness of this
metaphysical confusion--its routine character within the legal academy-- is precisely what engenders the more socially situated confusions of
"liberal" and "progressive" legal academics as to whether or not the Warren Court is still sitting. [FN55] * * * All of this can seem very funny.
That's because it is very funny. It is also deadly serious. It is deadly serious, because all this normative
legal thought, as Robert Cover
explained, takes place in a field of pain and death . [FN56] And in a very real sense Cover was right. Yet as it takes place,
normative legal thought is playing language games-- utterly oblivious to the character of the language
games it plays, and thus, utterly uninterested in considering its own rhetorical and political contributions
(or lack thereof) to the field of pain and death. To be sure, normative legal thinkers are often genuinely concerned with
reducing the pain and the death. However, the problem is not what normative legal thinkers do with normative legal thought, but what
normative legal thought does with normative legal thinkers. What
is missing in normative legal thought is any serious
questioning, let alone tracing, of the relations that the practice, the rhetoric, the routine of normative
legal thought have (or do not have) to the field of pain and death . And there is a reason for that: Normative legal
thought misunderstands its own situation. Typically, normative legal thought understands itself to be
outside the field of pain and death and in charge of organizing and policing that field. It is as if the action of
normative legal thought could be separated from the background field of pain and death. This theatrical distinction is what allows normative
legal thought its own self-important, self-righteous, selfimage--its congratulatory sense of its own accomplishments and effectiveness. All this
self-congratulation works very nicely so long as normative legal *188 thought continues to imagine itself as outside the field of pain and death
and as having effects within that field. [FN57] Yet it is doubtful this image can be maintained. It is not so much the case that normative legal
thought has effects on the field of pain and death--at least not in the direct, originary way it imagines. Rather, it is more the case that
normative legal thought is the pattern, is the operation of the bureaucratic distribution and the
institutional allocation of the pain and the death. [FN58] And apart from the leftover ego-centered rationalist rhetoric of the
eighteenth century (and our routine), there is nothing at this point to suggest that we, as legal thinkers, are in control of normative legal
thought. The problem for us, as legal thinkers, is that the normative appeal of normative legal thought systematically turns us away from
recognizing that normative legal thought is grounded on an utterly unbelievable re-presentation of the field it claims to describe and regulate.
The problem for us is that normative legal thought, rather than assisting in the understanding of present
political and moral situations, stands in the way. It systematically reinscribes its own aesthetic--its own
fantastic understanding of the political and moral scene. [FN59] Until normative legal thought begins to deal with its own
paradoxical postmodern rhetorical situation, it will remain something of an irresponsible enterprise. In its rhetorical structure, it will
continue to populate the legal academic world with individual humanist subjects who think themselves
empowered Cartesian egos, but who are largely the manipulated constructions of bureaucratic
practices--academic and otherwise. [FN60]
The alternative is to create spaces beyond the grasp of bureaucratic institutions our
utopian ethic is key to breaking out of normative legal thought in the present
at American University in Washington, DC, Postanarchism: a politics of anti-politics (October 2011),
Journal of Political Ideologies, vol. 16 no. 3)
At the same time, this

aporetic moment of tension central to classical anarchism generates new and
productive articulations of politics and ethics. The disjunction between politics and anti-politics is what might be called an
inclusive disjunction: a compound in which one proposition is true only if its opposing proposition is also true. Politics, at least in a radical,
emancipatory sense, has only a consistent identity if an anti-political, indeed utopian, dimension is also presentotherwise it remains caught
within existing political frameworks and imaginaries. Conversely, anti-politics only makes sense if it takes seriously the tasks of politicsbuilding,
constructing, organizing, fighting, making collective decisions and so onwhere questions of power and exclusion inevitably emerge. However,
this proximity to power does not invalidate anarchism; rather, it leads to a greater sensitivity to the dangers of power and the need to invent, as
mentioned before, new micro-political practices of freedom through which power is subjected to an ongoing ethical interrogation. Where
the political pole imposes certain limits, the anti-political pole, by contrast, invokes an outside, a
movement beyond limits. It is the signification of the infinite, of the limitless horizon of possibilities. This
is both the moment of utopia and, in a different sense, the moment of ethics. Anarchism has an
important utopian dimension, even if the classical anarchists themselves claimed not to be utopians but materialists and rationalists.
Indeed, some utopian element whether acknowledged or not is an essential part of any form of radical
politics; to oppose the current order, one inevitably invokes an alternative, utopian imagination. However,
we should try to formulate a different approach to utopianism here: the importance of imagining an
alternative to the current order is not to lay down a precise programme for the future, but rather to
provide a point of exteriority as a way of interrogating the limits of this order. As Miguel Abensour puts it: Is it
not proper to utopia to propose a new way of proceeding to a displacement of what is and what seems to go without saying in the crushing
name of reality?37 We are crushed under the weight of the current order, which tells us that this is our
reality, that what we have now is all there is and all there ever will be. Utopia provides an escape from
this stifling reality by imagining an alternative to it; it opens up different possibilities, new lines of flight.
Here, we should think about utopia in terms of action in the immediate sense, of creating alternatives
within the present, at localized points, rather than waiting for the revolution . Utopia is something that
emerges in political struggles themselves.38 Ethics also implies an outside to the existing order, but in a
different sense. Ethics, as I understand it here, involves the opening up of the existing political identities, practices, institutions and
discourses to an Other which is beyond their terms. Ethics is more than the application of moral and rational norms. It
is rather the continual disturbance of the sovereignty of these norms , and the identities and institutions
that draw their legitimacy from them, in the name of something that exceeds their grasp. Importantly, then,
ethics is what disturbs politics from the outside. This might be understood in the Levinasian sense of anarchy: Anarchy cannot be sovereign like
an arche. It can only disturb the Statebut in a radical way, making possible moments of negation without any affirmation.39 The point is,
however, that politics cannot do without anti-politics, and vice versa. The two must go together. There must always be an anti-political outside, a
utopian moment of rupture and excess that disturbs the limits of politics. The ethical moment cannot be eclipsed by the political dimension; nor
can it be separated from it, as someone like Carl Schmitt maintained.40 If there is to be a concept of the political, it can only be thought through
a certain constitutive tension with ethics. At the same time, anti-politics needs to be politically articulated; it needs to be put into action through
actual struggles and engagements with different forms of domination. There must be some way of politically measuring the anti-political
imaginery, through victories, defeats, and strategic gains and reversals. So while anti-politics points to a transcendence of the current order, it
cannot be an escape from it; it must involve an encounter with its limits, and this is where politics comes in. The transcendence of power
involves an active engagement with power, not an avoidance of it; the realization of freedom requires an ongoing elaboration of new practices
of freedom within the context of power relations.
2NC---Top Shelf
2NC---FW
Normative legal thought is self-effacing breaking out of the routine is key
If there's no one in charge at the other end of the line, why then is normative legal thought in such a
hurry to get its message across? [FN33] And why, particularly, is it always in such a hurry to repeat the same old boring moves?
There is an edge to these questions. And the edge comes in part from our implicit assumption that normative legal thought is a kind of thought
and that, as thought, it is in control of its own situation, its own form, its own rhetoric. But it isn't so. If
normative legal thought
keeps repeating itself, and if it is incapable of understanding challenges to its own intellectual authority,
that is because it is not simply or even fundamentally a kind of thought. Normative legal thought is in
part a routine--our routine. It is the highly repetitive, cognitively entrenched, institutionally sanctioned, and
politically enforced routine of the legal academy --a routine that silently produces our thoughts and
keeps our work channeled within the same old cognitive and rhetorical matrices. [FN34] Like most
routines, it has been so well internalized *180 that we repeat it automatically, without thinking. And like
most routines, it remains unseen and unobserved--which is why it is so powerful. [FN35] It is an aspect--a significant aspect--of the unnoticed
and untroubled overarching epistemic economy within which (virtually) all contemporary legal thought is produced. In terms somewhat
misleading but more familiar to legal thinkers, normative legal thought is the latest incarnation of the Langdellian legacy, the latest variation on
formalism [FN36]-- normative formalism. [FN37] Normative
legal thought, of course, does not consider itself a
formalist enterprise. [FN38] And from the normative perspective, indeed, it is not. From the normative
perspective, the formalist character of normative thought is not visible . [FN39] The very form within which normative
legal thought represents *181 the world prevents it from recognizing its own formalism. Normative formalism, like other formalisms, is its own
best self-defense. It is its own best self-defense in the sense that whenever normative legal thought is intellectually challenged, it unconsciously
re-establishes in the very form of the intellectual struggle, its own fundamental understanding of the agenda, the issues, the legitimate forms of
argumentation, the criteria of failure and success, and so on. [FN40] Selfdefense, of course, is what disciplinary solipsism is all about. [FN41]
Admittedly, as solipsistic enterprises go, normative legal thought is pretty nice--or at least, it looks pretty nice. For instance, it's
really nice
to think that we are all self-directing, coherent, integrated, rational, originary selves who are engaged in
a rational conversation in which we aim to resolve disagreement by resort to normative dialogue. It's
really nice to think that our political disagreements turn upon our own self-conscious commitments to
different "values." It's nice to think that law and politics can be subservient to a grand conversation
about who we think we should become. It is all very nice. It is also absolutely unbelievable. What is more, the
unbelievable character of normative legal thought is becoming increasingly *182 evident. And as legal thinkers become increasingly aware of
the fantastic character of normative legal thought, the enchantment of normative legal thought weakens and withers. Here, I'm just trying to
help this disenchantment process along.
Their dismissive response is characteristic of disciplinary thinking

[FN41]. This is why if one seeks to disrupt a disciplinary formalism -- normative or otherwise--one cannot
simply argue "politely" against it. "Polite" argument is precluded because the very protocol of
disciplinary engagement is always already rigged . It has to to be: It wouldn't be a discipline if its very
form were not already structured so as to preserve the discipline and to derail subversive lines of inquiry.
What distinguishes disciplines from mere points of view, sets of ideas, or assortments of theories is that disciplines are linguistically, cognitively,
and institutionally entrenched. Disciplines achieve security from challenge by constituting the very self of the
disciplinary thinker as a series of rhetorical, cognitive, psychological defenses against troublesome or
subversive lines of inquiry. To master or even participate in a discipline is not just to learn an assortment of ideas,
techniques, authorities, etc. It is to become a certain kind of thinker, and hence, a certain kind of person. When a
discipline is then challenged (as it is here) disciplinary thinkers are very likely to experience this challenge as
an attack on the self--their selves. It is thus not surprising that when disciplinary thinkers are confronted with
challenges to their discipline, they react personally and dismissively. They experience challenges as "a way of fighting
over whether our lives have been wasted." Calvin Trillin, A Reporter at Large: Harvard Law, NEW YORKER, Mar. 26, 1984, at 53, 83 (quoting a
Harvard Law School professor).
2NC---AT: Perm
The perms focus on normative action forecloses self-reflexivity, sanctions violence
So much for the top ten of normative legal thought in the eighties. Now you may have noticed that there are only five entries in the top ten.
That is because the rhetorical situation of normative legal thought is even more desperate than I had initially imagined. To be sure, one could
add other entries to the list, but then the redundancy quotient would rise intolerably and things would become rather repetitive and boring. But
then again, that is precisely one of my points. And there is no point in overdoing it--normative legal thought is overdoing it all
by itself, getting more repetitive all the time, asking "What should we do? What should the law be? What
do you propose?" over and over again. In fact, even as you read and even as I write, normative legal
thought is busy urging us (you and me) to ask these very same questions of this very essay at this very
moment. "What should we do? What's the point?" asks normative legal thought. "If normative legal
thought isn't going anywhere, what should we do instead?" "What do you propose?" "What's the
solution?" These familiar questions are usually asked in searching, serious, somber tones. There is no trace of irony in their articulation--no
self-consciousness at all. It is as if the intellectual legitimacy, the political import, of the questions were
themselves self-evident, beyond question. [FN27] "Yes, yes--but what should we do? How do these
observations help?" Usually, the questions are asked with such earnest, self-assured self-certainty that it is
as if the body of knowledge that enables the questions to be stated in the first place were somehow
outside the problem, outside the difficulty--already intellectually whole, already politically competent to
provide the answers. [FN28] *178 "Right, right, but the question is, what should we do with all this?" Now
you'll notice that here the "What should we do?" is an interruption . It is an interruption posing as an origin. It
poses as an origin in that it takes itself to be the original motivation for engaging in legal thought. [FN29] And yet
here, the "What should we do?" interrupts the process of trying to understand what enterprise we , as
legal thinkers, are already engaged in. It interrupts the process of attempting to reveal the character of
our disciplines and our practices as legal thinkers. "O.K., O.K., but how would such revelations help us
decide what we should do?" You'll notice that here (as elsewhere) normative legal thought has a very pressing and urgent tone. It
wants to know right away what should be done. Right away. And true to its name, normative legal thought wants to
engage right away in the enterprise of norm-selection. Normative legal thought wants to decide as
quickly as possible which norm (which doctrine, which rule, which theory) should govern a particular
activity. Now as intellectually stifling and politically narrow as the enterprise of norm-selection may be, [FN30] it still offers legal thinkers
some residual possibility of posing interesting philosophical, social, psychological, economic, or semiotic inquiries about law. Yet normative
legal thought can't wait to shut down these intellectual and political openings as well. It cannot wait to
envelop these inquiries in its own highly stylized ethical-moral form of norm-justification. Normative
legal thought cannot wait to enlist epistemology, semiotics, social theory or any other enterprise in its
own ethical-moral argument structures about the right, the good, the useful, the efficient (or any of their
doctrinally crystallized derivatives). It cannot wait to reduce world views, attitudes, demonstrations, provocations,
and thought itself, to norms. In short, it cannot wait to tell you (or somebody else) what to do. In fact,
normative legal thought is so much in a hurry that it will tell you what to do even though there is not the
slightest chance that you might actually be in a position to do it. For instance, when was the last time you
were in a position to put the difference principle [FN31] into effect, or to restructure *179 the doctrinal
corpus of the first amendment? "In the future, we should . . . . " When was the last time you were in a position to rule whether
judges should become pragmatists, efficiency purveyors, civic republicans, or Hercules surrogates? Normative legal thought doesn't
seem overly concerned with such worldly questions about the character and the effectiveness of its
own discourse. It just goes along and proposes, recommends, prescribes, solves, and resolves. Yet despite its obvious desire to have
worldly effects, worldly consequences, normative legal thought remains seemingly unconcerned that for all practical purposes, its only
consumers are legal academics and perhaps a few law students--persons who are virtually never in a position to put any of its wonderful
normative advice into effect. [FN32]
Systemic critique is a better method than reactive surveillance reform only radical
restructuring can re-vitalize democracy the plan is a single-issue movement that
siphons off energy from the collective struggle
Giroux 14 (Henry, Prof of Cultural Studies @ McMaster University, TOTALITARIAN PARANOIA IN THE
POST-ORWELLIAN SURVEILLANCE STATE, http://philosophersforchange.org/2014/02/18/totalitarian-
paranoia-in-the-post-orwellian-surveillance-state/)
Nothing will change unless the left and progressives take seriously the subjective underpinnings of
oppression in the United States. The power of the imagination, dissent, and the willingness to hold power accountable
constitute a major threat to authoritarian regimes . Snowdens disclosures made clear that the authoritarian state is deeply fearful of
those intellectuals, critics, journalists and others who dare to question authority, expose the crimes of corrupt politicians and question the carcinogenic nature of a
corporate state that has hijacked democracy: This is most evident in the insults and patriotic gore heaped on Manning and Snowden. How else to explain, in light of
Snowdens initial disclosures about the NSA, the concern on the part of government and intelligence agencies that his disclosures have renewed a longstanding
concern: that young Internet aficionados whose skills the agencies need for counterterrorism and cyber defense sometimes bring an anti-authority spirit that does
not fit the security bureaucracy.[81] Joel F. Brenner, a former inspector general of the NSA made it very clear that the real challenge Snowden revealed was to make
sure that a generation of young people were not taught to think critically or question authority. As Brenner put it, young people who were brought into the national
security apparatus were not only selling their brains but also their consciences. In other words, they have to adjust to the culture by endorsing a regime of one that
just happened to be engaging in a range of illegalities that threatened the foundations of democracy.[82] What is clear is that the corporate-
security state provides an honorable place for intellectuals who are willing to live in a culture of
conformity. In this case as Arthur Koestler said some years ago, conformity becomes a form of betrayal which can be carried out with a clear conscience.[83]
At the same time, it imposes its wrath on those who reject subordinating their consciences to the dictates of authoritarian rule. If the first task of
resistance is to make dominant power clear by addressing critically and meaningfully the abuses
perpetrated by the corporate surveillance state and how such transgressions affect the daily lives of
people in different ways, the second step is to move from understanding and critique to the hard work of
building popular movements that integrate rather than get stuck and fixated in single-issue politics . The
left has been fragmented for too long, and the time has come to build national and international movements capable of dismantling the political, economic and
cultural architecture put in place by the new authoritarianism and its post-Orwellian surveillance industries. This is not a call to reject identity and special-issue
politics as much as it is a call to build broad-based alliances and movements, especially among workers, labor unions, educators, youth groups, artists, intellectuals,
students, the unemployed and others relegated, marginalized and harassed by the political and financial elite. At best, such groups should form a vigorous and
broad-based third party for the defense of public goods and the establishment of a radical democracy. This is not a call for a party based on traditional hierarchical
structures but a party consisting of a set of alliances among different groups that would democratically decide its tactics and strategies. Modern
history is
replete with such struggles, and the arch of that history has to be carried forward before it is too late. In a
time of tyranny, thoughtful and organized resistance is not a choice; it is a necessity. In the struggle to dismantle the authoritarian state, reform is only partially
acceptable. Surely, as Fred Branfman argues, rolling
back the surveillance state can take the form of fighting: to end bulk
collection of information; demand Congressional oversight; indict executive-branch officials when they
commit perjury; give Congress the capacity to genuinely oversee executive agency; provide strong
whistle-blower protection; and restructure the present system of classification .[84] These are important reforms
worth fighting for, but they do not go far enough. What is needed is a radical restructuring of our understanding
of democracy and what it means to bring it into being. The words of Zygmunt Bauman are useful in understanding what is at stake in such a struggle. He
writes: Democracy expresses itself in continuous and relentless critique of institutions; democracy is an anarchic, disruptive element inside the political system;
essential, as a force of dissent and change. One can best recognize a democratic society by its constant complaints that it is not democratic enough.[85] What
cannot be emphasized enough is that only through collective struggles can change take place against
modern-day authoritarianism. If the first order of authoritarianism is unchecked secrecy , the first
moment of resistance to such an order is widespread critical awareness of state and corporate power
and its threat to democracy, coupled with a desire for radical change rather than reformist corrections .
Democracy involves a sharing of political existence, an embrace of the commons and the demand for a future that cannot arrive quickly enough. In short, politics
needs a jump start, because democracy is much too important to be left to the whims, secrecy and power of
those who have turned the principles of self-government against themselves.
Their prescriptive framework proves the link recreates students as instruments of

bureaucracy
But don't worry--be normative. My bet is that when normative legal thought takes note of the crash , it will
argue against it . . . on normative grounds, of course. [FN62] The argument will be structured in terms of the
determination of the epistemic by the normative. [FN63] Or in simpler terms: "There is no crash . . .
because to acknowledge a crash (in law) would bring about *190 terrible social consequences, a loss of
meaning, etc. . . . Therefore, there can't be any crash. Therefore, there isn't any crash." Another winning
argument. This argument will likely be accompanied by great and moving efforts to revive normative legal thought through the teaching of
ethics and morality. [FN64] What else? Actually, one other thing. Normative legal thought, this local offshoot of liberal humanism, can be
expected to do its usual conservative collapse move, and to mourn, in a nostalgic sort of way, the passing of the normative world. "In the old
days, when people were moral . . . . " Now, other than these sorts of responses, I
think it would be unrealistic to expect
anything else of normative legal thought at present. Normative legal thought simply does not possess
the sort of cognitive or critical resources to recuperate from the crash. From the perspective of
normative legal thought, either the crash does not exist, or if it does, it is simply an unaccountable,
inexplicable intellectual and cultural catastrophe. Indeed, in static terms, the existing categories, the existing
grammar of normative legal thought, are utterly incapable of providing any sort of sophisticated account
for the crash. Viewed dynamically, normative legal thought could conceivably begin to apprehend the crash and respond. But, of course,
that's not where the energies of normative legal thought are dedicated. On the contrary. Normative legal thought, like liberal humanism more
generally, is spending (virtually) all of its intellectual and psychic resources fueling a denial of the crash. Liberal humanism and normative legal
thought are both very good at denial. [FN65] They ought to be. They are the routine. They are in place. They are institutionally and cognitively
embedded. By way of example, consider the scholarly exchanges among normative legal thinkers. They all differ
about all sorts of things. They differ about "important" issues such as what should be the appropriate mix of community, liberty,
freedom, equality, empowerment, efficiency, etc. And while normative legal thinkers differ about these "important" normative issues, there is
one thing that they all agree upon, over and over again . . . without even having to think about it. What they all agree
upon, in this implicit unexamined sort of way, is that they are all autonomous, rational, morally competent
individuals who are having a meaningful, important, and effective discussion about how society or some
subdivision thereof should be organized. This pleasant fantasy is harmless enough, except that it
reproduces legal academics and law students (and hence lawyers) in the image of humanist individual
subjects. This, too, is a harmless self-indulgence, except that it provides instrumentalist bureaucracies
with an absolutely marvelous and *191 captivating rhetoric that defines, organizes, routinizes, and
services their clientele. It's all really neat. 7-11 sells freedom (which you can find in their Slurpees). Pepsi brings you the downfall of the
Berlin Wall. And normative legal thought guides the development of the law.
2NC---AT: CLS Bad
Despite benefits of some litigation, liberal rights discourse ultimately places corporate
power over community welfare
Hardwick 91 (John, The Schism Between Minorities and the Critical Legal Studies Movement:
Requiem for a Heavyweight? (1991), Boston College Third World Law Journal vol. 11 no. 1)
The CLS responses undertake a pragmatic defense of the Movement's rights discourse critique. This
defense holds that premising liberal rights theory on the belief in the existence of fundamental, natural,
formalistic rights ignores the reality that liberal rights discourse developed first as a politically
recognized social construction and then became legitimate law through positive enactment. 136 The long
line of well-recognized social, political, and scientific movements contributing to the current version of liberal rights discourse illustrates this
developmental reality. From the philosophical writings of Descartes, through Marxism, the issues of the existence and utility of rights have
commanded considerable intellectual energy.137 Critical Legal Scholars acknowledge the value of victories in litigation
brought by rights discourse to minorities and other societally marginalized groups of people. 138 The
popular perception of liberal rights discourse incorrectly envisions it as a form of protection for
numerically large groups of people, such as social or class groupings (based upon class or race). But the
historical roots of the development of liberal rights discourse in this country, CLS argues, indicates
otherwise. These historical roots indicate that liberal rights discourse originated as a form of
protection for individual private property.139 The original framers of the liberal rights legal system established the system as
protection from the pitfalls of popular revolt. 140 To date, the law affords the benefits of collective rights only to
corporations based upon their special position in relation to the state in a capitalistic economy. 141
Arguably, minorities might obtain more direct benefit from the implementation of a form of group rights
or entitlements. As illustrated by CLS's deconstruction of the normative touchstones for contract law, legal rules derived from
principles of capitalism and liberalism provide little stability and predictive value to individual citizens. 142
For example, the judiciary's freedom to choose between private individual rights and the state's public interest creates instability and
indeterminacy. Also, in family law, courts decide between a parent's private right to family autonomy and the state's interest in the protection of
abused or neglected children. 143 In labor law, courts decide between "the private rights of association of labor unions" and the state interest in
restraining the union's unreasonable exercise of power over its members.144 CLS "condemns" judicial balancing tests because they reinforce
the existence of conflicting values and require a judge to choose between them without a normative theory of social justice. 145 Additionally,
CLS argues that rooting
rights discourse in an ideal more egalitarian and communitarian than the
competitively individualist liberal ideal better serves the interests of minorities and marginalized
groups.146 The courts' role as unanchored arbiter of those interests necessarily would be minimized. Thus,
a measure of stability and determinacy would be restored to decisions involving groups less powerful than the groups controlling the machinery
of the legal system. Subtextually, the Critical Legal Scholars respond to the CLS Movement's failure to address racism by providing exhaustive
historical references and sociological statistics documenting the pervasive existence of racism in society.147 The
role of racism in the
perpetuation of maldistributions of wealth and power is also explored. True to form, the CLS scholars
embark on this exploration using deconstruction . In particular, CLS trashes the theory of equality of
opportunity which, mainstream jurisprudence alleges, supports our economic system and democratic
form of government. 148 CLS exposes this notion as essentially an illusion. Popular perceptions hold that equal access is available to
public offices and employment positions-performance meritoriously determines which positions are attained, but each citizen has the
opportunity to compete. But in reality racial dichotomies in wealth and power determine access to positions in public office and private
business. Instead of ability, talent, and performance determining access, economic status typically bears the greatest determinative value. 149
Moreover, the current economic status of many minorities stems in part from historical, economic and
political discrimination fueled by racism. Thus, CLS argues, deconstruction of the ideological assumptions
underpinning the notion of equality of opportunity reveals inherent indeterminacy. The CLS scholars perform
further deconstruction on the notion of equality of opportunity by revealing the contradictions underlying the concepts of ability and talent.
They argue that "there is no such thing as a natural and objective 'talent' .... [S]uch skills are socially and historically contingent, the ones a
particular culture needs and wants in its time."15o The more distorted the power relations within a culture, the more likely that the powerful
will bear the valued talents. 151 This critique applies to heavy reliance by the academic community upon standardized test scores in evaluating
student performance. 152 The premise underlying the argument holds that the tests reward culturally and economically biased knowledge. 153
This bias segregates the testing population into the already crystallized cultural and economic hierarchies. 154 The declining emphasis upon
standardized test scores by academic institutions supports the flaws exposed by the CLS deconstruction. 155
2NC---Impacts
2NC---Impact Framing
Structural violence outweighs hypothetical future conflicts it lays the seeds for
environmental degradation and war---impact is extinction
Szentes 8 (Tams, Professor Emeritus at the Corvinus University of Budapest, and member of the
Hungarian Academy of Sciences, Globalisation and prospects of the world society
http://www.eadi.org/fileadmin/Documents/Events/exco/Glob.___prospects_-_jav..pdf)
*edited for offensive language
Its a common place that human society can survive and develop only in a lasting real peace. Without peace countries
cannot develop. Although since 1945 there has been no world war, but --numerous local wars took place, --terrorism has spread all over the
world, undermining security even in the most developed and powerful countries, -- arms race and militarisation have not ended
with the collapse of the Soviet bloc, but escalated and continued, extending also to weapons of mass destruction and misusing enormous
resources badly needed for development, --many invisible hidden wars are suffered by the poor and oppressed people,
manifested in mass misery, poverty, unemployment, homelessness, starvation and malnutrition, epidemics
and poor health conditions, exploitation and oppression, racial and other discrimination, physical terror,
organised injustice, disguised forms of violence, the denial or regular infringement of the democratic rights of citizens, women, youth,
ethnic or religious minorities, etc., and last but not least, in the degradation of human environment, which means that --the
war against Nature, i.e. the disturbance of ecological balance, wasteful management of natural resources, and large-scale
pollution of our environment, is still going on, causing also losses and fatal dangers for human life. Behind global terrorism and
invisible wars we find striking international and intrasociety inequities and distorted development
patterns , which tend to generate social as well as international tensions, thus paving the way for unrest
and visible obvious wars . It is a commonplace now that peace is not merely the absence of war. The prerequisites of a
lasting peace between and within societies involve not only - though, of course, necessarily - demilitarisation, but also a
systematic and gradual elimination of the roots of violence, of the causes of invisible hidden wars, of the
structural and institutional bases of large-scale international and intra-society inequalities, exploitation and
oppression. Peace requires a process of social and national emancipation, a progressive, democratic transformation of
societies and the world bringing about equal rights and opportunities for all people, sovereign participation and mutually advantageous co-
operation among nations. It further requires a pluralistic democracy on global level with an appropriate system of proportional representation
of the world society, articulation of diverse interests and their peaceful reconciliation, by non-violent conflict management, and thus also a
global governance with a really global institutional system. Under the contemporary conditions of accelerating globalisation and deepening
global interdependencies in our world, peace is indivisible in both time and space. It cannot exist if reduced to a period only after or before
war, and cannot be safeguarded in one part of the world when some others suffer visible or invisible
hidden wars. Thus, peace requires, indeed, a new, demilitarised and democratic world order, which can provide equal opportunities for
sustainable development. Sustainability of development (both on national and world level) is often interpreted as an issue of environmental
protection only and reduced to the need for preserving the ecological balance and delivering the next generations not a destroyed Nature with
overexhausted resources and polluted environment. However, no
ecological balance can be ensured, unless the deep
international development gap and intra-society inequalities are substantially reduced. Owing to global
interdependencies there may exist hardly any zero-sum-games, in which one can gain at the expense of others, but, instead, the negative-
sum-games tend to predominate, in which everybody must suffer, later or sooner, directly or indirectly, losses. Therefore, the actual
question is not about sustainability of development but rather about the sustainability of human life,
i.e. survival of [hu]mankind because of ecological imbalance and globalised terrorism. When Professor Louk de la Rive Box was the
president of EADI, one day we had an exchange of views on the state and future of development studies. We agreed that development studies
are not any more restricted to the case of underdeveloped countries, as the developed ones (as well as the former socialist countries) are also
facing development problems, such as those of structural and institutional (and even system-) transformation, requirements of changes in
development patterns, and concerns about natural environment. While all these are true, today I would dare say that besides (or even instead
of) development studies we must speak about and make survival studies. While the monetary, financial, and debt crises are cyclical, we
live in an almost permanent crisis of the world society, which is multidimensional in nature, involving not only economic but also
socio-psychological, behavioural, cultural and political aspects. The narrow-minded, election-oriented, selfish behaviour
motivated by thirst for power and wealth, which still characterise the political leadership almost all over the world, paves the
way for the final, last catastrophe. One cannot doubt, of course, that great many positive historical changes have also taken place in
the world in the last century. Such as decolonisation, transformation of socio-economic systems, democratisation of political life in some former
fascist or authoritarian states, institutionalisation of welfare policies in several countries, rise of international organisations and new forums for
negotiations, conflict management and cooperation, institutionalisation of international assistance programmes by multilateral agencies,
codification of human rights, and rights of sovereignty and democracy also on international level, collapse of the militarised Soviet bloc and
system-change3 in the countries concerned, the end of cold war, etc., to mention only a few. Nevertheless, the crisis of the world society has
extended and deepened, approaching to a point of bifurcation that necessarily puts an end to the present tendencies, either by the final
catastrophe or a common solution. Under the circumstances provided by rapidly progressing science and
technological revolutions, human society cannot survive unless such profound intra-society and
international inequalities prevailing today are soon eliminated. Like a single spacecraft, the Earth can no longer
afford to have a 'crew' divided into two parts: the rich, privileged, wellfed, well-educated, on the one hand, and the
poor, deprived, starving, sick and uneducated, on the other. Dangerous 'zero-sum-games' (which mostly prove to be negative-sum-
games) can hardly be played any more by visible or invisible wars in the world society. Because of global interdependencies, the apparent
winner becomes also a loser. The real choice for the world society is between negative- and positive-sum-games: i.e. between, on the one hand,
continuation of visible and invisible wars, as long as this is possible at all, and, on the other, transformation of the world order by
demilitarisation and democratization. No ideological or terminological camouflage can conceal this real dilemma any more, which is to be faced
not in the distant future, by the next generations, but in the coming years, because of global terrorism soon having nuclear and other mass
destructive weapons, and also due to irreversible changes in natural environment.
2NC---Turns Case
Collective indiscipline is crucial to resisting surveillance their reformist focus leaves
the states security logic intact---means the aff doesnt solve
at American University in Washington, DC, Politics of Postanarchism (2010), Edinburgh University
Press, pp. 170-173)
Radical politics is nevertheless confronted today by formidable forms of power. As if in anticipation of future insurgencies, the power of the
state has exponentially increased in recent years. Securitisation
becomes the dominant paradigm of the state; the
matrix for an unprecedented deployment of strategies and technologies of control, surveillance and pre-
emption, and for a permanent war-like mobilisation. The continual blurring of different forms of dissidence and protest into
the idea of a threat to state security climate change and anti-war protestors and activists being arrested under anti-terrorist powers, for
example suggests that the so-called war on terrorism has as its target all those who dissent from the state-capitalist order. At the same time,
however, we should see this logic of securitisation and exception as a reaction to a certain crisis in the symbolic order of the nation-state under
conditions of capitalist globalisation. The nation-state as the container of sovereignty is less certain; its boundaries and identity are less clearly
delineated. Security, therefore, becomes a way for sovereignty to re-articulate itself in this more fluid global order. Through mechanisms of
security, state power spills out beyond its own borders, constructing networks of surveillance, incarceration, control and war making that are no
longer strictly determined by national boundaries. Prisons that are not prisons but camps, wars are no longer wars but policing operations;
global networks of surveillance and informationsharing we are in the midst of, as Agamben would put it, a zone of indistinction, 3 in which
national sovereignty blurs into global security while at the same time reifying and fetishising existing borders, and erecting new ones
everywhere. These developments open up two important sites for contestation. First, the logic of security itself, which has
become so ubiquitous and omnipresent today, has to be seen as mechanism of de-politicisation: it is way
of imposing a certain order on social reality which is selflegitimising and beyond question; it is an
ideology that authorises the infinite accumulation of state power . 4 Moreover, as Foucault showed, the
idea of security as it functioned in liberal discourses of government in the eighteenth century has become coextensive with
the idea of freedom itself. 5 Today we have come to think of freedom only as strictly circumscribed by
security; freedom and security become part of a binary, in which the former cannot be imagined without
the latter, and in which the former always gives way to the exigencies and prerogatives imposed by the
latter. The liberal idea of an appropriate balance between security and liberty is an illusion . The only vision
the security paradigm offers us with its pernicious technologies and its perverse logic which grips us in a double bind is an empty, controlled,
over-exposed landscape from which all hope of emancipation has faded, and where all we have left to do is obsessively measure the risks posed
to our lives from the ever-present spectre of catastrophe. The security paradigm intensifies a micro-politics of fear, producing a kind of
generalised neurosis. 6 It
is against this state fantasy of security, and the affect of fear and despair that it produces, that
radical politics must stake out its ground. It must reassert the hope of emancipation and affirm the risk
of politics. This involves more than clawing back lost liberties , but rather inventing a new language of
freedom that is no longer conditioned by security. Freedom must be discovered beyond security, and this
can be achieved only through practices of political contestation , through forms of resistance, through
modes of collective indiscipline and disobedience. For instance, the refusal and subversion of
surveillance, and even the surveillance of surveillance , 7 become part of a new language of resistance
that expresses the desire for a life that no longer seeks to be secured. Secondly, the question of borders emerges as
one of the focal points for radical political struggles today. The symbolic crisis of the nationstate leads not to the erosion of borders but rather to
their mobility, fluidity and ubiquity. Rather than the border disappearing, it appears everywhere, both internally and externally, intersecting with
a vicious racist and anti-immigrant politics. Balibar refers to the polysemic and heterogeneous nature of borders: the fact that borders are
experienced in different ways by different people, depending on race, nationality, social class and so on; and the fact that some borders are no
longer situated at the borders at all, in the geographical-politico-administrative sense of the term. 8 Here we might think of off-shore detention
sites and processing centres for illegal migrants: localities, heterotopias of domination which find their strange counterpart in internalised
borders gated communities with elaborate security systems, or police blockades and security cordons at demonstrations; or the
deterritorialised European border control and surveillance zones authorised by the Schengen Convention, borders which can be arbitrarily
tightened or relaxed. Indeed, the border symbolised by the infamous Israeli security fence or the wall being constructed along the US
Mexico border has become the most striking feature of a global order that claims to be about the free circulation of goods and people.
However, it is in contesting and disrupting these border control measures, in opposing practices of detention, or in fighting for the rights of
illegal migrants, that various activist groups and networks such as No Borders have highlighted this central contradiction and potential fault line
in global state capitalism. Power today consists in the control and surveillance of movement both internally and externally and the
mobilisation of borders. By asserting the right to move, to cross borders and territories freely, activist groups attempt to disrupt this deployment
of power, thus calling into question the very sovereignty of the state. Moreover, the
figure of the refugee (or illegal migrant)
the figure whom Arendt described as not even having the right to have rights because he does [they do] not
belong to the political order of the state embodies, I would argue, without wanting to diminish the extent of his or her
suffering and vulnerability, alternative sites of politics; the possibility of a new postnational space from which
radical demands can be made, and in which new collective political identities can be constructed. 9 These
various forms of power, and the struggles that have emerged against them, take place on the threshold
of biopolitics. Without wanting to entirely buy into Hardts and Negris thesis about the total subsumption of life by capitalism, it is
nevertheless apparent that the control, regulation and manipulation of life itself, down to its biological substratum, is and has been for some
time the ultimate horizon of the state and capitalism. The conception of life as an organism whose desires are predictable and biologically
determined, whose unseen dreams and dangerous pathologies can be gazed upon and whose behaviours can be controlled and manipulated
through the application of biomedical and surveillance technologies has become the overwhelming fantasy of our time. 10 Moreover, as
Roberto Esposito argues, biopolitics can be understood only through a paradigm of immunisation, in which, just as the biological organism
seeks to protect itself from contaminants, the political body seeks to secure itself against the outsiders that threaten its integrity 11
accounting for the proliferation of figures of the enemy today, whether it be the terrorist, Muslim, illegal immigrant or criminal. Radical
politics today must come to terms with this logic of biopolitics and immunisation, and find ways of
contesting its terms and coordinates. At the end of his lecture series Society must be Defended, in which he explores the genesis
of biopower in the eighteenth century, showing how it intersected with eugenics, biologism and state racism in the nineteenth and twentieth
centuries, Foucault charges (albeit somewhat unfairly) the socialist tradition including anarchism with a neglect of the problem of biopolitics
and, thus, a hidden complicity with discourses of racism. 12 What might, then, an anarchist critique of biopolitics be? To formulate a conception
of political community that does not seek to immunise itself against the other; and to invent modes of life and practices of freedom that are
unpredictable and, thus, are resistant to discipline, remain the central problems for radical politics. Despite its early scientism a scientism that
was never, in any case, as absolute as that of Marxism I would say that anarchism, with its focus on liberty and equality beyond the state, on
its ethical, even spiritual dimension, 13 is best equipped to formulate notions of politics and subjectivity that exceed the grasp of biopolitics.
2NC---Turns Case---Rights Affs
Seeking rights through legal reform ultimately increases surveillance
Smart 89 (Carol, feminist sociologist and academic at the University of Manchester. Feminism and the
Power of Law (1989), Routledge)
The second issue was more difficult. Clearly the court had not given prior authorization for the payment to Mrs B which, under the Adoption
Act, would have been the only way that such a financial exchange could have been condoned. So the judge argued that the courts had the
power to give this authorization retrospectively. It was, however, only possible to construct this argument by reference to a criterion outside the
coherence of the strict legal parameters of the case. This criterion was the best interests of the child. This criterion has been used in cases
involving children, especially divorce cases where custody has been disputed, since the nineteenth century in the UK (see Brophy 1985). As
Thery (1986) has argued, the judiciarys use of this criterion has been criticized on the basis that it is an empty concept, that it merely disguises
support for the patriarchal order, and that it is an irrelevance because the courts merely rubber stamp agreements made by parents. However, I
am less concerned with these issues here than with the resort to an undeniably non-legal criterion in the
construction of a legal judgement. The history of the idea of children as a specific category of persons with special needs has been
traced (Aris 1979) and it is clearly part of the growth of the human sciences especially biology, medicine, and the psy professions. As
statute law extended itself more and more to cover family matters and children (e.g. legislation covering child
labour, divorce, domestic violence, age of marriage and consent) so it encroached upon those areas of special concern to
the emergent psy professions. It is not correct to depict this historical development in terms of law
being challenged by the new discourses; rather law attempts to extend its sovereignty over areas
constructed by the discourses of the human sciences as significant to the disciplining of the social body.
But law extended its legitimacy by embracing the objects of this discourse. For example, as the medical
profession constructed homosexuality as a perversion ultimately in need of treatment, so the law
extended its powers over homosexual activity. As children were identified as a special category of great
importance to the regulation of populations (through proper socialization, education, health matters, etc.) so the law
extended its protection of children by introducing legislation on the age of consent, procurement,
incest, and so on. So we can see a form of cooperation rather than conflict and a process by which law extends its
influence into more and more personal or private areas of life. In this respect law is most definitely
exercising a mode of disciplinary regulation. With each of these moves law incorporated the terms of the
discourses of the human sciences and, I would argue, extended its exercise of power to include the new
technologies identified by Foucault. Hence law retains its old power, namely the ability to extend rights, whilst
exercising new contrivances of power in the form of surveillance and modes of discipline.
Legal rights can only be secured through increased surveillance and regulation
Smart 89 (Carol, feminist sociologist and academic at the University of Manchester. Feminism and the
Power of Law (1989), Routledge)
There are less dramatic examples of juridogenesis. Even the growth of rights and rights claims can be seen to fit into this analysis. As outlined in
Chapter Seven, thegrowth of legal rights which can be claimed from the state has induced the concomitant
growth of individual regulation. Hence rights can be claimed only if the claimant fits the category of
persons to whom the rights have been conceded. Hence the state must have a detailed knowledge of
each individual in terms of marital status, employment status, citizenship status, age, sex, legitimacy,
contributions records, and so on. In order to claim rights the individual must fit into the specified
categories; the rights are not basic rights but formal rights and conformity to specification is a prerequisite for exercising such rights. The
extension of rights has therefore been linked to the growth of the technology of the disciplinary
society. More rights come at the cost of the potential for greater surveillance and greater conformity and
the claim for new rights brings about the possibility of new forms of regulation. For example the possible creation
of legal rights in relation to frozen embryos or in relation to human gametes also creates the possibility of widespread genetic fingerprinting.
Such measures are part of the juridogenic nature of legal remedies.
2NC---Satellite Neolib Impact
Legalism itself is a form of surveillance that constrains the working class and condones
neoliberalism
Shantz 12 (Jeffery, faculty member in the Department of Criminology at Kwantlen Polytechnic
University. Learning to Win: Anarchist Infrastructures of Resistance (2012), Anarchist Pedagogies:
Collective Actions, Theories, and Critical Reflections on Education, ed. Robert H. Haworth, PM Press)
This has meant that over

the past few decades working-class opposition in North America has been contained
largely within official, typically legalistic channels. Most common among these have been established bargaining and
grievance procedures via union representatives in economic ma6ers. This has been accompanied by a containment of political action within the
official channels of party politics and elections. Indeed the separation between economic and political spheres (and the relegation of unions to
the limited terrain of economic management) is a reflection, and result of, the collapse of infrastructures of resistance that expressed the
connections, even unity, of economic and political action, and the need for organizations that recognized the connections between struggles in
these areas. Activities
such as occupations, blockades, wildcat strikes, and sabotage have been dismissed or
diminished within unionized workplaces in which unions act as a level of surveillance and regulation of
workers, attempting to contain their actions within the framework of contracts with employers. Indeed the
main role of the unions became supervision of the contract during periods between bargaining and symbolic mobilization to support official
union negotiations during legal bargaining. Rank-and-file militants have faced disciplinary actions, lack of support, or outright shunning by union
officials. Contracts include provisions that prohibit wildcats, as agreed to by the union representatives. In Canada, the institutionalization of
unions as economic managers has been accompanied by the institutionalization of working-class politics within electoral politics in campaigns of
the New Democratic Party federally and provincially, at national and local levels. Politics has
been reduced to party campaigns
and lobbying for legislative reform as proposed and channeled through NDP caucuses (Shantz, 2009b). In the
current period these institutional pressures and habits have constrained working-class responses to
structural transformations of neoliberalism and economic crisis. Unions have sought to limit losses rather than make
gains. The approach has been to negotiate severance deals that limit the harm done to former employees (and members) rather than contest
the rights of employers and governments to determine the future of workplaces and workers livelihoods. Thesearrangements have
also engendered a certain faith in or reliance upon the system among the working classes. Rather than seeking
new relations, a new society, the institutions of the working class presented and replayed the message
that working-class desires and needs could not only be met within capitalist society, but, even more, depended upon
capitalism for their realization. Such a notion played into the trickle-down fantasies of neoliberal
Reaganomics, which insisted that policies and practices that benefited business should be pursued as some of the gains made by capital
would eventually find their way to the working class and the poor. Such was the justification for the massive multi-million-
dollar bailouts handed to corporations as part of the economic crisis of 2008 and 2009.
Neoliberalism guarantees extinction and social crisis

Molisa 14 (Pala Basil Mera, Philosophy PhD, Accounting For Apocalypse Re-Thinking Social Accounting
Theory And Practice For Our Time Of Social Crises And Ecological Collapse,
http://researcharchive.vuw.ac.nz/xmlui/bitstream/handle/10063/3686/thesis.pdf?sequence=2)
Ecologically too, the situation is dire. Of the many measures of ecological well-being topsoil loss, groundwater depletion,
chemical contamination, increased toxicity levels in human beings, the number and size of dead zones in the Earths oceans, and the
accelerating rate of species extinction and loss of biodiversity the increasing evidence suggests that the developmental trajectory of the dominant
economic culture necessarily causes the mass extermination of non-human communities, the systemic destruction and disruption of natural
habitats, and could ultimately cause catastrophic destruction of the biosphere. The latest Global Environmental Outlook Report
published by the United Nations Environment Program (UNEP), the GEO-5 report, makes for sobering reading. As in earlier reports, the global trends portrayed are of
continuing human population growth, expanding economic growth,6 and as a consequence severe forms of ecological degradation (UNEP, 2012; see also, UNEP,
1997, 1999, 2002, 2007). Theecological reality described is of ecological drawdown (deforestation, over-fishing,
water extraction, etc.) (UNEP, 2012, pp. 72, 68, 84, 102-106, ); increasing toxicity of the environment through chemical and waste pollution, with severe
harm caused to human and non-human communities alike (pp. 173- 179); systematic habitat destruction (pp. 8, 68-84) and climate change (33-
60), which have decimated the number of species on Earth, threatening many with outright extinction (pp. 139-158). The
most serious ecological threat on a global scale is climate disruption, caused by the emission of greenhouse gases from burning fossil fuels, other industrial activities,
and land destruction (UNEP, 2012, p. 32). The GEO-5 report states that [d]espite attempts to develop low-carbon economies in a number of countries, atmospheric
concentrations of greenhouse gases continue to increase to levels likely to push global temperatures beyond the internationally agreed limit of 2 C above the pre-
industrial average temperature (UNEP, 2012, p. 32). Concentrations of atmospheric methane have more than doubled from preindustrial levels, reaching
approximately 1826 ppb in 2012; the scientific consensus is that this increase is very likely due predominantly to agriculture and fossil fuel use (IPCC, 2007).
Scientists warn that the Earths ecosystems are nearing catastrophic tipping points that will be marked by mass
extinctions and unpredictable changes on a scale unseen since the glaciers retreated twelve thousand years ago (Pappas, 2012). Twenty-two
eminent scientists warned recently in the journal, Nature, that humans are likely to have triggered a planetary-scale critical transition with the potential to
transform Earth rapidly and irreversibly into a state unknown in human experience, which means that the biological resources we take for granted at present may
be subject to rapid and unpredictable transformations within a few human generations (Barnofsky et al., 2012). This means that human beings are in serious
trouble, not only in the future, but right now. The pre-industrial level of carbon dioxide concentration was about 280 parts per million (ppm). The Intergovernmental
Panel on Climate Change (IPCC) estimates concentrations could reach between 541 and 970 ppm by the year 2100. However, many climate scientists consider that
levels should be kept below 350 ppm in order to avoid irreversible catastrophic effects (Hansen et al., 2008). Catastrophic warming of the earth would
mean a planet that is too hot for life that is, any life, and all life (Mrasek, 2008). We need to analyze the above information and ask the
simple questions: what does it signify and where will it lead? In terms of the social crises of inequalities, the pattern of human development suggests clearly that
although capitalism is capable of raising the economic productivity of many countries as well as international trade, it also
produces social injustices on a global scale. The trajectory of capitalist economic development that people appear locked
into is of perpetual growth that also produces significant human and social suffering. In terms of the ecological situation,
the mounting evidence from reports, such as those published by UNEP, suggest that a full-scale ecocide will eventuate and that a global holocaust
is in progress which is socially pathological and biocidal in its scope (UNEP, 2012; see also, UNEP, 1997, 1999, 2002, 2007). Assuming the trends do not change, the
endpoint of this trajectory of perpetual economic growth, ecological degradation, systemic pollution, mass species extinction and runaway climate
change, which human beings appear locked into, will be climate apocalypse and complete biotic collapse. Given the serious and life-threatening
implications of these social and ecological crises outlined above, it would be reasonable to expect they should be central to academic concerns, particularly given the
responsibilities of academics as intellectuals. As the people whom society subsidizes to carry out intellectual work,7 the primary task of academics is to carry out
research that might enable people to deepen their understanding of how the world operates, ideally towards the goal of shaping a world that is more consistent
with moral and political principles, and the collective self-interest (Jensen, 2013, p. 43). Given that most peoples stated philosophical and theological
systems are rooted in concepts of justice, equality and the inherent dignity of all people (Jensen, 2007, p. 30), intellectuals have a
particular responsibility to call attention to those social patterns of inequality which appear to be violations
of such principles, and to call attention to the destructive ecological patterns that threaten individual and collective well-being. As a critic and conscience
of society, 8 one task of intellectuals is to identify issues that people should all pay attention to, even when indeed, especially when people
would rather ignore the issues (Jensen, 2013, p. 5). In view of this, intellectuals today should be focusing attention on the hard-to-face realities of
an unjust and unsustainable world. Moreover, intellectuals in a democratic society, as its critic and conscience, should serve as sources of independent and critical
information, analyses and varied opinions, in an endeavour to provide a meaningful role in the formation of public policy (Jensen, 2013c). In order to fulfil this
obligation as critic and conscience, intellectuals
need to be willing to critique not only particular people, organizations, and policies, but
also the systems from which they emerge . In other words, intellectuals have to be willing to engage in radical critique. Generally, the term
radical tends to suggest images of extremes, danger, violence, and people eager to tear things down (Jensen, 2007, p. 29). Radical, however, has a more classical
meaning. It comes from the Latin radix, meaning root. Radical critique in this light means critique or analysis that gets to the root of the problem. Given that
the patterns of social inequality and ecocidal destruction outlined above are not the product of a vacuum, but instead are the
product of social systems, radical critique simply means forms of social analysis , which are not only concerned about these social
and ecological injustices but also trace them to the social systems from which they emerged, which would subject these very
systems to searching critiques. Such searching critique is challenging because, generally, the dominant groups which tend to
subsidize intellectuals (universities, think tanks, government, corporations) are the key agents of the social systems that
produce inequalities and destroy ecosystems (Jensen, 2013, p. 12). The more intellectuals choose not only to
identify patterns but also highlight the pathological systems from which they emerge , the greater the
tension with whoever pay[s] the bills (ibid.). However, this may arguably be unavoidable today, given that the realities of social inequality
and ecological catastrophe show clearly that our social systems are already in crisis, are pathological, and in need of radical change.9 To adopt a radical position,
in this light, is not to suggest that we simply need to abolish capitalism, or to imply that if we did so all our problems would be solved. For one thing, such an abstract
argument has little operational purchase in terms of specifying how to go about struggling for change. For another thing, as this thesis will discuss, capitalism is not
the only social system that we ought to be interrogating as an important systemic driver of social and ecological crises. Moreover, to adopt a radical
position does not mean that we have any viable answers or solutions in terms of the alternative
institutions, organizations and social systems that we could replace the existing ones with. There is currently no alternative to
capitalism that appears to be viable, particularly given the historical loss of credibility that Marxism and socialism has suffered. As history has shown, some of
the self-proclaimed socialist and communist regimes have had their own fair share of human rights abuses and environmental disasters, and the global left has thus
far not been able to articulate alternatives that have managed to capture the allegiances of the mainstream population. Furthermore, giventhe depth,
complexity, and scale of contemporary social and ecological crises, I am not sure if there are any viable
alternatives or, for that matter, any guarantees that we can actually prevent and change the disastrous course of contemporary society. I certainly do not have
any solutions. What I would argue, however, is that if we are to have any chance of not only ameliorating but also
substantively addressing these social and ecological problems, before we can talk about alternatives or
potential solutions, we first need to develop a clear understanding of the problems . And, as argued above,
this involves, amongst other things, exploring why and how the existing social systems under which we live are
producing the patterns of social inequality and ecological unsustainability that make up our realities today.10 To adopt a
radical stance, in this light, is simply to insist that we have an obligation to honestly confront our social and ecological
predicament and to ask difficult questions about the role that existing social systems might be playing in producing and exacerbating them.
2NC---Links
2NC---Generic Link
State action causes political passivity---the discourse of militarized surveillance
reduces democracy to authoritarianism
Giroux 4 (Henry A., PhD, Professor of Education at Boston Univesrity, "War on Terror, The Militarising of
Public Space and the Culture in the United States, Third Text, Vol. 18, Issue 4, 2004, pp. 211-221,
Accessed 7/6/15)//LD
The process of militarisation has a long history in the United States and is varied rather than static, changing under different historical conditions. Catherine Lutz defines it as an intensification of the labor and resources allocated to military purposes, including the shaping of other
Militarization is simultaneously a discursive process, involving a shift in general societal

institutions in synchrony with military goals.
beliefs and values in ways necessary to legitimate the use of force, the organization of large standing
armies and their leaders, and the higher taxes or tribute used to pay for them . Militarization is intimately connected not only to the obvious increase in
the size of armies and resurgence of militant nationalisms and militant fundamentalisms but also to the less visible deformation of human potentials into the hierarchies of race, class, gender, and sexuality, and to the shaping of national histories in ways that glorify and legitimate military
action.1 Unlike the old style of militarisation in which civil authority is made subordinate to military authority, the new ethos of militarisation is organised to engulf the entire social order, legitimising its values as a central rather than peripheral aspect of American public life. Moreover, the
values of militarism no longer reside in a single group, nor are they limited to a particular sphere of society, as Jorge Mariscal points out: In liberal democracies, in particular, the values of militarism do not reside in a single group but are diffused across a wide variety of cultural locations .
In twenty-first century America, no one is exempt from militaristic values because the processes of
militarisation allow those values to permeate the fabric of everyday life .2 Following September 11,
American power is being restructured domestically around a growing culture of fear and a rapidly
increasing militarisation of public space and culture . As US military action is spreading abroad under the guise of an unlimited war against terrorism, public spaces on the domestic front are
increasingly being organised around values supporting a highly militarised, patriarchal, and jingoistic culture that is undermining centuries of democratic gains. 3 The growing influence of the military presence and ideology in American society is visible, in part, in that the United States has
more police, prisons, spies, weapons, and soldiers than at any time in its history. This radical shift in the size, scope, and influence of the military can be seen, on the one hand, in the redistribution in domestic resources and government funding away from social programmes into military
oriented security measures at home and war abroad. The US Government is devoting huge resources to the monopolistic militarisation of space, the development of more usable nuclear weapons, and the strengthening of its world-girdling ring of military bases and its global navy, as the
most tangible way to discourage any strategic challenges to its preeminence.4 According to journalist George Monbiot, the US federal government is now spending as much on war as it is on education, public health, housing, employment, pensions, food aid and welfare put together. 5
the state is being radically transformed into a national security state , increasingly put under the
On the other hand,
sway of the military corporateindustrialeducational complex. In addition, the military logic of fear, surveillance, and control is gradually permeating our public schools,
As the military becomes dominant in American life, its underlying values, social
universities, streets, popular culture, and criminal justice system.
relations, ideology, and hyper-masculine aesthetic begin to spread out into other aspects of American
culture. Citizens are urged to spy on their neighbours behaviours, watch for
recruited as foot soldiers in the war on terrorism,
suspicious-looking people, and supply data to government sources in the war on terrorism . As permanent war becomes a staple of
everyday life, flags increasingly appear on storefront windows, lapels, cars, houses, SUVs, and everywhere else as a show of support for both the expanding interests of empire abroad and the increasing militarisation of the culture and social order at home. Major universities more
intensively court the military establishment for Defence Department grants and, in doing so, become less open to either academic subjects or programmes that encourage rigorous debate, dialogue, and critical thinking. Public schools not only have more military recruiters, they also have
more military personnel teaching in the classrooms. JROTC programmes are increasingly becoming a conventional part of the school day. As a result of the No Child Left Behind Act, President Bushs educational law, schools risk losing all federal aid if they fail to provide military recruiters
Schools were once viewed as democratic public spheres that would teach
full access to their students; the aid is contingent with complying with federal law. 6
students how to resist the militarisation of democratic life, or at least learn the skills to peacefully
engage domestic and international problems they serve as recruiting stations for students to fight . Now
enemies at home and abroad . Military activities abroad cannot be separated from the increasing militarisation of society at home. War takes on a new meaning in American life as wars are waged on drugs, social policies are criminalised,
schools are increasingly modelled after prisons

youth are tried as adults, incarceration rates soar among the poor, especially people of colour, and . Schools represent one of the most serious public spheres to
as
come under the influence of military culture and values. Tough love now translates into zero-tolerance policies that turn public schools into prison-like institutions, as students rights increasingly diminish under the onslaught of a military-like imposed discipline. Additionally,
educators turn over their responsibility for school safety to the police, the new security culture in public
schools has turned them into learning prisons schools are being reformed with the , 7 most evident in the ways in which
addition of armed guards, barbed-wired security fences, and lock-down drills. Recently, in Goose Creek, South Carolina, police conducted an early
morning drug sweep at Stratford High School. When the police arrived they drew guns on students, handcuffed them, and made them kneel facing the wall.8 No drugs were found in the raid. Though this incident was aired on the national news, there was barely any protest from the public.
The rampant combination of fear and insecurity that is so much a part of a permanent war culture in the United States seems to bear down particularly hard on children. In many poor districts, specialists are being laid off and crucial mental health services are being cut back. As Sara Rimer
recently pointed out in the New York Times, much needed student-based services and traditional, if not compassionate, ways of dealing with student problems are now being replaced by the juvenile justice system, which functions as a dumping ground for poor minority kids with mental
health and special-education problems. . . . The juvenile detention center has become an extension of the principals office. 9 For example, in some cities, ordinances have been passed that allow for the filing of misdemeanour charges against students for anything from disrupting a class
to assaulting a teacher. 10 Children are no longer given a second chance for minor behaviour infractions, nor are they simply sent to the guidance counsellor, principal, or to detention. They now come under the jurisdiction of the courts and juvenile justice system. The
militarisation of public high schools has become so commonplace that, even in the face of the most
flagrant disregard for childrens rights, such acts are justified by both administrators and the public on
the grounds that they keep kids safe surveillance cameras have been installed . In Biloxi, Mississippi in all of its five hundred classrooms. The schools
what they are teaching kids who are put under constant surveillance. The
administrators call this school reform but none of them has asked the question about
not-so-hidden curriculum here is that kids cannot be trusted and that their rights are not worth
protecting they are being educated to passively accept military sanctioned practices organised
. At the same time,
around maintaining control, surveillance, and unquestioned authority, all conditions central to a police
state . It gets worse. Some schools are actually using sting operations in which undercover agents who pretend to be students are used to catch young people suspected of selling drugs or committing any one of a number of school infractions. The consequences of such actions are
far reaching, as Randall Beger notes: Opponents of school-based sting operations say they not only create a climate of mistrust between students and police, but they also put innocent students at risk of wrongful arrest due to faulty tips and overzealous police work. When asked about his
Instances of
role in a recent undercover probe at a high school near Atlanta, a young-looking police officer who attended classes and went to parties with students replied: I knew I had to fit in, make kids trust me and then turn around and take them to jail.11
militarisation and the war at home can also be seen in the rise of the prisonindustrialeducational
complex and the militarisation of the criminal justice system The police . The traditional distinctions between military, police, and criminal justice are blurring. 12
now work in close collaboration with the military . This takes the form of receiving surplus weapons, technology/information transfers, the introduction of SWAT teams modelled after the Navy Seals
This growth of the military model in American life

which are experiencing a steep growth in police departments throughout the US and a growing reliance on military models of crime control.13
has played a crucial role in the paramilitarising of the culture, which provides both a narrative and
legitimisation for recent trends in corrections, including the normalisation of special response teams,
the increasingly popular Supermax prisons, and drug war boot camp s. 14 In the paramilitaristic perspective, crime is no longer seen as a social problem, but now as both
paramilitary culture increasingly embodies a racist and class-specific

an individual pathology and a matter of punishment rather than rehabilitation. Unsurprisingly,
discourse and reflects the discrediting of the social and its related narratives . 15 This is particularly evident as Americas inner cities are being singled out
as dangerous enclaves of crime and violence. The consequences for those communities have been catastrophic, as can be seen in the cataclysmic rise of the prisonindustrial complex. As is widely reported, the United States is now the biggest jailer in the world. Between 1985 and 2002
the prison population grew from 744,206 to 2.1 million (approaching the combined populations of Idaho, Wyoming, and Montana), and prison budgets jumped from US$7 billion in 1980 to US$40 billion in 2000.16 As Sanho Tree points out: With more than 2 million people behind bars
(there are only 8 million prisoners in the entire world), the United States with one-twenty-second of the worlds population has one-quarter of the planets prisoners. We operate the largest penal system in the world, and approximately one quarter of all our prisoners (nearly half a
million people) are there for nonviolent drug offenses.17 Yet, even as the crime rate plummets dramatically, more people, especially people of colour, are being arrested, harassed, punished, and put in jail.18 Of the two million people behind bars, 70% of the inmates are people of colour:
50% are African-American and 17% are Latino.19 A Justice Department Report declares that on any given day in the United States more than a third of the young African-American men aged eighteen to thirty-four in some of our major cities are either in prison or under some form of
criminal justice supervision. 20 The same department reported in April of 2000 that black youth are forty-eight times more likely than whites to be sentenced to juvenile prison for drug offenses. 21 When poor youth of colour are not being warehoused in dilapidated schools or
incarcerated, they are being aggressively recruited by the Army to fight the war abroad. For example, Carl Chery recently reported: With help from The Source magazine, the U.S. military is targeting hiphop fans with custom made Hummers, throwback jerseys and trucker hats. The yellow
Hummer, spray-painted with two black men in military uniform, is the vehicle of choice for the U.S. Armys Take It to the Streets campaign a sponsored mission aimed at recruiting young African Americans into the military ranks.22 It seems that the Army has discovered hip-hop and
urban culture but, rather than listening to the searing indictments of poverty, joblessness, and despair that is one of that cultures central messages, the Army recruiters appeal to its most commodified elements by letting the potential recruits hang out in the Hummer, where they can pep
the sound system or watch recruitment videos. 23 Of course, they wont view any videos of Hummers being blown up in the war-torn streets of Baghdad. Under the auspices of the national security state and the militarisation of domestic life, containment policies become the principle
means to discipline working-class youth and restrict their ability to think critically and engage in oppositional practices. Marginalised students learn quickly that they are surplus populations and that the journey from home to school no longer means they will next move into a job; on the
contrary, school now becomes a training ground for their graduation into the containment centres of prisons that keep them out of sight, patrolled and monitored so as to prevent them from becoming a social canker or political liability to those white and middle-class populations
concerned about their own safety. Schools increasingly function as zoning mechanisms to separate students marginalised by class and colour and as such these institutions are now modelled after prisons. This follows the argument of David Garland, who points out that: Large-scale
incarceration functions as a mode of economic and social placement, a zoning mechanism that segregates those populations rejected by the depleted institutions of family, work, and welfare and places them behind the scenes of social life.24 And judging from President Bushs 2004 State
of the Union Address, his administration will continue to allocate funds for educational reform intended to both strip young people of the capacity to think critically by teaching them that learning is largely about test-taking and prepare them for a culture in which punishment has become
the central principle of reform. Bush cannot fully fund his own educational reform act but he pledged in his Address an additional US$23 million to promote drug testing of students in public schools. Once again, fear, punishment, and containment override the need to provide health care
for 9.3 million uninsured children, increase the ranks of new teachers by at least 100,000, fully support Head Start programmes, repair deteriorating schools, and improve those youth services that will break for many poor students the direct pipeline from school to either the local police
Militarisation is widespread in the realm of culture and functions as a mode of public

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

ourselves, forged by the hot fires of discipline and training. We are fierce in a way no other can be. We are the marines.
popular culture is increasingly bombarded with militarised values, symbols, and images . Video games such as Doom have a long history
of using violent graphics and shooting techniques that appeal to the most hyper-modes of masculinity. The Marine Corps was so taken with Doom in the mid 1990s that it produced its own version of the game, Marine Doom, and made it available to download free. One of the developers
of the game, Lieutenant Scott Barnett, claimed at the time that it was a useful game to keep marines entertained. The interface of military and popular culture is not only valuable in providing video game technology for diverse military uses, it has also resulted in the armed forces
developing partnerships with the video game industry to train and recruit soldiers. 26 The military uses the games to train recruits and the video game makers offer products that have the imprimatur of a first-class fighting machine. And the popularity of militarised war games is on the
rise. Nick Turse argues that as the line between entertainment and war disappears a: . . . military-entertainment complex [has] sprung up to feed both the militarys desire to bring out ever-more-realistic computer and video combat games. Through video games, the military and its
partners in academia and the entertainment industry are creating an arm of media culture geared toward preparing young Americans for armed conflict.27 Combat teaching games offer a perfect fit between the Pentagon, with its accelerating military budget, and the entertainment
industry, with annual revenues of US$479 billion, which includes US$40 billion from the video game industry. The entertainment industry offers a stamp of approval for the Pentagons war games and the Defence Department provides an aura of authenticity for corporate Americas war-
based products. While collaboration between the Defense Department and the entertainment industry has been going on since 1997, the permanent war culture that now grips the United States has given this partnership a new life and greatly expanded its presence in popular culture.
The military has found numerous ways to take advantage of the intersection between popular culture
and the new electronic technologies . Such technologies are not only being used to train military personnel, they are also being put to use as a recruiting tool, tapping into the realm of popular culture with its celebration of
video games, computer technology, the Internet, and other elements of visual culture used by teenagers.28 For instance, the army has developed online software that appeals to computer-literate recruits, and the most attractive feature of the software is a shooting game that actually
simulates battle and strategic-warfare situations. 29 When asked about the violence the games portray, Brian Ball, the lead developer of the game, was crystal clear about the purpose of the video. We dont downplay the fact that the Army manages violence. We hope that this will help
people understand the role of the military in American life. 30 Capitalising on its link with industry, a host of new war games are in production. There is Americas Army, one of the most popular and successful recruiting video games. This game teaches young people how to kill enemy
soldiers while wearing your pyjamas [and also provides] plenty of suggestions about visiting your local recruiter and joining the real US Army. 31 Using the most updated versions of satellite technology, military-industry collaboration has produced Kuma: War. This game was developed by
the Department of Defence and Kuma Reality Games, and slated for release in 2004. It is a subscription-based product that prepares gamers for actual missions based on real-world conflicts, and is updated weekly.32 The game allows players to recreate actual news stories such as the raid
American forces conducted in Mosul, Iraq in which Saddam Husseins two sons, Uday and Qusay, were killed. Gamers can take advantage of real true to life satellite imagery and authentic military intelligence, to jump from the headlines right into the frontlines of international conflict. 33
Of course, the realities of carrying eighty-pound knapsacks in one hundred and twenty degree heat, the panic-inducing anxiety and fear of real people shooting real bullets or planting real bombs to kill or maim you and your fellow soldiers, and the months, if not years away from family are
not among those experiences reproduced for instruction or entertainment. Young people no longer learn military values in trainingcamp or in military-oriented schools. These values are now disseminated through the pedagogical force of popular culture itself, which has become a major
tool used by the armed forces to educate young people about the ideology and social relations that inform military life minus a few of the unpleasantries. The collaboration between the military-entertainment complex offers up a form of public pedagogy that: . . . may help to produce
attitudes
great battlefield decision makers, but . . . strike from debate the most crucial decisions young people can make in regard to the morality of a war choosing whether or not to fight and for what cause.34 In light of the militaristic transformation of the country,
toward war play have changed dramatically and can be observed in the major increase in the sales,
marketing, and consumption of military toys, games, videos, and clothing. Corporations recognise that
there are big profits to be made at a time when military symbolism gets a boost from the war in Iraq and
the upsurge in patriotic jingoism. The popularity of militarised culture is apparent not only in the sales of video combat games but also in the sales of childrens toys. Major retailers and major chain stores across the country are
selling out of war-related toys. KB Toys stores in San Antonio, Texas, sold out in one day an entire shipment of a fatigue-clad plush hamsters that dance to military music, and managers at KB Toys stores were instructed to feature military toys in the front of their stores. 35 Moreover, sales
of action figures have soared. For example, between 2001 and 2002, sales of GI Joe increased by forty-six percent, Hasbro reported. And when toy retailer Small Blue Planet launched a series of figures called Special Forces: Showdown with Iraq, two of the four models sold out
immediately.36 KB Toys took advantage of the infatuation with action toys related to the war in Iraq by marketing a doll that is a pint-sized model of George W Bush dressed in the US pilot regalia he wore when he landed on the USS Abraham Lincoln on May 1, 2003. Japanese electronic
giant SONY attempted to cash in on the war in Iraq by patenting the term Shock and Awe for use with video and computer games. The phrase was used by Pentagon strategists as part of a scare tactic to be used against Iraq. It referred to the massive air bombardment planned for
Baghdad in the initial stages of the war. The New York Times reported that after September 11, 2001, nearly two-dozen applications were filed for the phrase, Lets Roll . The term was made famous by one of the passengers on the ill-fated abducted plane that crashed in a field in
Pennsylvania. Even in the world of fashion, the ever-spreading chic of militarisation and patriotism is making its mark. ArmyNavy stores are doing a brisk business not only selling American flags, gas masks, aviator sun glasses, night-vision goggles, and other military equipment but also
clothing with the camouflage look.37 Even chic designers are getting into the act. For instance, at a recent fashion show in Milan, Italy, many designers were drawn to GI uniforms [and were] fascinated by the construction of military uniforms. One designer had beefy models in commando
Militarism in both its old and new forms views life as a form of permanent warfare,
gear scramble over tabletops and explode balloons. 38
and subordinates society to the military

in doing so It diminishes both the rather than subordinating the military to the needs of a democratic social order.
legitimate reasons for a military presence in society and the necessary struggle for the promise of
democracy itself militarism is
. As Umberto Eco points out, under the rubric of its aggressive militarism, there is no struggle for life but, rather, life is lived for struggle. 39 The ideology of central to any understanding of its appeals to a form
at odds with any viable notion of democracy

of irrationality that is it uses fear to drive human behaviour, and the . For instance,
values it promotes are mainly distrust, patriarchy, and intolerance . Within this ideology, masculinity is associated with violence, and action is often substituted for the
Democracy appears as an excess in this logic and is

democratic processes of deliberation and debate. Militarism as an ideology is about the rule of force and the expansion of repressive state power.
often condemned as being a weak system of government . Echoes of this anti-democratic sentiment can be found in the passage of the PATRIOT Act with its violation of civil liberties, in the
rancorous patriotism that equates dissent with treason, and in the discourse of public commentators who in the fervour of a militarised culture fan the flames of hatred and intolerance. One example that has become all too typical emerged after the September 11 attacks. Columnist Ann
Coulter, in calling for a holy war on Muslims, wrote: We should invade their countries, kill their leaders and convert them to Christianity. We werent punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. Thats war.
And this is war.40 While this statement does not reflect the mainstream of American opinion, the uncritical and chauvinistic patriotism and intolerance that informs it has not only become standard fare among many conservative radio hosts in the United States but increasingly is produced
As militarisation spreads through the culture, it produces policies that rely more on
and legitimised in a wide number of cultural venues.
force than on dialogue and compassion; it offers up modes of identification that undermine democratic
values and tarnish civil liberties we are quickly becoming a
; and it makes the production of both symbolic and material violence a central feature of everyday life. As Kevin Baker remarks,
nation that substitutes military solutions for almost everything, including international alliances,
diplomacy, effective intelligence agencies, democratic institutions even national security . 41 By blurring the lines between
militarisation deforms our language, debases democratic values, celebrates fascist modes of
military and civilian functions,
control, defines citizens as soldiers, and diminishes our ability as a nation to uphold international law and
support a democratic global public sphere militarisation will undermine . Unless it is systemically exposed and resisted at every place where it appears in the culture,
the meaning of critical citizenship and do great harm to those institutions that are central to a
democratic society. demise of democracy fuelled by the spread of militarisation is also revealed in a
The
policy of anti-terrorism Not only does this policy of all-embracing anti-

practiced by the Bush administration that mimics the very terrorism it wishes to eliminate.
terrorism exhaust itself in a discourse of moral absolutes, militarism, revenge, and public acts of
denunciation, it also strips community of democratic values by configuring politics in religious terms and defining every citizen and inhabitant of the United States as a potential
Politics becomes empty as it reduces citizens to obedient recipients of power, content to follow
terrorist.
orders, while shaming those who make power accountable dissent is stifled in the face . Under the dictates of a pseudo-patriotism,
of a growing racism that condems Arabs and people of colour as less than civilized refusal of the . The recent
American government to address with any degree of selfcriticism or humanity the torture and violation
of human rights exercised by American soldiers at Abu Ghraib prison in Iraq offers a case in point . In light of the
relevation of the most grotesque brutality, racisim, and inhumanity exhibited by American soldiers against Arab prisoners captured on camera and video, powerful right-wing politicians and pundits such as Rush Limbaugh and Cal Thomas defend such actions as either a way for young men
to blow some steam off, engage in a form of harmless frat hazing, or give Muslim prisoners what they deserve. It gets worse. Commentators such as Newt Gingrich and Republican Senator James Inhofe have gone so far as to suggest that calling attention to such crimes not only
undermines troop morale in Iraq, but is also unpatriotic. Defending torture and gross sexual humiliations by US troops in Saddams old jails is not merely insensitive political posturing, it is, more tellingly, indicative of how far the leadership of this country has strayed from any real
As militarisation spreads its influence both at home and abroad, a culture of fear is mobilised in
semblance of democracy.
order to put into place a massive police state intent on controlling and manipulating public speech while
making each individual a terrorist suspect subject to surveillance the increasing , fingerprinting, and other forms of electronic tattooing. But
danger of militarisation is also evident in the attempt by the corporate/military/ media complex to create
those ideological and pedagogical conditions in which people either become convinced that the power
of the commanding institutions of the state should no longer held accountable or believe that they are
powerless to challenge the new reign of state terrorism militarisation . And as spreads its values and power throughout American society and the globe, it
works to eliminate those public spaces necessary for imagining an inclusive democratic global society .
Militarisation and the culture of fear that legitimises it have redefined the very nature of the political,
and in so doing have devalued speech and agency as central categories of democratic public life . And it is precisely as a
particular ideology and cultural politics that militarisation has to be opposed.
Their calculative approach guts solvency and turns case ultimately sacrifices minority
rights to privileged legal interests
Williams and Arrigo 2k (Christopher R., associate professor of criminology at the University of West
Georgia, and Bruce A., professor of crime, law, and society and the former chair of the department of
criminal justice at the University of North Carolina at Charlotte. The Philosophy of the Gift and the
Psychology of Advocacy: Critical Reflections on Forensic Mental Health Intervention (2000),
International Journal for the Semiotics of Law vol. 13, Kluwer Academic Publishers, pp. 215242)
Ralph Waldo Emersons 1844 essay entitled Gifts, is, perhaps, the first full-blown exposition regarding the problem of the gift.18 Though
limited in scope, his
treatment delineates the paradoxical nature of the gift by suggesting the incursion of
debt that is inherent in the practice of giftgiving. A failure to repay or reciprocate , implies Emerson, creates a
tension between the one who gives and the one who receives , leaving the former disposed to feelings of inferiority and
vengeance, while the latter endures a threat to oness own independence. As Emerson notes, . . . It is not the office of a man to receive gifts.
How dare you give them? We wish to be self-sustained. We do not quite forgive a giver. The hand that feeds us is in some danger of being
bitten ...19 Where Hobbess position on human nature suspects the motives of the assigner, Emerson questions the psychology of the recipient,
as well as the recognition by both parties that the bestowal of an award embodies a certain display or degree of power. For Emerson, then,
there is a twofold danger inherent in the economy of gift-giving. In short, both giver and receiver are
vulnerable to the effects of perversion and degradation. 20 The corruption of the gift and the debasement of giving occur
when what is offered is principally defined as something to be given. In other words, the usurpation of a true gift and a pure
act of consigning is enacted once calculated as an award conceived and constructed for its value as a gift.
In this sense, the gift need not be a material object or something possessing a physical nature. Rather, every act of helping, assisting,
or intervening entails some form of a token or a gratuity. If the act of advocacy is generated in a less than
genuine manner; that is, if it is not the giving of a portion of thyself 21 but, rather, is a deliberate act
constructed for the sole purpose of being given as some form of gift, then it is equally subject to the kind of
perversions and degradations implied in Emersons essay. Emersons observations raise a number of questions about those gifts that
are calculated, intentional efforts to provide something of value to someone else. One example are the various constitutional
rights afforded persons with mental illness, and how such liberty protections form the basis of many
advocacy efforts.22 While these constitutional safeguards are ostensibly provided to individuals with
psychiatric disorders out of genuine interest in human welfare (i.e. as a manifestation of the
compassionate disposition of the law, legal processes, and legal institutions), these apparent rights often
conceal the more sinister motivating factors underlying juridical decision making . Indeed, it may be
argued that the very purpose of availing such rights is to give the appearance of a compassionate and
humane approach to individual justice when , in fact, these are merely self-interested attempts to quiet
the voices of protest.23 In this context, the gift of rights appears as a deliberate effort to provide users of
mental health services with the humanity that the law wants for them or that serves the interests of the
legal sphere or other privileged and invested collectives . Is the law likely to give something when doing
so threatens juridical or system-sustaining interests? We submit that this Machiavellian display of
compassion fails to reflect the authentic, unadulterated desire of the recipient. Instead, it reflects a calculated and, thus,
degraded enterprise of self-interested giving. Thus, when we advocate for the rights of persons with mental illness, we might
do well to ask ourselves: whose desires do we truly re-present?24
The aff doesnt solve anything---so-called reform just masks the perpetual state of
exception
Douglas 9 (Jeremy, peer-reviewed independent researcher, "Disappearing Citizenship: surveillance and
the state of exception", Surveillance & Society 6.1 (2009), pp. 32-42, Accessed 7/6/15)//LD
Looking back at the Judean Roman camp example, the detention of the Jews could be seen as enacted during an iustitium when Jewish rebelliousness was endangering the newly acquired
the state of exception, is a void in which the suspension of the

Roman providence of Judea. The iustitium, as with other examples of
law creates a zone that evades all legal definition. Thus, the state of exception is neither within nor outside
of jurisprudence it is situated in an absolute non-place with respect to the law (ibid, 50-51). This non-place, however,
also has literal geographic implications the place of the camp is no longer necessary for creating bare life. Rather, the mutually operative surveillance and state of exception allow for a city-
camp, which maintains control and suspicion over a population without necessitating borders. But, we must distinguish and this is relevant for the Roman camp example between the
functionality and mechanization of camps (see abstract). For example, the Roman camp, prison, border camp, work camp, etc. all have a different functionality from the suppression of a
rebellion to idle detention but the mechanizations they employ to carry out this functionality are the same - to monitor and maintain control over a given population by creating bare life (the
reason the population is in a camp in the first place is surprisingly irrelevant). Although the functionality of camps may differ, I want to emphasize that the mechanizations of
power will always employ a structure of surveillance; this is the link between ancient and modern camps. Moving away from ancient examples of
the state of exception and looking at the current American judicial-political situation, Agambens central argument in Homo Sacer and State of Exception is that modern politics
are defined by the permanence of a state of exception in which the exception becomes the rule, or the
norm. An example of this exception-as-the-rule can be seen in an American 2006 CRS Report for Congress on national emergency powers: those authorities available
to the executive in time of national crisis or exigency have, since the time of the Lincoln Administration,
come to be increasingly rooted in statutory law (Relyea 2006, 2, authors italics). It continues: Under the powers delegated by such statutes
[constitutional law, statutory law, and congressional delegations], the President may seize property , organize and control the means of
production, seize commodities, assign military forces abroad, institute martial law, seize and control all
transportation and communication, regulate the operation of private enterprise, restrict travel, and, in a
variety of ways, control the lives of United States citizens . (ibid, 4, authors italics). This report alludes to biopolitical powers for one, but also the
ways in which the state of emergency is implemented through a variety of statutes , and not instituted as one
bill or act that can be in or out of force en bloc. Rather, it is becoming more difficult to identify juridical
documents that provide state of exception powers that are clearly distinguishable from normal law. The
Patriot Act, to be sure, is clearly identifiable from normal US law, but The Domestic Security Enhancement Act 2003 was not passed
under that name (nor under the alias Patriot Act II), but was tacked on to other Senate Bills piecemeal. For example, some
enhanced surveillance measures were not passed under the Patriot Act, but were passed into US Code -
under title 50, chapter 36, subchapter I, 1802 of the US Code: Notwithstanding any other law, the President, through the Attorney General, m ay
authorize electronic surveillance without a court order under this subchapter to acquire foreign
intelligence information for periods of up to one year. So, snooping surveillance tactics will still be part
of normal law even if the Patriot Act is not renewed; this is what Agamben means when he writes of
the permanent state of emergency (Agamben 2005, 2).
Legal reform is a palliative measure that sutures superficial instances of white

supremacy while amplifying their underlying causes
Spade 13 (Dean, Associate Professor of Law at Seattle University School of Law. Intersectional
Resistance and Law Reform (Summer 2013), Signs vol. 38 no. 4, University of Chicago Press)
Critical race theory brought to legal scholarship a critique of formal legal equality and the discrimination
principle, recognizing the failures of civil rights legislation to alleviate the systemic racialized
maldistribution of wealth and life chances. The concept of formal legal equality articulates an important disjuncture between
the racial neutrality declared by law and the material realities of white supremacy. This disjuncture stems, at least in part, from the inadequacy
of the discrimination principle for conceptualizing the conditions of white supremacy. The
discrimination principle understands
racist harm in such a limited way as to make it exceptionally difficult to prove that a violation of
discrimination law has occurred and to make the conditions produced by racism unreachable through
discrimination doctrine. Racism is understood through the paradigm of individual discriminators who
take race into account when making decisions about activities like hiring, firing, leasing, selling, or serving Freeman 1996. In the
absence of explicit, intentional exclusion, courts rarely find a violation of discrimination law. Proving that
harm was intentional and based on race can be exceptionally difficult, especially when multiple vectors of subjection exist for the affected
person or people Crenshaw 2008. Moreover, the discrimination principle regards intentional exclusions or
preferences based on race as equally harmful whether they harm or benefit people of color. Color
blindness is the rationale for this approach. It dehistoricizes racial exclusion and suggests that any
individuals experience of exclusion or preference based on race is equally harmful. It assumes a level
playing field in which race consciousness, not white supremacy, is the problem the law must seek to
eliminate.1 These features of the discrimination principle have produced troubling results. Programs aimed at remedying racial disparity
have been declared illegally discriminatory; meanwhile, antidiscrimination laws have proven to be largely ineffective in
addressing even the narrowest version of individual race discrimination. Most people of color who have been denied
a job or an apartment cannot produce the required evidence of intent, not to mention that the people for whom such losses will produce the
worst consequences likely cannot afford an attorney Legal Services Corporation 2009. These
peoplepoor people, people
with disabilities, women, queer and trans people, immigrantsare also unlikely to have the kind of
single-axis discrimination case that courts and lawyers most easily understand. They are more likely to
be facing multiple vectors of exclusion and to be interacting in less formal conditions, such as low-wage
contingent labor, which further decreases the chances that there will be a paper trail proving that their
experience was the result of discrimination Ruckelshaus and Goldstein 2002. The most severe conditions
produced by white supremacy cannot be addressed or even imagined by antidiscrimination law. Those
conditions that do not result from the misdeeds of a perpetrating individual or organizationthe broad conditions of maldistribution visible in
the United Statess racial wealth divide; extreme racial disparity in access to housing, employment, education, food, and health care; the
ongoing occupation and expropriation of native lands; and targeting in criminal punishment, environmental harm, and immigration enforcement
are cast as neutral by the discrimination principle Gilmore 199899; United for a Fair Economy 2006. When
racist harm is framed
as a problem of aberrant individuals who discriminate and when intention must be proved to find a
violation of law, the central conditions of white supremacy are implicitly declared neutral. In the United States,
this has been accompanied by a robust discourse that blames people of color for poverty and criminalization, a logical leap required when color
blindness has been declared the law of the land and racism has been defined so narrowly as to exclude it from blame in the most widespread
adverse conditions facing people of color. Critical race theorists have supplied the concept of preservation-through-transformation to describe
the neat trick that civil rights law performed in this dynamic Siegel 1997, 1119; Harris 2006. In
the face of significant resistance to
conditions of subjection, law reform tends to provide just enough transformation to stabilize and
preserve status quo conditions. In the case of widespread rebellion against white supremacy in the
United States, civil rights law and color-blind constitutionalism have operated as formal reforms that
mask the perpetuation of the white supremacist status quo. Explicit exclusionary policies and practices
became officially forbidden, yet the racialized-gendered maldistribution of life chances in the United
States remained the same or worsened with the increasing concentration of wealth and the
simultaneous dismantling of social welfare systems Harris 2006, 155461; United for a Fair Economy 2006).
Legislative solutions just mask social issues and enable victim-blaming

Delgado 91 (Richard, Charles Inglis Thomson Professor of Law, University of Colorado. J.D. 1974,
University of California, Berkeley (Boalt Hall), "Norms and Normal Science: Toward a Critique of
Normativity in Legal Thought, University of Pennsylvania Law Review (1991), pp. 933-962, Accessed
7/7/15)//LD
Ordinary life is full of similar examples in which the

mere pronouncement of something as normatively good or bad
changes our perception of it. The decision in Brown v. Board of Education42 changed the way we thought about
minorities. Reagan and Reaganomics changed things back again.43 During war, we demonize our enemies, and thereafter
actually see them as grotesque, evil and crafty monsters deserving of their fate on the battlefield.44 Later, during peacetime, they
may become our staunch allies once again. Derrick Bell and other Critical Race theorists have been pointing out the way in which standard,
liberal-coined civil rights law injures the chances of people of color and solidifies racism.45 According to these
writers, one function of our broad system of race-remedies law is to free society of guilt . Although the remedies
are ineffective, they enable members of the majority group to point to the array of civil rights statutes
and case law which ostensibly assure fair and equal treatment in schools, housing, jobs, and many other areas of life. With all
these elaborate antidiscrimination laws on the books, if black people are still poor and unhappy -well,
what can be done? The law's condemnation of racism thus enables us to blame the victim, praise ourselves for our
liberality, and thereby deepen the dilemma of people of color .46 Repeated assertion has also proved able to change our notions of the
proper role of the judiciary. In previous times, courts, such as the Warren Court, undertook to remedy poverty and injustice. This came to be seen as a proper role
for judges and lawyers. Recently, conservatives have been asserting the "quieter" virtues of judicial restraint and strict construction. 47 They have prevailed not so
much because the argument for judicial quietism is so compelling, but because they have stated it so often, with so much authority and with the power to make it
so. Today, most of us see the rare case of an activist judge as quaint, or aberrational, and nod (approvingly?) when we see judicial abstention. Professional societies
engage in behavior of this performative sort in an effort to get the public to accept the profession's view of what responsible behavior is, or to see another
profession (e.g., lawyers) as responsible for the problems associated with the first profession (e.g., medical malpractice). More instances of this sort are discussed in
the next section.
Reform is a shell game the plan just shuffles the specifics of how power will become
centralized and securitized
Rana 12 (Aziz, Prof of Law @ Cornell, Who Decides on Security?, CONNECTICUT LAW REVIEW 44(5):
1417-1490. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2473&context=facpub)
Today, politicians and legal scholars routinely

invoke fears that the balance between liberty and security has
swung drastically in the direction of government's coercive powers . In the post-September 11 era, such worries are so
commonplace that, in the words of one commentator, "it has become a part of the drinking water in this country that there has been a tradeoff
of liberty for security . . . ." According to civil libertarians, centralizing executive power and removing the legal constraints that
inhibit state violence (all in the name of heightened security) mean the steady erosion of both popular deliberation and
the rule of law.2 For Jeremy Waldron, current practices, from coercive interrogation to terrorism surveillance and
diminished detainee rights, provide government the ability not only to intimidate external enemies, but also
internal dissidents and legitimate political opponents. He writes, "[w]e have to worry that the very means given to the government to
combat our enemies will be used by the government against its enemies .... ,4 Especially disconcerting for many commentators, executive
judgments--due to fears of infiltration and security leaks-are often cloaked in secrecy. This lack of transparency undermines a core value of
democratic decision-making: popular scrutiny of government action. As Sixth Circuit Judge Damon Keith famously declared in a case involving
secret deportations by the executive branch, "[d]emocracies die behind closed doors. . . . When government begins closing doors, it selectively
controls information rightfully belonging to the people. Selective information is misinformation."' 6 In the view of no less an establishment
figure than Neal Katyal, who until June 2011 was the Acting Solicitor General, such security measures transform the current presidency into the
"most dangerous branch[,]" one that "subsumes much of the tripartite structure of government., 7 Widespread concerns with the
government's security infrastructure are by no means a new phenomenon. In fact, such voices are part of a
sixtyyear history of reform aimed at limiting state (particularly presidential) discretion and preventing likely abuses. 8 What is remarkable
about these reform efforts is that in every generation critics articulate the same basic anxieties and
present virtually identical procedural solutions. These procedural solutions focus on enhancing the
institutional strength of both Congress and the courts to rein in the unitary executive. They either promote new
statutory schemes that codify legislative responsibilities or call for greater court activism. As early as the 1940s, Clinton Rossiter argued that only
a clearly established legal framework in which Congress enjoyed the power to declare and terminate states of emergency would prevent
executive tyranny and rights violations in times of crisis.9 After
the Iran-Contra scandal, Harold Koh, now State Department Legal
Adviser, once more raised this approach, calling for passage of a National Security Charter that explicitly
enumerated the powers of both the executive and the legislature , promoting greater balance between
the branches and explicit constraints on government action .10 More recently, Bruce Ackerman has defended the need for
an "emergency constitution" premised on congressional oversight and procedurally specified practices." As for increased judicial vigilance,
Arthur Schlesinger argued nearly forty years ago, in his seminal book, The Imperial Presidency, that the courts "had to reclaim their own dignity
and meet their own responsibilities" by abandoning deference and by offering a meaningful check to the political branches.1 2 Today, Laurence
Tribe and Patrick Gudridge once more imagine that, by providing a powerful voice of dissent, the courts can play a critical role in balancing the
branches. They write that adjudication can "generate[]-even if largely (or, at times, only) in eloquent and cogently reasoned dissent-an apt
language for potent criticism.'1 3 The
hope-returned to by constitutional scholars for decades-has been that by creating clear
legal guidelines for security matters and by increasing the role of the legislative and judicial branches,
government abuse can be stemmed. Yet despite this reformist belief, presidential and military prerogatives
continue to expand even when the courts or Congress intervene. Indeed, the ultimate result primarily has
been to entrench further the system of discretion and centralization. In the case of congressional legislation (from the
200 standby statutes on the books 14 to the post-September 11 and Iraq War Authorizations for the Use of Military Force, to the Detainee
Treatment Act and the Military Commissions Acts'5), this has often entailed Congress self-consciously playing the role of junior partner-
buttressing executive practices by providing its own constitutional imprimatur to them. Thus, rather than rolling back security
practices, greater congressional involvement has tended to further strengthen and internalize
emergency norms within the ordinary operation of politics. 16 As just one example, the USA PATRIOT Act, while no
doubt controversial, has been renewed by Congress a remarkable ten consecutive times without any meaningful curtailments. 7 Such realities
underscore the dominant drift of security arrangements, a drift unhindered by scholarly suggestions and reform initiatives. Indeed, if anything,
today's scholarship finds itself mired in an argumentative loop, re-presenting inadequate remedies and
seemingly incapable of recognizing past failures. What explains both the persistent expansion of the federal government's
security framework as well as the inability of civil libertarian solutions to curb this expansion? This Article argues that the current reform
debate ignores the broader ideological context that shapes how the balance between liberty and
security is struck. In particular, the very meaning of security has not remained static, but rather has changed dramatically since World War
II and the beginning of the Cold War. This shift has principally concerned the basic question of who decides on issues of war and emergency. And
as the following pages explore, at the center of this shift has been a transformation in legal and political judgments about the capacity of citizens
to make informed and knowledgeable decisions in security domains. Yet, while underlying assumptions about popular knowledge-its strengths
and limitations-have played a key role in shaping security practices in each era of American constitutional history, this role has not been
explored in any sustained way in the scholarly literature. As an initial effort to delineate the relationship between knowledge and security, this
Article will argue that throughout most of the American experience, the
dominant ideological perspective saw security as
grounded in protecting citizens from threats to their property and physical well-being (especially those threats
posed by external warfare and domestic insurrection). Drawing from a philosophical tradition extending back to John Locke, many politicians
and thinkers-ranging from Alexander Hamilton and James Madison, at the founding, to Abraham Lincoln and Roger Taney-maintained that most
citizens understood the forms of danger that imperiled their physical safety. 18 The average individual knew that securing collective life was in
his or her own interest, and also knew the institutional arrangements and practices that would fulfill this paramount interest. 19 A widespread
knowledge of security needs was presumed to be embedded in social experience, indicating that citizens had the skill to take part in democratic
discussion regarding how best to protect property or to respond to forms of external violence. Thus the question of who decides was answered
decisively in favor of the general public and those institutions-especially majoritarian legislatures and juries-most closely bound to the public's
wishes.2 What marks the present moment as distinct is an increasing repudiation of these assumptions
about shared and general social knowledge. Today, the dominant approach to security presumes that
conditions of modem complexity (marked by heightened bureaucracy, institutional specialization, global interdependence, and
technological development) mean that while protection from external danger remains a paramount interest of
ordinary citizens, these citizens rarely possess the capacity to pursue such objectives adequately. 2'
Rather than viewing security as a matter open to popular understanding and collective assessment, in ways both
small and large the prevailing concept sees threat as sociologically complex and as requiring elite modes
of expertise.22 Insulated decisionmakers in the executive branch, armed with the specialized skills of the professional military,
are assumed to be best equipped to make sense of complicated and often conflicting information about safety and selfdefense.23
The result is that the other branches-let alone the public at large-face a profound legitimacy deficit whenever
they call for transparency or seek to challenge presidential discretion. Not surprisingly, the tendency of procedural
reform efforts has been to place greater decision-making power in the other branches , and then to watch
those branches delegate such power back to the very same executive bodies.
The plans attempt to find the legal way to conduct surveillance brackets out a
rethinking of the security state by taking its necessity as a given
Williams 7 (Daniel, Law Prof @ Northwestern, After the Gold Rush-Part I: Hamdi, 9/11, and the Dark
Side of the Enlightenment, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=970279)
Thisfearsome sort of legality is largely shielded from our view (that is, from the view of Americans---the ones wielding
this legality) with the veil of democracy, knitted together with the thread of process jurisprudence. Within
process jurisprudence, there is no inquiry into the fundamental question: allocation of power between the
branches to accomplish . . . what? It is very easy to skip that question, and thus easy to slide into or accept
circular argumentation.31 With the focus on the distribution of power, arguments about what to do in
this so-called war on terror start off with assumptions about the nature of the problem (crudely expressed as violent
Jihadists who hate our freedoms) and then appeal to those assumptions to justify certain actions that have come to
constitute this war. The grip of this circularity, ironically enough, gains its strength from the ideology of legality,
the very thing that the Court seeks to protect in this narrative drama, because that ideology fences out considerations of history,
sociology, politics, and much else that makes up the human experience. What Judith Shklar observed over forty years ago captures the point here: the
legalism mindset--which thoroughly infuses the process jurisprudence that characterizes the Hamdi analysis--produces the urge to draw a clear
line between law and nonlaw which, in turn, leads to the construction of ever more refined and rigid
systems of formal definitions and thus serve[s] to isolate law completely from the social context
within which it exists. 32 The pretense behind the process jurisprudence--and here pretense is purpose--is the resilient belief that law can be, and ought to be, impervious to
ideological considerations. And so, the avoidance of the accomplish . . . what? question is far from accidental; it is the
quintessential act of legality itself.33 More than that, this deliberate isolation of the legal system . . . is itself a refined political ideology, the expression of a
preference that masquerades as a form of judicial neutrality we find suitable in a democracy.34 If the Executives asserted prerogative to prosecute
a war in a way that will assure victory is confronted with the prior question about what exactly we want
to accomplish in that war--if, that is, we confront the question posed by Slavoj Zizek, noted at the outset of this articlethen the idea of national
security trumping law takes on an entirely different analytical hue. Professor Owen Fiss is probably right when he
says that the Justices in Hamdi searched for ways to honor the Constitution without compromising national
interests.35 But that is a distinctly unsatisfying observation if what we are concerned about is the
identification of what exactly those national interests are.36 We may not feel unsatisfied because, in the context of Hamdi, it undoubtedly seems
pointless to ask what we are trying to accomplish, since the answer strikes us as obvious. We are in a deadly struggle to stamp out the terrorist threat posed by Al Qaeda, and more generally,
terrorism arising from a certain violent and nihilistic strain of Islamic fundamentalism. Our foreign policy is expressly fueled by the outlook that preemptive attacks is not merely an option, but
is the option to be used. In the words of the Bush Administrations 2002 National Security Strategy document, In the world we have entered, the only path to safety is the path of action. And
this nation will act.37 OConnor and the rest of the Court members implicitly understand our foreign policy and the goal to be pursued in these terms, which explains why the Hamdi opinion
the stories we want to tell dictate the stories

nowhere raises a question about what it is the so-called war on terror seeks to accomplish. After all,
that we do tell. We want to tell ourselves stories about our own essential goodness and benevolence, our
own fidelity to the rule of law; and that desire dictates the juridical story that ultimately gets told . Once one posits that
our foreign policy is purely and always defensive, as well as benevolent in motivation,38 then whatever the juridical storyeven one where the nations highest Court announces that the
Executive has no blank check to prosecute a war on terrorthe underlying reality inscribed upon the worlds inhabitants,the consequences real people must
absorb somehow, is one where the United States has established that its only limit on the world stage
will be its military power.39 As OConnor sees it, the real problem here is that, given that the allocation-of-power issue is tied to
the goal of eliminating the terrorist threat, we have to reckon with the probability that this allocation is
not just an emergency provision, but one that will be cemented into our society, since the current
emergency is likely to be, in all practicality, a permanent emergency. But to say we are in a struggle to stamp out a terrorist threat posed by Islamic
fundamentalism, and to say that the only path to safety is the path of action, conceals --renders invisible, a postmodernist would likely put it--
an even more fundamental, and more radical, question: the allocation of power that the Court is called upon to
establish is in the service of eliminating a terrorist threat to accomplish . . . what ? The standard answer is, our security, which
most Americans would take to mean, to avert an attack on our homeland, and thus, as it was with Lincoln, to preserve the Union. And so, we accept as obvious that our
dilemma is finding the right security-liberty balance . The problem with that standard answer is two-fold. First, it glosses over the
fact that we face no true existential threat , no enemy that genuinely threatens to seize control over our state
apparatus and foist upon us a form of government to which we would not consent . That fact alone distinguishes our current war on
terrorism from Lincolns quest to preserve the Union against secession.40 Second, this we-must-protect-the-Homeland answer is far too
convenient as a conversation stopper. When the Bush Administration= National Security Strategy document avers that the only path to safety is the path of
action, we ought to ask what global arrangements are contemplated through that path of action. When that
document announces that this nation will act, it surely cannot suffice to say that the goal is merely eliminating a threat to attain security. All empires and empire-seeking nations engage in
aggression under the rubric of self-defense and the deployment of noble-aims rhetoric. These justifications carry no genuine meaning but are devices of the powerful and the privileged, with
how is it that
the acquiescence and often encouragement by a frightened populace, to quell unsettling questions from dissenters within the society.41 Stop and think for a moment,
the nation with the most formidable military might --the beneficiary of the hugest imbalance in military
power ever in world history--is also the nation that professes to be the most imperiled by threats
throughout the world, often threatened by impoverished peasant societies (Vietnam, Nicaragua, El Salvador, Chile, Granada,
etc.)?42 An empire must always cast itself as vulnerable to attack and as constantly being under attack in
order to justify its own military aggression. This is most acutely true when the empire is a democracy
that must garner the consent of the populace, which explains why so much of governmental rhetoric
concerning global affairs is alarmist in tone. The point is that quandaries over constitutional interpretation --ought we
be prudential, or are other techniques more closely tied to the text the only legitimate mode of constitutional adjudication-- may very well mask what may be the
most urgent issue of all, which concerns what exactly this nations true identity is at this moment in world history, what it is
that we are pursuing. Whereas Sanford Levinson has courageously argued that too many people >venerate= the Constitution and use it as a kind of moral
compass,43 which leads to a certain blindness, I raise for consideration an idea that Hamdi suppresses, through its narrative techniques, which is that too
many people venerate this nation without any genuine consideration of the particular way we have,
since World War II, manifested ourselves as a nation . I join Levinsons suspicion that our Constitution is venerated as an idea, as an abstraction,
without much thought given to its particulars. It is important to be open to the possibility that the same is true with regard to
our nation--the possibility that we venerate the idea of America (undoubtedly worth venerating), but remain (willfully?)
ignorant of the particulars of our actual responsibility for the health of the planet and its inhabitants .44 To
openly consider such issues is not anti-American--an utterly absurd locution--for to suggest that it is amounts to a denial that U.S. actions (as opposed to rhetoric that leeches off of the promise
and ideal of America) can be measured by some yardstick of propriety that applies to all nations.45 The very idea of a yardstick of propriety requires a prior acceptance of two ideas: one,
that we are part of something larger, that we are properly accountable to others and to that larger circumstance; and two, that it is not a betrayal or traitorous for a people within a nation to
look within itself.46 Issacharoff and Pildes, the most prominent process theorists, observe that process jurisprudence may be inadequate to address the risk that we might succumb to wartime
our desire for security and

hysteria.47 I would broaden that observation so as to be open to the possibility that the risk goes beyond just wartime hysteria, that
military victory, rooted in our repudiation of a genuine universal yardstick of propriety that we willingly
apply to ourselves (often called American exceptionalism48)--which means that security and military victory are not ipso
facto the same thing--could easily slide us into sanctioning a form of sovereignty that is dangerously
outmoded and far out of proportion to what circumstances warrant . Process jurisprudence supposedly has the merit of putting the
balance of security and liberty into the hands of the democratic institutions of our government. But what it cannot bring into the field of vision--and what is absolutely banished from view in
the democratic culture generally, the public sphere of that culture,

Hamdi--is the possibility that the democratic institutions themselves, and perhaps even
have been corrupted so severely as to reduce process jurisprudence to a shell game .49 More specifically, the formal
processes of governmentality responding to crisis is judicially monitored, but the mythos of our national
identity, particularly the idea that every international crisis boils down to the unquestioned fact that the United
States at least endeavors to act solely in self defense and to promote some benevolent goal that the
entire world ought to stand behind, is manufactured and thus some hegemonic pursuit in this global war on terror remains not just
juridically ignored, but muted and marginalized in much of our public discussions about it.50 Under process
jurisprudence, it is the wording of a piece of legislation, not the decoding of the slogan national
security, that ultimately matters. And under process jurisprudence, fundamental decisions have already been made --
fundamental decisions concerning the nature of our global ambitions and the way we will pursue them --before the
judiciary can confront the so-called security-liberty balance , which means that the analytical deck has been stacked by the time the justiciable
question---that is, what we regard as the justiciable question---is posed. Stacking the analytical deck in this way reduces the Court members to the role of technicians in the service of whatever
is it true that in the case of

pursuit the sovereign happens to choose.51 This is why it is worth asking what many might regard as a naive, if not tendentious, question:
Hamdi and other post-9/11 cases, the judiciarys quandary over allocation of power is actually in the
service of genuine security, meaning physical safety of the populace? Does the seemingly obvious answer that we seek only to protect
the safety of our communities against naked violence blind us to a deeper ailment within our culture? Is it possible that the allocation of power , at bottom, is
rooted in a dark side of our Enlightenment heritage, an impulse within Legality that threatens us in a
way similar to the Thanatos drive Freud identified as creating civilizations discontent ?52 Perhaps Hamdi itself, as a
cultural document, signals yet another capitulation to the impulse to embrace a form of means-ends rationality that supports the Enlightenment drive to control and subdue.53 Perhaps what
Hamdi shows is that 9/11 has not really triggered a need to recalibrate the security-liberty balance, but has actually unleashed that which has already filtered into and corrupted our culture
Enlightenments dark side, as the Frankfurt School understood it54and is thus one among many cultural documents that ought to tell us we are not averting a new dark age, but are already in
it, or at least, to borrow a phrase from Wendell Berry, that we are leapfrogging into the dark. 55 It is impossible, without the benefit of historical distance, to answer these questions with
they are worth confronting, since the fate of so many people depends on it,
what amounts to comforting certitude. But
given our unrivaled ability and frightening willingness to use military force . Our cultures inability to ask such questions in any
meaningful way, as opposed to marginalizing those who plead for them to be confronted, is somewhat reminiscent of how early Enlightenment culture treated scientific endeavors. Science,
during the rise of Enlightenment culture, rebuffed the why question, banished it as a remnant of medieval darkness, because the why-ness of a certain scientific pursuit suggested that certain
The whole cultural mindset of the Enlightenment was to jettison precisely such a suggestion. That cultural mindset
domains of knowledge were bad, off-limits, taboo.
produced a faith all its own, that all scientific pursuits, and by extension all human quests for knowledge, will in
the end promote human flourishing. It has taken the devastation of our planet to reveal the folly of that
faith, a blind-spot in the Western mind. It may turn out, as a sort of silver lining on a dark cloud, that the
terrorism arising from Islamic jihadists may do something similar.
2NC---Rights Link
Exercise of rights causes alienation and abstraction
As soon as we begin to look for it, we find this substitute connection throughout legal thought in what we might
call the latent content of rights themselves. By representing our alienated performances as exercises of
the rights to freedom of speech, freedom of contract, equality of opportunity, good faith cooperation, and so on, we "make it the
law" that these performances be conceived as embodying the qualities that would characterize genuine
connection. While at the purely rational, or manifest, level, these abstract rights signify only the universally allowed
possible actions available to each individual in suspended form (we imagine we "have" these possible actions, and in
acting "exercise" them, through a process of simple deduction 24), at the irrational, or latent, level they link the totality of our
current alienated experience with the realization of desire as a collective fantasy. To the extent that these legal
images of our existing social life produce mere fantasies of connection, it seems accurate to say that through them we "use" our
desire for connection to legitimize our real absence of connection, just as patriotism is often used to
produce a feeling of unreal solidarity in order to deny our real experience of a lack of solidarity . Yet, as with
patriotism, our production of these legal images in common from our dispersed and withdrawn locations reveals our residual ontological bond.
Although we are absorbed in a collective fantasy, we are actually still together insofar as we are
"watching the same movie."
Discourse of rights is unproductive in the legal sphere---it cannot transcend conflict

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

Olsen 84 (Frances, Acting Professor of Law, University of California at Los Angeles. B.A. 1968, Goddard
College; J.D. 1971, University of Colorado; S.J.D. 1984, Harvard University, Statutory Rape: A Feminist
Critique of Rights Analysis, Texas Law Review, Volume 63, Number 3, November 1984, pp. 387-432,
The claim that women have rights may be descriptive, hortatory, or analytic. As description, it expresses a set of
established social practices that are fairly decent for women. The claim may also refer to legal procedures that will
activate certain government institutions on behalf of women ."1 As exhortation, the statement that women
have rights is an assertion about the kind of society we want to live in, the kind of relations among
people we wish to foster, and the kind of behavior that is to be praised or blamed . The assertion that women
have rights is a moral claim about how human beings should act toward one another. On a personal level, to claim a right is to
assert one's self-worth, to affirm one's moral value and entitlement . It is a way for a woman to make a claim about
herself and her role in the world.'2 This claim has a positive emotional content that should not be trivialized; it would be difficult and
unprofitable to drain the word "right" of its emotive value.' 3 As
an analytic tool, the concept that women have rights
seems powerful but in practice it turns out not to be helpful; it cannot answer any difficult questions.
Women's right to freedom of action conflicts with their right to security ; their right to substantive equality
conflicts with their right to formal equality .' 4 Only by ignoring at least half the rights that could be
asserted can rights rhetoric even appear to solve concrete problems. This conflict between rights becomes even more
apparent if we consider men's rights to freedom and security. If we recognize these multiple rights claims and try to
"balance" the conflicting rights or to choose between them, we wind up talking politically about how we
want to live our lives, not abstractly about rights . In the following subparts, I consider a variety of rights arguments used by
feminists. The critique of rights relates to these arguments in various ways. In some cases, the critique is irrelevant to the rights claim. In a few
cases, the critique is misguided. Often, however, the critique is correct; rights
analysis is indeterminate and assertions of
women's rights do not achieve concrete advances in the status of women. For this reason, some feminists have
stopped relying on rights claims and begun criticizing rights analysis.
Rights claims undermine collective political action---every specific right is contingent to

a particular society
Tushnet 84 (Mark, Professor of Law, Georgetown University Law Center. A.B. 1967, Harvard University;
M.A. 1971, J.D. 1971, Yale University, An Essay on Rights, Texas Law Review, Vol. 62, No. 8, May 1984,
pp. 1363-1403, Accessed 7/1/15)//LD
The Left always has been fascinated by technology as the means by which all social problems will be overcome. But it is not technology
alone that can make incoherent the claim to a right to reproductive choice as we now think of it. Suppose that
education about contraceptive devices were widespread and that the devices themselves were readily
available. Suppose also that no stigma attached to being or bearing an illegitimate child . Suppose finally that people
shared a concept of health and illness that made pain and discomfort a natural part of life , something that
simply ran its course and that ought not be cured unless the sick person's life were threatened by the illness. These conditions would
require no dramatic changes in our present society , and indeed many people today already hold these attitudes. None of
them requires elimination of existing structures of male domination . Suppose finally that pregnancy were
understood by a large majority of the people as something like an untreatable flu that lasts for nine months but that
has no long-term consequences, or as a disfiguring and moderately painful condition that some people choose to have and that others have
visited upon them. This description may omit other necessary social conditions,' 8 but the point should be clear. The
society I have
sketched possesses Rawls' circumstances of justice, and it is not, as neolithic society is, wildly discontinuous
from our own. One can imagine a path from here to there that includes no violent upheavals, no elimination of all discord. In that
society, asking whether a woman has a right to an abortion would be like asking our contemporaries
whether we have a right not to get the flu.' 9 2. The Generalization.- The inductive program whose first step I have just sketched
would show that every specific right is just as contingent on social and technological facts as the right to
reproductive choice.20 There is no reason to believe that the program cannot be executed. If it can, it will show that the set of
rights recognized in any particular society is coextensive with that society. The conditions of the society define
exactly what kind of rights-talk makes sense, and the sort of rights-talk that makes sense in turn defines what the
society is. When someone objects to an act as a violation of a right, the ensuing dialogue either involves a
claim that the challenged act is inconsistent with some "deeper" commitments that the actor has-and who is to
resolve that claim?-or deals with what kind of society we ought to have . If both sides can identify enough openness in the
existing structure of rights to make plausible arguments that a right is or is not involved- that the "deeper" commitments "really" mean
something they may talk as if they were debating about what kind of society actually exists. But as the next section shows, the
indeterminacy of rights claims means that the debate is always about what the society is and what it
ought to be. In some social contexts, the party of humanity may be helped by the mutual illusion that the discussion is only about what is.
Perhaps that is how observers in the capitalist heartland would like to construe the "unions in Poland" question. But I doubt that the members
of Solidarity see it that way. In March 1964 five black men tried to use a segregated public library. When they were denied service, one sat down
in a chair in the reading room while the others stood quietly nearby. Or, the five men occupied the library.2' In December 1982 a group of
homeless men pitched tents in Lafayette Park across from the White House. At night their lack of any place to sleep other than the tents brought
home to the public the terrible consequences of its penny-pinching. Or, at night they fell asleep.22 Can
anyone seriously think that
it helps either in changing society or in understanding how society changes to discuss whether the black
men and the homeless men were exercising rights protected by the first amendment? It matters only
whether they engaged in politically effective action. If their action was politically effective, we ought to establish the
conditions for its effectiveness, not because those conditions are "rights" but because politically effective action
is important.
Rights arent real concepts---the State only exists as individuals grant it power
My own view is that it
is not possible to pursue an investigation of this type without using a method that
allows us to reexperience the very phenomena that need to be investigated , in a way that brings to light essential
aspects of these phenomena that are concealed from us in our everyday conscious activity. This effort to critically reexperience the phenomena
of everyday life with an eye to illuminating their hidden meanings is commonly called the phenomenological method,2 and its value for showing
how law is "constitutive" of our social experience becomes apparent the moment we try to grasp what "the law" actually is. For
example, to say that the law is "a set of rules and principles" could suggest that it is a thing made up of other things, but by
reexperiencing the way these rules and principles normally appear to us when we use them, we "recognize" that they are not
things but ideas. And if we once again reexperience our everyday use of these ideas, we discover through a new recognition that they
form part of a whole complex of images, including a "State" that "creates" the rules and "rights" that we
"have" because these rules "grant them to us." But what, then, is this "State" and how can "it" create
something, since it appears to be only an image; and how can "rights" be granted to me by rules, since I
appear to be thinking them into existence? To answer these questions, we must reexperience these ideas and images once
again so as to gain a still clearer sense of their experiential quality (for example, I see that the State appears to be "above" me
and rights appear to suggest "possible actions that I am allowed to do") . It is through the circular repetition of this
process-supported by a critical intuition that allows us to transcend the way these phenomena normally appear in our unreflective
consciousness-that we gradually can unveil their concealed everyday meaning. And when we realize that we routinely speak these ideas and
images to each other while also thinking them in some way "together" and yet "by ourselves," we can begin to form an understanding of how
the law is actually constitutive of our social existence.
Rights-talk protects the privileged and obstructs progressive legislation

Tushnet 84 (Mark, Professor of Law, Georgetown University Law Center. A.B. 1967, Harvard University;
M.A. 1971, J.D. 1971, Yale University, An Essay on Rights, Texas Law Review, Vol. 62, No. 8, May 1984,
pp. 1363-1403, Accessed 7/1/15)//LD
2. Rights as HarmfuL-It
is not just that rights-talk does not do much good. In the contemporary United States,
it is positively harmful. (a) An example: the first amendment .- In 1924, Felix Frankfurter wrote an article for the New
Republic arguing that the due process clause of the fourteenth amendment should be repealed.72 On the negative side, he argued, the courts
were using the clause to thwart the enforcement of socially beneficial programs adopted through the regular processes of democratic
government. On the positive side, the American polity had reached the point at which regular democratic processes could be counted on to
protect the interests in fairness with which the due process clause was properly concerned. The balance between harm and
necessity tilted in favor of repealing the clause; the occasions for its proper use were rare enough to be
outweighed by the opportunities for its abuse. I sketch here a parallel argument regarding the first amendment. Although I will
concentrate on the negative side of the argument, its positive component, such as it is, should not be forgotten. The first amendment
has replaced the due process clause as the primary guarantor of the privileged. Indeed, it protects the
privileged more perniciously than the due process clause ever did . Even in its heyday the due process clause stood in
the way only of specific legislation designed to reduce the benefits of privilege. Today, in contrast, the first amendment stands as a
general obstruction to all progressive legislative efforts. To protect their positions of privilege, the
wealthy can make prudent investments either in political action or, more conventionally, in factories or
stocks. But since the demise of substantive due process, their investments in factories and stocks can be regulated by legislatures. 73 Under
Buckley v. Valeo 74 and First National Bank v. Bellottl 75 however, their investments in politics-or politicians-cannot be regulated significantly.76
Needless to say, careful investment in politics may prevent effective regulation of traditional investments. The
commercial speech
cases similarly protect the privileged in the name of the less privileged. Virginia State Board of Pharmacy v. Virginia
Citizens Consumer Council, Inc.,7 7 the origin of contemporary doctrine, considered a state law prohibiting advertising of drug prices. The Court
held that the law deprived consumers of information that was central to their informed participation in a market economy.78 Of course the law
at issue was a "bad, old-fashioned" regulation designed to protect an industry against competition.79 But once let loose, commercial speech
doctrine ravaged "new" regulation as well. In Central Hudson Gas & Electric Corp. v. Public Service Commission, the Court invalidated an effort
to regulate advertising promoting the use of energy. 80 Central Hudson can be seen more broadly as obstructing legislative attempts to regulate
the way in which advertising and other kinds of messages shape public consciousness about what our problems are, what solutions would be
reasonable, and why some things are reasonable and others are not.8' Thus, for example, when
proposals for social control of
investment can be dismissed as utopian, the commercial speech cases converge with the campaign
finance cases. These cases are unequivocally pernicious uses of the first amendment . I take it that most liberals
agree. Often they want to treat the decisions as aberrations, simply wrong decisions that depart from the true meaning of the first amendment.
To the extent that they have conceded the validity of the indeterminacy critique, however, that response ought to embarrass them. But even
more important, wrong
or right the decisions exist as part of the contemporary use of the first amendment,
which we are trying to evaluate pragmatically in light of the political interests of the party of humanity .
Score several points for the disutility critique.
Rights are constitutive of legalism they are the agent of the law
Buonamano 98 (Roberto, lecturer at University of Technology, Sydney. The Economy of Violence:
Derrida on Law and Justice (June 1998), Ratio Juris vol. 11 no. 2,
http://onlinelibrary.wiley.com/doi/10.1111/1467-9337.00083/pdf)
2. The nature of right assumes an indeterminate and equivocal status in Derridas writings. At one point in Force of Law Derrida equates the
term juste (translated as just) in one of Pascals Penses (It is just that what is just be followed (my emphasis)) with right (But this must
be followed is right) (Derrida 1992b, 10). At another point he translates droit as right or law (Derrida 1992b, 13); the conjunctives right
or law appear frequently in the essay, apparently evading a definitive distinction between the two terms. Further, the terms right and law
occasionally appear as synonyms (distinct from conjunctives), one cryptically replacing the other (To address oneself to the other in the
language of the other is, it seems, the condition of all possible justice, but it is not only impossible but even excluded by justice as law
(droit), inasmuch as justice as right seems to imply an element of universality (my emphasis) (Derrida 1992b, 17). There
is a sense in
which right operates as a mediating factor between law and justice . To speak of the just law, to
attempt access to the law, as the inaccessible, one has only the discourse of rights at ones disposal.
Derrida goes some way to implying this in his reference to the laws of literature. To understand a text as a text, writing as literature, amounts to
achieving a consensus between readers. This consensus depends upon a system of laws and conventions, which are both of the essence of the
text and the tools for interpretation. The laws found are manifested through certain presuppositions: the texts identity (singularity and unicity),
author (distinct from the characters) and narrative (related events) (Derrida 1992a, 18487). At one point Derrida conceptualises these
presuppositions as rights; hence, articulation of the rights of identity, authorship and narration is the means by which a reader attempts access
to the text, that is, to, and through, an interrogation of its laws and conventions. We
may say that rights are as necessary to
law as the law is the source of the maintenance of rights. We might not perceive the law as a door, an
access, were it not for the mediation of rights . For all that, rights derive their ontological strength from
law, and cannot thus be separated from it , notwithstanding the temptation to align right with justice,
with an alternative discourse empowered with the critique of law. Whilst Kafkas countryman initially
perceives his relation to law as one of right to access, the right to engage the law in his peculiar story, to
access the rights which the law ensures (the law, he thinks, should be accessible at all times and to
everyone) (Kafka as quoted in Derrida 1992a, 183), he is confronted with the unexpected difficulties of an
indeterminate number, and indeterminately increasing strengths, of doorkeepers; he is thus confronted with the
realisation that rights do not constitute an entity that is independently possessed and thus permits
access to law, but rather are the agent of the law, bound up with its transcendence, merely offering the
desire for engagement with it.
2NC---Courts Link
SCOTUS cant create real surveillance change---inevitably legitimizes congressional and
executive actions
Balkin 8 (Jack M., Knight Professor of Constitutional Law and the First Amendment, Yale Law School,
1/1/06, The Processes of Constitutional Change: From Partisan Entrenchment to the National
Surveillance State, Fordham L. Rev. 75 (2006): 489-497, Accessed 7/5/15)//LD
Five years ago, we offered a theory of how constitutional change and constitutional revolutions occurred, which we called the theory of "partisan entrenchment."'
Much has happened in the subsequent half-decade, and we are grateful for this opportunity to offer an update of our thoughts, together with some amendments to
our initial formulation. By far the most important amendment is to draw out in more detail how the development of constitutional doctrine
by courts occurs within the broader framework of changes in constitutional regimes, which include
changes in institutions, legislation, and administrative regulation. The forces of democratic politics drive these
regime changes, and the major actors are not courts but the political branches . Although courts may
initially resist these changes, in the long run, they cooperate with them, shape their contours, and legitimate them
through the development of constitutional doctrine. In the second half of this essay, we describe an emerging regime of institutions
and practices that we call the "National Surveillance State," which, we think, represents the major constitutional development of our era. The National
Surveillance State responds to the particular needs of warfare, foreign policy, and domestic law
enforcement in the twenty-first century . That such a state is emerging has become clear in the wake of 9/11 and debates about the War on
Terror. However, it is not limited to the specific problems posed by terrorism, and key elements have been in place for some time. The courts will help
set the constitutional contours of the National Surveillance State, but much of their work will consist of
statutory interpretation and administrative review. Most of the apparatus of the National Surveillance State will be
developed by Congress and particularly by military and civilian bureaucracies within the executive
branch. Although in the past several years the Republican Party has had the primary responsibility for shaping the institutions and practices of the National
Surveillance State, both major political parties will participate in its construction . How the National Surveillance State develops
will depend on the contingencies of politics and the results of future elections, which, of course, will produce new judicial appointments. 2 The courts will
bless and legitimate these developments , much as they legitimated the rise of the administrative and
regulatory state and the national security state in the middle of the twentieth century . The initial formulation of our
theory consisted of four basic points: (1) by installing enough judges and Justices with roughly similar ideological views
over time, Presidents can push constitutional doctrine in directions they prefer; (2) partly for this reason the Supreme
Court tends, in the long run, to cooperate with the dominant political forces of the day; (3) not all Presidents are
equally interested or equally effective in entrenching their views in the judiciary, and Presidents face different opportunities and obstacles that may enhance or limit
their success; (4) finally, significant
changes in judicial doctrine usually reflect larger institutional changes-like the
growth of the administrative state-and broader political forces . We now explain each of these features of our theory in more
detail.
2NC---Congress Link
The Surveillance State inevitably shifts power from Congress to the President---
legislative restraint doesnt solve
1/1/08, The Constitution in the National Surveillance State, Minnesota Law Review 93.1, Accessed
7/5/15)//LD
From a constitutional perspective, the

National Surveillance State will probably shift institutional power and authority
from Congress to the presidency. There is no serious possibility of completely forestalling this shift,
which, after all, can be said to have been underway at least since the beginning of World War II . Indeed, the
political sociologist Harold Lasswell first defined the "garrison state" in 1941 as one in which "the specialists on violence are the most powerful group in society."'124
By 1961, in his famous "farewell address," President Eisenhower, himself one of the most distinguished military officers of World War II, warned his fellow citizens of
the potential dominance of a "military-industrial complex" that was transforming American politics. 125 Rather, the
only questions are how much
more executive aggrandizement will occur and whether new institutions can be adapted to prevent the
inevitable risks that will accompany the shift toward ever-increasing surveillance . 126 The first is the risk of harm to
individual privacy and civil liberties. The second is the inevitable dangers of concentrating too much power in one branch of government without accountability and
transparency. The third risk, which stems from the second, is the danger of informational insularity, in which the executive is unable or unwilling to acknowledge and
assimilate new information that requires it to reshape and redirect its plans. Some years ago Irving
Janis coined the term "groupthink" to
refer to institutional tendencies toward insularity , and recent work in behavioral psychology has reinforced
these concerns. 127 One advantage of a system of separated powers, especially if one of the competing institutions includes strong individuals from the
opposition political party, is that the other branches, because of their natural competition, consistently force new information and impose hard-learned lessons on
the others. From this perspective,
a constitutional system is also a system of information gathering and a system of
learning. But if one branch-the presidency-need pay no attention to the others, or can thoroughly
dominate them through appeals to party loyalty, as was largely the case during the first six years of the Bush Administration, then it
will not be forced to confront the recalcitrant information about the world that the other branches have
the incentive and the opportunity to provide . The National Surveillance State arises from a real concern: the enhanced need for processing
information about the outside world and reacting appropriately to it given the changes in foreign affairs and warfare. The danger is that the concentration of power
in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and
worrisome example. The need for the National Surveillance State arises from war and foreign policy, but its
consequences will reverberate
throughout domestic politics. Courts will play a role in determining the boundaries of this emerging
constitutional construction, but for the most part , we predict, they will legitimate and bless it, much as they
legitimated and blessed the administrative state, the welfare state, and the national security state in
previous years. As we shall note below, there is no particular reason to view the debate over the National Surveillance State as truly "partisan." For better or
for worse, there may be no meaningful division between the Democratic and Republican Parties with regard
to the imperatives for, and the broad outlines of, the National Surveillance State. The difference between the two major
political parties, we think, will consist of fairly marginal disputes about how best to implement the new forms of governance, what kinds of accountability and
transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Still, even if some form of
the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes.
2NC---Alternative
2NC---Alternative Solvency
The alternative is a politics of resistance challenging militarized surveillance---radical,
collective interrogation of institutions
Giroux 4 (Henry A., PhD, Professor of Education at Boston Univesrity, "War on Terror, The Militarising of
Public Space and the Culture in the United States, Third Text, Vol. 18, Issue 4, 2004, pp. 211-221,
As the forces of militarisation are ratcheted up within multiple spaces in the body politic, they increasingly
begin to produce the
political currency of what begins to look like proto-fascism in the United States. To expose and resist such an ideology
should be one of the primary responsibilities of intellectuals, activists, parents, youth, community members, and others
concerned about the fate of democracy on a global scale. Working both within and outside traditional public spheres, artists, community
activists, writers, and educators can expose the ideology of militarisation in all its diversity and how it risks turning the United States into a military state while at the
same time undermining crucial social programmes, constitutional liberties, and valuable public spaces. According to Arundhati Roy, this
new politics of
resistance demands: Fighting to win back the minds and hearts of people. . . . It means keeping an eagle
eye on public institutions and demanding accountability. It means putting your ear to the ground and listening to the whispering of
the truly powerless. It means giving a forum to the myriad voices from the hundreds of resistance movements
across the country which are speaking about real things about bonded labor, marital rape, sexual preferences, womens wages,
uranium dumping, unsustainable mining, weavers woes, farmers suicides. It means fighting displacement and dispossession and the relentless, everyday violence of
abject poverty. Fighting it also means not allowing your newspaper columns and prime-time TV spots to be
hijacked by their spurious passions and their staged theatrics, which are designed to divert attention
from everything else.42 Progressives everywhere have to reinvent the possibility of an engaged politics
and real strategies of resistance. This suggests not only working through traditional spheres of political contestation, such as elections or union
struggles or various means of education. Collective struggle must combine the tasks of a radical public pedagogy with
massive acts of nonviolent, collective disobedience. Such acts can serve to educate, mobilise, and remind
people of the importance of struggles that change both ideas and relations of power. By making militarisation visible
through the force of words and peaceful resistance, politics can become both meaningful and possible as a contested site
through which people can challenge both locally and through international alliances the obscene
accumulation of power symptomatic of the increasing militarisation of public space that is spreading both throughout the US and across the globe.
Arundhati Roy is right in her incessant and courageous call to globalise dissent but if dissent is to work it must have a focus that cuts
across empires, nation states, and local spaces, to the heart of a clear and present danger posed to
democracy and social justice. Challenging militarisation in all of its expressions is a direct strike at the
heart of a policy that has exceeded democracy and now formed a dreadful pact with a creeping and
dangerous authoritarianism. We find ourselves in the midst of a war globally, not simply a war against terrorism but also a war against democratic
solidarity in which a democratic future both at home and abroad stands in the balance.
Institution-oriented politics fail our alternative politics must seek to work outside of
the law
at American University in Washington, DC, Politics of Postanarchism (2010), Edinburgh University
Press, pp. 107-109)
Central to anarchism, as we have seen, is the repudiation of state authority. The state is seen as a violent institution of domination as a
structure which sustains and intensifies other hierarchies and relations of power and exploitation, including economic relations. The
state is
always accompanied by a statist mind-set or political logic which affirms the idea of the necessity and
inevitability of the state, particularly at revolutionary junctures, and prevents us thinking beyond it. Yet
thinking beyond the state is something we must do. Indeed, I see this as being the central task for radical politics today. As
Badiou also recognises, the state, and the failure to transcend or escape its thrall, is one of the fundamental
problems of radical politics: More precisely, we must ask the question that, without a doubt, constitutes
the great enigma of the century: why does the subsumption of politics, either through the form of the
immediate bond (the masses), or the mediate bond (the party) ultimately give rise to bureaucratic
submission and the cult of the State? 5 What must be explained, in other words, is the relation that ties us to the state and which
leads to the perpetuation of state power. Like the anarchists, Badiou sees the state as more than simply an institution or
series of institutions; it is also a certain relationship of domination to which people are bound through
mechanisms like parliamentary democracy or organisations like the vanguard party. This is why, for Badiou,
there is a certain link between the party and the state the revolutionary party is a centralised and disciplined organisation structured around
the aim of seizing state power; indeed, he refers to it as if it were the one entity the party-state. 6 This critique of the state and the party has
clear resonances with anarchism. As we saw in Chapter 3, anarchists regard the party as an authoritarian structure which is organised around
the future goal of gaining state power; indeed, the party is a microcosm of the state itself, and an instance of the state even before it gets into
power. If
radical politics is to escape the pitfalls of state power and its inevitable authoritarianism, it must
also eschew the form of the party. We also find further parallels with anarchism in Badious understanding of the state and its
relation to society. In Badious analysis, the state is seen as a certain way of representing a social situation, a way of including and counting as
one say through categories of citizenship, practices such as voting the multiple elements or parts of that situation. Here, Badiou maintains,
much like Stirner, that the
state has no regard for the individual, for differences; 7 it simply incorporates the
individual as an anonymous element in an overall structure, through the ordering and assigning of places
and roles. We could say, for instance, that the states surveillance of public places, its obsession with identification
and information gathering, its management of crowds and movements of people, are measures designed
to ensure that everyone stays put, that everyone is counted, that nothing escapes its incorporation.
Furthermore, according to Badiou, while the state is a re-presentation of a situation structured by a particular set of social relations say those
of bourgeois society with its class hierarchies and capitalist economic exchanges at the same time it is also distinct and separate from it,
forming a kind of excrescence. For Badiou, however, the problem with the Marxist analysis of the state is that by focusing on this point
of excess on seeing the state as a coercive apparatus that can simply be seized in a revolutionary
upheaval and later suppressed is that the state is much more intransigent and inexorable than Marxists
imagined, and that the revolution would simply lead to a changing of the guard : This is because even if the route of
political change . . . is bordered by the State, it cannot in any way let itself be guided by the latter, for the State is precisely non-
political, insofar as it cannot change, save hands, and it is well known that there is little strategic
signification in such a change. 8 Instead, radical politics must bear witness to the event, in which is revealed
what Badiou calls the void of the situation: that which is not counted or formally included in the
situation, its radical and destabilising excess. 9 I shall return to this idea of the event and its political consequences later; but it
would appear at this stage that there are certain parallels with anarchism in Badious approach to the question of the state in revolutionary
politics. The idea that the Marxist seizure of state power will produce only a changing of the guard is, as we saw in Chapter 3, precisely the same
warning given by anarchists in the nineteenth century. Rather than the state having a class or political character so that if the right class
controlled it its oppressive character would be transformed the state is, as Badiou puts it, non-political in the sense that it cannot change in
this way. In anarchist terms, this refers to the way that the state has its own specific structural logic of domination and self-perpetuation that is
not reducible to class, and that cannot be displaced simply because representatives of a different class are at the helm. So, anarchists would
share Badious point that what
is needed is a different form of politics which is not guided by the state : that is,
which does not have as its aim the revolutionary seizure of state power through the vanguard party, but
rather which seeks to overcome state power through the construction of a different set of relations. In
other words, there is a need for a politics situated outside the state. Indeed, Badiou talks about the need for a politics that puts the State at a
distance. 10 This
might take the form of non-party political organisations which shun involvement in
parliamentary processes and which focus on specific issues, such as the status and rights of illegal
migrants, 11 or an autonomous commune where new, egalitarian relations are made possible and whose
existence constitutes a fundamental rupture with state-ordered society. 12
Aff
Top Shelf
Perm
The permutation is an act of deconstruction it acknowledges the finitude of
calculability as the basis for responsibility and political action
Popke 3 (E. Jeffrey, Department of Geography, East Carolina University. Poststructuralist ethics:
subjectivity, responsibility and the space of community (2003), Progress in Human Geography vol. 27
no. 3, pp. 298-316, http://myweb.ecu.edu/popkee/Poststructuralist%20Ethics.pdf)
VII The politics of deconstruction Within geographys increasing engagement with poststructuralist theory, there have recently been a number
of discussions of deconstruction (see Barnett, 1999). Most accounts describe deconstruction as a means of exposing the paradoxes,
contradictions and elisions which undermine the purported coherence of philosophical or conceptual systems (Dear, 1988; Barnes, 1994).
Others have drawn on deconstruction to consider the importance of context in the creation of meaning and interpretation (Dixon and Jones,
1998; Barnett, 1999). For the most part, these authors draw upon Derridas early works, and especially those dedicated to writing and textuality
(e.g., Derrida, 1976; 1988). Taken together, they suggest that deconstruction can be seen as a form of intervention , a
strategy to highlight the instability of meaning, and thereby to multiply the potential for alternative
understandings. As Doel (1994: 1051) puts it, deconstruction affirms a movement of perturbation, turmoil, and
dislocation . . . [it] is the affirmation of destabilization on the move. Although this destabilizing impulse is undoubtedly
important, I want to suggest that deconstruction can be given a more political, and hence ethical, inflection than
many authors do. In a series of more recent texts, Derrida has suggested that deconstructions movement of destabilization
can serve as both a critique of the normative foundations of international law and politics and also a
means of addressing our responsibility for the other. Indeed, Derrida (1990: 945) has made the provocative claim that
deconstruction is justice. We can begin to unpack this by noting that, within the discourses of modernity, the political has become
circumscribed, limited to a discrete set of institutional practices, which are themselves supported by juridical and territorial norms.
Deconstructions ethico-political purchase then, like its philosophical effect, is a result of an intervention
that aims to destabilize the grounds of authority for these norms, to show that law, constitution, state
territorialization, human rights and so on are ultimately founded on what Derrida (1990: 943) terms a
violence without ground. For this reason, Derrida notes, law, like any system of grounding or authority, is inherently deconstructible.
Deconstruction, by destabilizing the grounds of authority for international politics, opens the terrain to a
new definition of the political, which would move beyond the metaphysics of sovereignty. What is
needed, Derrida (1999: 221) suggests, is: a dimension of the political divested of everything which for better but
especially for worse, in our modernity has welded the political to the ontological (in the first place, to a certain conception of
effectivity or present being of the universal cast in terms of the state, and of cosmopolitical citizenship or the International cast in terms of the
Party). This ungrounding of the political may appear as a form of nihilism, in which all arguments and positions have equal validity, leading to a
condition of anarchy or political stasis. Yet I would suggest instead that deconstruction
offers the potential to recast the
political on the basis of our responsibility to respect the event of the decision. As Derrida puts it (1999: 240):
[political commitment] depends, at every instant, on new assessments of what is urgent in , first and foremost,
singular situations, and of their structural implications . For such assessment, there is, by definition, no preexisting criterion
or absolute calculability; analysis must begin anew every day everywhere, without ever being guaranteed by prior knowledge. It is on this
condition, on the condition constituted by this injunction, that there is, if there is, action, decision and political responsibility repoliticization
[emphasis original]. The
lack of any normative grounding for the decision does not mean that we need not
decide. On the contrary, political responsibility is called for only because there is no way to guarantee
the justness of the decision, because its outcome remains undecidable. Far from being a foreclosure of
the political, then, the ethics of deconstruction would re- politicize or, as Derrida says elsewhere (1996:
85), hyper-politicize, disseminating the moment of political decision across infinite contexts (Derrida, 1995: 273): if I
speak so often of the incalculable and the undecidable its not out of a simple predilection for play nor in order to neutralize decision: on the
contrary, I believe there is no responsibility, no ethico-political decision, that must not pass through the proofs of the incalculable or the
undecidable. Otherwise, everything would be reducible to calculation, program, causality. This point is worth emphasizing: to
assert that
the decision is ultimately undecidable does not mean that there can be no such thing as truth, right or
good. It means, rather, that if we purport to know in advance the specific content of such notions, then
the event of the decision is divested of its political content , it is simply deduced from an existing body of knowledge . . .
[as] by a calculating machine (Derrida, 1999: 240). Deconstruction, then, affirms the necessity to judge, to analyse, to
make decisions, in the context of an event that is conditioned by our inexhaustible responsibility to the
other (Derrida, 1997: 18): That is what gives deconstruction its movement , that is, constantly to suspect, to
criticize the given determinations of culture, of institutions, of legal systems, not in order to destroy
them or simply to cancel them, but to be just with justice, to respect this relation to the other as justice
[emphasis added]. A deconstructive ethics would in this way incite a political responsibility that first and foremost opens us to the (face of) the
other, in which we surrender our sovereignty in a form of vigilant passivity to the call of the other (Levinas and Kearney, 1986: 29). This passive
opening has been denounced by some as simply a form of patience or tolerance which justifies inaction. Thus Bridge (2000: 526) argues that,
for Levinas, responsibility need not result in action and Peet (1998: 242) charges that poststruc- turalism advocates a passive affirmation . . .
[that] waits for an-Other always to come that is, conveniently never there so nothing ever needs doing in terms of political practice. But I
read the passivity of ethical responsibility differently, as a form of opening to limitless possibility in the
absence of hubris, an orientation that derives, not from indifference, but from the recognition that I
cannot calculate everything, predict and program all that is coming, the future in general, etc., and this
limit to calculability or knowledge is also, for a finite being, the condition of praxis, decision, action and
responsibility (Derrida, 1999: 249). This responsibility is an exposure to the event, in its singular and incalculable context, through which
the call of the other enjoins an ethics and politics of decision.
Perm solves best---totalizing rejection sacrifices immediate suffering---short-term legal

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

that the US itself could not exist without the past and continuing genocide of indigenous peoples in particular does not strike liberal legal reformists as a contradiction. Bell suggests that
midst of these contradictions if one foregoes the fantasy that the law is morally benevolent or even
neutral. In doing so, more possibilities for strategic engagement emerge. For instance, in the Racial Preference Licensing Act, Bell suggests that
rather than criminalise racial discrimination, the government should allow discrimination, but tax it. Taxes accrued from this discrimination would then go into an equality fund that would support the educational and economic
interests of African-Americans.14 As I have argued elsewhere, the law enforcement approach has been similarly limited in addressing the issues of gender violence when the majority of men do, or express willingness to engage in,
it.15 As a result, criminalisation has not actually led to a decrease in violence against women.16 Anti-violence activists and scholars have widely critiqued the supposed efficacy of criminalisation.17 As I will discuss later in this essay,
Native women in particular have struggled with the contradictions of engaging the legal system to address the legacies of colonial gender violence. While there is growing critique around criminalisation as the primary strategy for
addressing gender violence, there has not been attention to what other frameworks could be utilised for addressing gender violence. In particular, what would happen if we pursued legal strategies based on their strategic effects
rather than based on the moral statements they propose to make? DISTRUSTING THE LAW Aside from Derrick Bell, because racial and gender justice legal advocates are so invested in the morality of the law, there has not been
sustained strategising on what other possible frameworks may be used. Bell provides some possibilities, but does not specifically engage alternative strategies in a sustained fashion. Thus, it may be helpful to look for new
possibilities in an unexpected place, the work of anti-trust legal scholar Christopher Leslie. Again, the work of Leslie may seem quite remote from scholars and activists organizing against the logics of settler colonialism. But it may be
the fact that Leslie is not directly engaging in social justice work that allows him to disinvest in the morality of the law in a manner which is often
difficult for those who are directly engaged in social justice work to do. This disinvestment, I contend is
critical for those who wish to dismantle settler colonialism to rethink their legal strategies. In Trust, Distrust, and Anti-Trust, Christopher Leslie
explains that while the economic impact of cartels is incalculable, cartels are also unstable.18 Because cartel members cannot develop formal relationships with each other, they must develop partnerships based on informal trust mechanisms in order to overcome the famous prisoners dilemma. The prisoners dilemma, as described by Leslie, is one in which two prisoners are
arrested and questioned separately with no opportunity for communication between them. There is enough evidence to convict both of minor crimes for a one year sentence but not enough for a more substantive sentence. The police offer both prisoners the following deal: if you confess and implicate your partner, and your partner does not confess, you will be set free and your
partner will receive a ten-year sentence. If you confess, and he does as well, then you will both receive a five-year sentence. In this scenario, it becomes the rational choice for both to confess because if the first person does not confess and the second person does, the first person will receive a ten-year sentence. Ironically, however, while both will confess, it would have been in both
of their interests not to confess. Similarly, Leslie argues, cartels face the prisoners dilemma. If all cartel members agree to fix a price, and abide by this price fixing, then all will benefit. However, individual cartel members are faced with the dilemma of whether or not they should join the cartel and then cheat by lowering prices. They fear that if they do not cheat, someone else will
and drive them out of business. At the same time, by cheating, they disrupt the cartel that would have enabled them to all profit with higher prices. In addition, they face a second dilemma when faced with anti-trust legislation. Should they confess in exchange for immunity or take the chance that no one else will confess and implicate them? Cartel members can develop mechanisms
to circumvent pressures. Such mechanisms include the development of personal relationships, frequent communication, goodwill gestures, etc. In the absence of trust, cartels may employ trust substitutes such as informal contracts and monitoring mechanisms. When these trust and trust substitute mechanisms break down, the cartel members will start to cheat, thus causing the
cartel to disintegrate. Thus, Leslie proposes, anti-trust legislation should focus on laws that will strategically disrupt trust mechanisms. Unlike racial or gender justice advocates who focus on making moral statements through the law, Leslie proposes using the law for strategic ends, even if the law makes a morally suspect statement. For instance, in his article, Anti-Trust Amnesty, Game
Theory, and Cartel Stability, Leslie critiques the federal Anti-Trusts 1993 Corporate Lenience Policy that provided greater incentives for cartel partners to report on cartel activity. This policy provided automatic amnesty for the first cartel member to confess, and decreasing leniency for subsequent confessors in the order to which they confessed. Leslie notes that this amnesty led to
an increase of amnesty applications.19 However, Leslie notes that the effectiveness of this reform is hindered by the fact that the ringleader of the cartel is not eligible for amnesty. This policy seems morally sound. Why would we want the ringleader, the person who most profited from the cartel, to be eligible for amnesty? The problem, however, with attempting to make a moral
statement through the law is that it is counter-productive if the goal is to actually break up cartels. If the ringleader is never eligible for amnesty, the ringleader becomes inherently trustworthy because he has no incentive to ever report on his partners. Through his inherent trustworthiness, the cartel can build its trust mechanisms. Thus, argues Leslie, the most effective way to destroy
cartels is to render all members untrustworthy by granting all the possibility of immunity. While Leslies analysis is directed towards policy, it also suggests an alternative framework for pursuing social justice through the law, to employ it for its strategic effects rather than through the moral statements it purports to make. It is ironic that an anti-trust scholar such as Leslie displays less
trust in the law than do many anti-racist/anti-colonial activists and scholars who work through legal reform.20 It also indicates that it is possible to engage legal reform more strategically if one no longer trusts it. As Beth Richie notes, the anti-violence movements primary strategy for addressing gender violence was to articulate it as a crime.21 Because it is presumed that the best
way to address a social ill is to call it a crime, this strategy is then deemed the correct moral strategy. When this strategy backfires and does not end violence, and in many cases increases violence against women, it becomes difficult to argue against this strategy because it has been articulated in moral terms. If, however, we were to focus on legal reforms chosen for their strategic
effects, it would be easier to change the strategy should our calculus of its strategic effects suggest so. We would also be less complacent about the legal reforms we advocate as has happened with most of the laws that have been passed on gender violence. Advocates presume that because they helped pass a moral law, then their job is done. If, however, the criteria for legal reforms
are their strategic effects, we would then be continually monitoring the operation of these laws to see if they were having the desired effects. For instance, since the primary reason women do not leave battering relationships is because they do not have another home to go, what if our legal strategies shifted from criminalising domestic violence to advocating affordable housing?
While the shift from criminalisation may seem immoral, women are often removed from public housing under one strike laws in which they lose access to public housing if a crime (including domestic violence) happens in their residence, whether or not they are the perpetrator. If our goal was actually to keep women safe, we might need to creatively rethink what legal reforms would
actually increase safety. REVOLUTIONARY REFORMS As mentioned previously, there has been insufficient evaluation of the strategic effects of legal strategies opposing gender violence. However, the work of Native anti-violence scholar and activist, Sarah Deer, points to possible new directions in engaging legal reform for the purpose of decolonisation. Deer notes that the issues of
gender violence cannot be separated from the project of decolonisation. For instance, currently, tribal governments are restricted to sentencing tribal members to three years in tribal prison for even major crimes such as rape. Much of the focus of the anti-violence movement has been on increasing the number of years tribal governments can incarcerate members. Because of this
effort, the Tribal Law and Order Act of 2010 increased the length of sentences from one to three years. However, Deer notes that prior to colonisation, violence against women was virtually unheard of, even though tribes did not have prisons.22 Instead, tribes utilised a number of social mechanisms to ensure safety for women and children, and none of these mechanisms are
prohibited by federal legislation. Because the federal government restricts the amount of prison time allowed for sexual offenders, tribes primarily call on the federal government to expand tribes ability to incarcerate. However, as a variety of scholars have noted, expanded sentencing has not actually led to decreased violence.23 Thus, rather than focusing their attention simply on
incarceration, Deer suggests that tribes look to pre-colonial measures for addressing violence and begin to adapt those for contemporary circumstances.24 At the same time, Deer notes that it is not necessarily a simple process to adapt pre-colonial measures for addressing violence. Unfortunately, many of the alternatives to incarceration that are promoted under the restorative
justice model have not developed sufficient safety mechanisms for survivors of domestic/sexual violence. Restorative justice is an umbrella term that describes a wide range of programs that attempt to address crime from a restorative and reconciliatory rather than a punitive framework. As restorative justice frameworks involve all parties (perpetrators, victims, and community
members) in determining the appropriate response to a crime in an effort to restore the community to wholeness, restorative justice is opposed to the US criminal justice system, which focuses solely on punishing the perpetrator and removing him (or her) from society through incarceration. These models are well developed in many Native communities, especially in Canada, where
the legal status of Native nations allows an opportunity to develop community-based justice programs. In one program, for example, when a crime is reported, the working team that deals with sexual/domestic violence talks to the perpetrator and gives him the option of participating in the program. The perpetrator must first confess his guilt and then follow a healing contract, or go
to jail. The perpetrator is free to decline to participate in the program and go through the criminal justice system. In the restorative justice model, everyone (victim, perpetrator, family, friends, and the working team) is involved in developing the healing contract. Everyone is also assigned an advocate through the process. Everyone is also responsible for holding the perpetrator
accountable to his contract. One Tlingit man noted that this approach was often more difficult than going to jail: First one must deal with the shock and then the dismay on your neighbors faces. One must live with the daily humiliation, and at the same time seek forgiveness not just from victims, but from the community as a whole []. [A prison sentence] removes the offender from
the daily accountability, and may not do anything towards rehabilitation, and for many may actually be an easier disposition than staying in the community.25 These models have greater potential for dealing with crime effectively because, if we want people who perpetuate violence to live in society peaceably, it makes sense to develop justice models in which the community is
involved in holding him/her accountable. Under the current incarceration model, perpetrators are taken away from their community and are further hindered from developing ethical relationships within a community context. However, the problem with these models is that they work only when the community unites in holding perpetrators accountable. In cases of sexual and
domestic violence, the community often sides with the perpetrator rather than the victim. As Deer argues, in many Native communities, these models are often pushed on domestic violence survivors in order to pressure them to reconcile with their families and restore the community without sufficient concern for their personal safety.26 In addition, Native advocates have sometime
critiqued the uncritical use of traditional forms of governance for addressing domestic violence. They argue that Native communities have been pressured to adopt circle sentencing because it is supposed to be an indigenous traditional practice. However, some advocates contend that there is no such traditional practice in their communities. Moreover, they are concerned that the
process of diverting cases outside the court system can be dangerous for survivors. In one example, Bishop Hubert OConnor (a white man) was found guilty of multiple cases of sexual abuse but his punishment under the restorative justice model was to participate in a healing circle with his victims. Because his crimes were against Aboriginal women, he was able to opt for an
Aboriginal approach an approach, many argue, that did little to provide real healing for the survivors and accountability for the perpetrator. Deer complains that there is a tendency to romanticise and homogenise traditional alternatives to incarceration. First, she notes traditional approaches might, in fact, be harsher than incarceration. Many Native people presume that
traditional modes of justice focus on conflict resolution. In fact, Deer argues, penalties for societal infractions were not lenient they entailed banishment, shaming, reparations, physical punishment and sometimes death. Deer notes that revising tribal codes by reincorporating traditional practices is not a simple process. It is sometimes difficult to determine what these practices were
or how they could be made useful today. For example, some practices, such as banishment, would not have the same impact today. Prior to colonisation, Native communities were so close-knit and interdependent that banishment was often the equivalent of a death sentence. Today, however, banished perpetrators could simply leave home and join the dominant society. While tribes
now have the opportunity to divest from the US colonial system, many Native women remain under violent attack. They may need to use the federal system until such time that more advanced decolonisation becomes possible. Thus Deer advocates a two-fold strategy: 1) The short-term strategy of holding the federal government accountable for prosecuting rape cases; and 2)
encouraging tribes to hold perpetrators accountable directly so that they will eventually not need to rely on federal interference. This approach can be misread as a simple formula for reform. However, it is important to remember that the project of prison abolition is a positive rather than a negative project. The goal is not to tell survivors that they can never call the police or engage
the criminal justice system. The question is not, should a survivor call the police? The question is: why have we given survivors no other option but to call the police? Deer is suggesting that it is not inconsistent to reform federal justice systems while at the same time building tribal infrastructures for accountability that will eventually replace the federal system. If we focus simply on
community accountability without a larger critique of the state, we often fall back on framing community accountability as simply an add-on to the criminal justice system. Because anti-violence work has focused simply on advocacy, we have not developed strategies for due process, leaving that to the state. When our political imaginaries are captured by the state, we can then
presume that the state should be left to administer justice while communities will serve simply as a supplement to this regime. To do so, however, recapitulates the fundamental injustice of a settler state that is founded on slavery, genocide and the exploitation of immigrant labour. Further, we are unable to imagine new visions for liberatory nationhood that are not structured on
hierarchical logics, violence and domination. We face a dilemma: on the one hand, the incarceration approach for addressing sexual/domestic violence promotes the repression of communities of colour without really providing safety for survivors. On the other hand, restorative justice models often promote community silence and denial under the rhetoric of community restoration
without concern for the safety of survivors. Thus, our challenge is to develop community-based models that respond to gender violence in ways that hold perpetrators accountable. Unfortunately, in this discussion advocates often assume only two possibilities: the criminal justice system or restorative justice. When anyone finds faults with the restorative justice model, it is assumed
that the traditional criminal justice approach must be the back-up strategy. Deers approach, by contrast, is to work with the criminal justice system while continuing to develop effective strategies for addressing violence. These will eventually eliminate the need to rely on the criminal justice system. Of course, the trap of pursuing reforms is that they can create investment in the
current US legal system and detract from building new systems of governance that are not based on violence, domination and control. At the same time, we are not going to go from where we are now to revolution tomorrow. Thus, it becomes important to strategise around what may be called revolutionary reforms. Other abolitionists have argued that the only reforms that should
be supported are those that diminish the criminal justice apparatus. Other abolitions have argued that this approach leaves people vulnerable to the crimes of the powerful, such as rape and domestic violence.27 It is in this context that we can understand Deers current projects. She has worked on building tribal infrastructure by encouraging and assisting tribes to develop tribal civil
protection orders. Her strategy is not so much based on the rationale that civil protection orders will in themselves provide protection for women. Rather, by developing these orders, tribes gain the practice of developing their own systems for addressing violence. Deer notes that this is one area that is not likely to be interfered with by the US federal government. At the same time, it
is not an approach that is directly tied with investing tribes in the project of incarceration. Thus, it becomes a reform that tribal communities may adopt now as they develop creative responses for addressing violence. The reason for this suggested reform is that many tribal governments incorrectly think that the federal government is already adequately addressing gender violence
and do not take initiative to address it themselves.28 In the end, the importance of Deers recommendation is not so much an investment in that particular strategy, but the manner in which it encourages us to think of short-term strategies that are not simply based on increased incarceration, strategies that will more likely fall under the federal radar screen so that tribal communities
have more time to practice new ways of supporting accountability for violence. This will encourage communities to develop better decolonial practices in the future. As Deer notes, a long-term vision for radical change requires both immediate measures to address sexual violence and a forward-looking effort to dismantle the culture of rape that has infiltrated tribal nations.29 At the
same time, many other Native activists are engaging community accountability strategies that do not work with the current system at all. These strategies are not broadly advertised because these activists do not want to gain the attention of federal authorities. Yet, many communities have developed informal strategies for addressing authorities. For instance, one man who assaulted
a relative was banished from his community. As he was simply able to move to the city, tribal members would follow him to various work places, carrying signs that described him as a rapist. Again, this may be a strategy that we may or may not support. But the point is that it is important to engage the experimental and jazzy approaches for developing community-based
Those who call for decolonisation often do not

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

However, the works of Derrick Bell, Christopher Leslie, and Sarah Deer, while working in completely different areas of the law, point to a different approach.
assumption that the law will reflect our morals and instead seek to use the law for its strategic effects .
In doing so, we might advocate for laws that might in fact contradict some of our morals because we
recognize that the law cannot mirror our morals anyway. We might then be free to engage in a
relationship with the law which would free us to change our strategies as we assess its strategic
effects. At the same time, by divesting from the morality of the law, we then will also simultaneously be free to
invest in building our own forms of community accountability and justice outside the legal system. Our
extra-legal strategies would go beyond ceremonial civil disobedience tactics designed to shame a system that is not capable of shame. Rather, we might focus on actually building the political power to create an alternative system to
the heteropatriarchal, white supremacist, settler colonial state.
The perm is the only ethical solution our excessive responsibility to the Other
compels us to risk using the law to approach justice
3. The third proposition explicates three assertions: the law as force, the silence of this force, and the self-preserving quality of the silence.
Derrida remarks that the phrase to enforce the law or enforceability of the law reminds us that law
is always authorised force, a force that justifies itself or is justified in applying itself (Derrida 1992b, 15). The
auxiliary verb is in the quote (law is always authorised force) is crucial: The relation is not one of law in the service of
force, as Derrida makes clear, nor of force in the service of law; it is rather that of law as founding,
justifying and preserving force (the force in, of and as law, simultaneously). It is for this reason that legality and legitimacy are
interdependent: The law functions to legitimise itself, and legitimacy is only meaningful in the context of, and necessarily presupposes, a system
of laws. Law, in its instituting and founding momentthe origin of authorityconsists of a performative and therefore interpretative violence
that is itself neither just nor unjust (Derrida 1992b, 13). Derrida sees this as its mystical foundation: the silence in the violent structure of the
founding act. The instituting violence of law defies the justice discourse, for it is ungrounded violence, authority that rests upon itselfthe
legality, hence legitimacy, of itself. One cannot ground (legitimise) what is the very act of self-legitimating. This mystical silence, mystical in the
sense that as silence it nonetheless reiterates and propagates law, speaks the law over and over again, exists at the origin of law and its
conditions. So, and this is the beginning and very condition of justice and deconstruction, law is deconstructible, either because it is founded,
constructed on interpretable textual strata, or because its ultimate foundation is by definition unfounded (Derrida 1992b, 14). A
deconstruction of law, Derrida explicates, does not aim at an effacement of law before the ethico-politico-
juridical question of justice; instead, it positively renders justice possible by adopting an excessive and
incalculable responsibility to the question. This responsibility is that of memory or recollection: a
recollection of law as history, the origins and directions of laws, rights and norms, the grounds of our
conceptual, theoretical or normative apparatus surrounding justice; hence, an understanding of the
limits of law and right and what is at stake (what is being asked of us, what justice demands) in speaking of the just and unjust
(Derrida 1992b, 1920). This responsibility, this purposive stance towards the ethical, can only exist with the
experience and experiment of the aporia (Derrida 1992c, 41). The aporetic experience is necessarily experimental: Where
knowledge precedes the path it is illuminating, our actions are merely programmatic; one can act responsibly only because knowledge has not
heralded its arrival, because we are faced with an impasse that must be tested. To do justice, therefore, is to test the aporetic
experience of justice, that is, to assume a responsibility for it. To deconstruct the law is to take seriously the incestuous
relation between law and justice, rather than to attempt to justify the division and thus master the opposition. Law and justice must be
understood as inexorably and nonsystematically linked: It turns out that droit claims to exercise itself in
the name of justice and that justice is required to establish itself in the name of a law that must be
enforced (Derrida 1992b, 22). Derrida provides us with some of the aporias involved in this (dis-)juncture of law and justice. First, the
exercise of justice presupposes freedom to act and self-willed behaviour. So, the judge, who in judging is
required to follow a law or prescription, qualities inherent in the very definition of decision (there is a sense
in which every decision is necessarily legal, though in hierarchical conflict) is nonetheless expected to create a fresh
judgment: that is, he is [they are] expected to both follow a law and confirm and reaffirm it by a free
adoption, a reinstituting act of interpretation that treats each case as idiomatic and not peremptorily
decidable (Derrida 1992b, 2223). A decision cannot be considered just if it unproblematically follows rules, nor if there is no reference to
particular rules or the prescience of general principles; the former amounts to mechanistic calculation, whilst the latter amounts to suspending
the decision, since it is confined to the judges interpretation. Paradoxically, at no moment can we say in the present (Derrida emphasises these
words) that a decision is just, only that it is legal or legitimate, in conformity with a state of law, with the rules and conventions that authorise
calculation but whose founding origin only defers the problem of justice (Derrida 1992b, 23). If
law cannot be exercised without a
decision (which necessarily cuts and divides), and if the decision is rightly understood as the multiplicitous
programme of learning, reading, understanding, interpreting and calculating the rule, the decision to
decide (to invoke the law in the name of justice, and to risk a conclusion with inevitably legal and
justiciable consequences) must belong to the incalculable, the undecidable. Derrida understands this undecidable
as an experience heterogeneous and independent of calculation and the rule, whilst obliged to take account of law and the
rule in submitting itself to the impossible decision (the just decision). The free decision, that which is not merely
the application or unfolding of a calculable process, presupposes the ordeal of the undecidable (Derrida 1992b, 24). And so we have a
second form of the aporia: This
ordeal of the undecidable lurks behind every decision , impelling itself as the
possibility of justice in the impossibly just decision. It is aptly represented as a ghost to reflect its double-binded relation to
the present: As the spectre it exists only in the present, and yet in the present it constitutes the memory of an experience that cannot fulfil
itself, in the present. The just decision cannot derive from the realised or unfolded calculation process, but it also cannot derive from the
suspension of the undecidable, since only a decision is just. The moment of the undecidable cannot be past or passedit exists, recurs, in
the present but only as the presentiment of its reality. It perpetually puts in doubt the achievement of the presently just decision.
Institutional analysis key to deconstruction

Caputo 97 (John D., Thomas J. Watson Professor of Religion Emeritus at Syracuse University,
Deconstruction in a Nutshell: A Conversation with Jacques Derrida (1997), Fordham University Press,
pp. 61-62)
Deconstruction is an analytic operation aimed at keeping thinking and writing alive , keeping them open to
surprise, by keeping on the alert to the institutions in which they are housed. If language is the house of being,
institutions are the house of language. That is why Derrida describes deconstruction as "an institutional practice for
which the concept of institution remains a problem" (DP 88). Indeed, we are apt to be misled by speaking of "housing" as if
the institution were merely external. Deconstruction is integrally, and not merely passingly or incidentally, devoted to an analysis of the way
philosophy functions in an institutional setting, of philosophy and literature in the "institu tion," as an institution or "establishment," as a socio-
politico-juridico institutional structure. For
institutional structures tend to harden over and to protect philosophy
from the restlessness and anarchic freedom of writing in which philosophy is inscribed. Instead of
protecting phi losophy, institutions can easily end up protecting us from philosophy. It has never been
true that deconstruction consisted in some merely "internal" and "apolitical" analysis of texts, isolated and
insulated from the institutions in which these texts are read and by which these read ings are monitored. For the institutional
"context" belongs integrally to the "general" text , the archi-textuality of which deconstruction is. the analysis. Institutions
reach all the way down into the so-called internal structure of the text, making the very distinction between in ternal and external questionable,
turning the inside out and letting the outside in. The
classical idea that institutions are merely external structures
having nothing to do with philosophy itself, in its internal essence, is a conservative illusion.
Deconstruction has always been a political and institutional analysis.
Legal reform is a crucial part of striving toward justice we must deconstruct, then
reconstruct the law
C. The Question of Revolt What are the implications of the economy of violence for the notion of law reform,
taken in its broadest sense (re-formation, re-institution of laws or a legal system)? I wish to address this question
in only a cursory way by merely raising the problematic relation of justice and revolt. It should not surprise that at the heart of each of
Derridas treatments of law is the question of revolt. We may interpret his reading of Kafkas Before the Law as,
amongst other things, an attempt to conceptualise the impossibility of direct engagement with law in its pure
form as implicating the necessary task of challenging, revolting against, its very presence. Similarly, we may
consider Derridas dedication to Nelson Mandela as a discussion of the stakes involved in bringing the premises of a
political-legal system into question, in an attempt to effect a transformation which seeks to efface its
foundations whilst aware of the inability to transcend the history of the existing and former political-
legal systems. More recently, we can read in Specters of Marx (Derrida 1994) an explicit desire to account for the legacy of Marxs
philosophical revolution, seeing it as indispensable to any critique of current political, legal and moral domains, particularly in light of the
hegemonic presence of global-economic and neo-liberal discourses. However, we should avoid the elementary conclusion
that revolt is the practice of justice. It is true that Derrida maintains a relation between justice and revolution, but this relation
cannot be reduced to the dominant theory-praxis paradigm. It may be that the act of revolt is, in certain circumstances, a condition for the
exercise of justice, perhaps even a pre-condition; nonetheless, they cannot be simplistically reconciled. Revolt
exists within law,
albeit at its limit, rather than beyond it. In this sense, the revolution is never anarchic , if this term is understood
in its ideological connotations.2 One cannot overturn fundamental laws or overthrow a legal system from
without, not because one cannot be outside a legal system, but because one cannot be outside the
order of law; at least, one cannot act (speak and decide with social ramifications) from beyond legal
order. We might say that revolt is at the end, not in a teleological sense but as a final act in a process of
affirmation of discontent, of a certain questioning of law. That is to say, revolt is the last point of this
questioning process, perhaps the final question itself. Revolution is neither the beginning nor the end of counter-violence
(whether or not this counter-violence is interpreted as Benjamins divine violence); it is rather the possibility of an event which, as possibility,
mediates the violence. And so, the act of revolt attacks the violent structure of law as it surrenders itself to the violence and appropriates it for
its own use. We are reminded of a statement Foucault makes on the topic of revolt: that the man who revolts is outside as well as inside history
(Foucault 1981, 6). We can replace the word history in this proposition with the history of law as violence. Of course, the importance for
Foucault of the man of revolt existing inside and outside history is that revolt introduces subjectivity into history: A delinquent puts his life into
the balance against absurd punishments; a madman can no longer accept confinement and the forfeiture of his rights; a people refuses the
regime which oppresses it (Foucault 1981, 8). The revolting person or people becomes a subject of history whilst suspending the history that
oppresses it. Although Derrida doesnt explicitly treat the issue of subjectivity, one can rethink the act of deconstruction, in its concern with the
adoption of responsibility towards history, as tracing the relation between a subject and the presence of law within that subject, and thereby
putting into question the justness of the subjects law-making actions, and ultimately the institution of law in its subject-forming mode. The
problematic of revolt is conterminous with that of justice. Just
as there is no pure justice, justice purified of juridical and
state (mythical) power, there is no pure revolution. This is not to deny the force of revolt in challenging
law and state; in fact, it is forceful precisely because it cannot be divorced from its relation to the self-
preserving violence of authority, and so is able to strike at this authority with the latters weapons. If we
accept, even tentatively, Derridas aporias on justice, we must appreciate that to revolt is not to re-make
history but to understand the history of law that survives and is revived in each act of revolution and
reconstruction.
Alt fails
Alt fails---the Surveillance State is inevitable---logical successor to the Security State
7/5/15)//LD
Late in 2005, the New York Times reported that the Bush administration had ordered the National Security
Agency (NSA) to eavesdrop on telephone conversations by persons in the United States in order to obtain information that might
help combat terrorist attacks.1 The secret NSA program operated outside of the restrictions on government
surveillance imposed by the 1978 Foreign Intelligence Surveillance Act (FlSA)2 and is thought to be only one of several such
programs. 3 In 2007, Congress temporarily amended FISA to increase the President's power to listen in on
conversations where at least one party is reasonably believed to be outside the United States. 4 In June 2008, Congress passed a new
set of amendments to FISA, which allow the President to enga ge in a broad range of electronic
surveillance without seeking warrants against particular individual targets of surveillance.5 At the same time, Congress effectively
immunized telecommunications companies that had participated in the secret NSA program . 6 In July 2007, New
York City announced that it planned to mount thousands of cameras throughout Lower Manhattan to monitor vehicles and individuals. 7 Some cameras will be able
to photograph and read license plates and send out alerts for suspicious cars.8 The system of cameras will link to a series of pivoting gates installed at critical
intersections, giving government officials the ability to block off traffic through electronic commands. 9 New York's new plan-called the Lower Manhattan Security
Initiative-is based on London's "Ring of Steel," a security and surveillance system around London's central core that features thousands of surveillance cameras. 10
New York is hardly alone;11 the Department of Homeland Security has been quietly channeling millions of dollars
to local governments around the country to create hi-tech camera networks that can be linked with
private surveillance systems. 12 Security Initiative reflect a larger trend in how governments do their jobs that predates the September 11, 2001
attacks and the Bush administration's declaration of a "war on terror."13 During the last part of the twentieth century, the U nited
States began developing a new form of governance that features the collection, collation, and analysis of information about populations
both in the United States and around the world. This new form of governance is the National Surveillance State . In the National Surveillance State,
the government uses surveillance, data collection, collation, and analysis to identify problems, to head
off potential threats, to govern populations, and to deliver valuable social services. The National Surveillance State is
a special case of the Information State-a state that tries to identify and solve problems of governance through the collection, collation, analysis,
and production of information. The war on terror may be the most familiar justification for the rise of the National
Surveillance State,14 but it is hardly the sole or even the most important cause. Government's increasing
use of surveillance and data mining is a predictable result of accelerating developments in information
technology. 15 As technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and private
parties will seek to use them. 16 The question is not whether we will have a surveillance state in the years to come,
but what sort of surveillance state we will have . Will we have a government without sufficient controls over public and private
surveillance, or will we have a government that protects individual dignity and conforms both public and private surveillance to the rule of law? The National
Surveillance State is a way of governing. It is neither the product of emergency nor the product of war. War and emergency are temporary conditions. The
National Surveillance State is a permanent feature of governance, and will become as ubiquitous in
time as the familiar devices of the regulatory and welfare states . 17 Governments will use surveillance,
data collection, and data mining technologies not only to keep Americans safe from terrorist attacks but also to prevent
ordinary crime and deliver social services .' 8 In fact, even today, providing basic social services-like welfare benefits-and protecting key rights-
like rights against employment discrimination-are difficult, if not impossible, without extensive data collection and analysis. 19 Moreover, much of the surveillance in
the National Surveillance State will be conducted and analyzed by private parties. 20 The
increased demand for-and the increased use
of-public and private surveillance cannot be explained or justified solely in terms of war or emergency . 21
The National Surveillance State grows naturally out of the Welfare State and the National Security State ;
it is their logical successor. The Welfare State governs domestic affairs by spending and transferring money and by creating government entitlements,
licenses, and public works. 22 The National Security State 23 promotes foreign policy through investments in defense industries and defense-related technologies,
through creating and expanding national intelligence agencies like the CIA and the NSA, and through the placement of American military forces and weapons
systems around the globe to counter military threats and project national power.
Alt cant solve---technological and bureaucratic imperatives make the Surveillance

State inevitable
7/5/15)//LD
One of the most important developments in American constitutionalism is the gradual transformation of the
United States into a National Surveillance State . This National Surveillance State is characterized by a significant increase in government investments in
technology and government bureaucracies devoted to promoting domestic security and (as its name implies) gathering intelligence and
surveillance using all of the devices that the digital revolution allows . Government agencies like the NSA can collect, collate, and analyze
vast amounts of conversations, e-mails, and Internet traffic between individuals within the United States and foreign countries, and, it now appears, substantial amounts of such
communications within the United States. 114 A series of technological developments have made this data collection and data
mining possible. High-speed computers, lower costs of telecommunication and computer storage, and complex mathematical algorithms allow computers to "recognize" patterns
in speech, telephone contact information, e-mail messages, and Internet traffic that might indicate possible terrorist or criminal activity. Government officials can
combine all of this information with vast amounts of consumer data collected by the government and
the private sector. Various private companies now employ business models based on collecting, collating, and analyzing consumer data from a wide variety of sources; they then
sell this data and analysis to other private parties and to the government. The National Surveillance State arose from a number of different
features whose effects are mutually reinforcing. The most obvious causes are changes in how nations conduct war and promote their national security.
As Philip Bobbitt has eloquently explained, the geopolitical demands of war and foreign policy often provide the impetus for
changes in domestic political arrangements, because the way that the state faces the world outside is
often reflected in the way that it faces its citizens ., 15 With the United States a likely target for future terrorist attacks, electronic surveillance, data
mining, and the construction of what Daniel Solove has called "digital dossiers,"' 16 have become increasingly important. Terrorist organizations can form loosely connected, geographically
amorphous collectivities that present formidable threats to the United States; they can employ weapons of mass destruction or, as in the case of the September 11 attacks, relatively low-tech
weaponry with suicidal zeal. New digital communications technologies allow terrorist organizations to band and disband at will, hide their identities, encrypt their communications, transfer
funds and resources, and gather allies in many different places around the world. Traditional, geographically organized adversaries in the form of nation-states have fixed locations that the
United States can threaten in order to deter attacks. Terrorist organizations, because they lack such fixed addresses, cannot be similarly deterred. They must be stopped as soon as their
activities and plans can be identified.This necessitates constant surveillance and processing of vast amounts of
information because of the expected costs of making even a single mistake in failing to identify a threat .
We caution, however, that the National Surveillance State is not simply a product of the September 11 attacks . Nor is it
necessarily a product of war. To begin with, it is by no means clear that the "War on Terror" is a war in the traditional sense. It is not even a long-term engagement with a small
group of identifiable adversaries as in the Cold War. Rather, what people now call the "War on Terror" is a sustained set of
interlocking strategies for dealing with new forms of global threats and new technologies of attack by a
host of different organizations, some sponsored by nation-states, and others acting more or less on their own. 117 Equally important to the
rise of the National Surveillance State are new technologies of surveillance , data storage, and
computation that arrived on the scene in the latter part of the twentieth century. These would have been produced whether or not the
United States was attacked on September 11, 2001. As soon as these technologies became widely available,
it was inevitable that governments would seek to employ them, both to enjoy their advantages and to
counter the dangers of the same tools in private hands . In particular, the Internet and digital information technologies have created new
opportunities for crime and new vulnerabilities for the general public, for financial institutions, and for government itself. The digitally networked environment makes possible new types of
crimes, like breaches of electronic security and electronic identity theft, while facilitating more traditional crimes like embezzlement, theft, and conspiracy. The digital age has altered the
technologies of crime and, concomitantly, the way that the state can respond to crime. Focusing on war as the primary cause of the National Surveillance State overlooks the fact that
surveillance technologies that help the state track down terrorists can also be used to track and prevent domestic crime. Once the state has these technologies in place for collecting foreign
intelligence, it can use the same technologies to protect its people from crime, attacks on the information infrastructure, and virtually any other domestic problem. After the state compiles data
on its citizenry-or purchases it from the private sector-it can use the information to promote a wide range of governmental policies, ranging from the delivery of health care services to tracking
Increased use of information in governance

down deadbeat dads and people who have failed to pay their license renewal fees and state property taxes.
makes governments and those who control information flows more powerful, which makes the
information ever more valuable to governments; this causes governments to invest even more heavily in
the collection, storage, and collation of data. These tendencies are spurred on by technological advances that increasingly lower the cost of
telecommunications, surveillance technology, data storage, and computation power. Thus, although the transition to the National Surveillance
State has been accelerated by the September 11 attacks and the Bush Administration's proclaimed War
on Terror, its rise is overdetermined by a host of different technological and bureaucratic imperatives.
Link Turn
Only reducing surveillance can reverse the tide of biopower permeating status quo
governmentality
There are a few sections of the Patriot Act that are worth discussing in order to demonstrate the modern state of exception, as well as its link to surveillance and the camp. Under Section 412 of the Act, entitled Mandatory
detention of suspected terrorists, the Attorney General has the power to certify that an alien meets the criteria of the terrorism grounds of the Immigration and Nationality Act, or is engaged in any other activity that endangers
the national security of the United States, upon a reasonable grounds to believe standard, and take such aliens into custody. The Attorney General must review the detention every six months and determine if the alien is to
remain in detention because of a continued risk to security. Butwhat remains ambiguous, and allows for the indistinction between law and
violence and between police and sovereignty, is this reasonable grounds to believe standard. Suffice it to say,
without going into greater depth, this standard is grounds for racial profiling and the detention of political opponents . Also, the
detention of aliens on a belief is the production of bare life, since it is the stripping of rights without
reference to a violation under normal law; in other words, these suspected terrorists are detained without having done anything wrong, but must be situated in the state of
exception camp for those who may threaten the normal force of the law this is the aforementioned void, or nonplace, of the law. Since these aliens cannot be detained under the normal law, a camp of
suspects must emerge in a national security emergency . What is also telling about this Act is that the ten Titles may be seen as
different governmental tactics, networked in one state of emergency act; Titles include, Enhancing Domestic Security against Terrorism, Protecting the Border, Strengthening the Criminal
Laws against Terrorism, and Increased Information Sharing for Critical Infrastructure Protection. Foucault would be quick to point out that this Act
characterizes the population conducting tactics that define governmentality: policing, disciplining, and
security. However, Title II, Enhanced Surveillance Procedures, not only becomes implicit in many of the other areas of the act that discuss intelligence and security, but also allows the Act
to go beyond the protection of the norm in a sovereign nation-state through foreign surveillance
provisions. Section 214 functions in collaboration with and amends several parts of the Foreign Intelligence Service Act 1978 (FISA) in order to allow for international surveillance activities in order identify suspected
terrorists: during periods of emergency (i.e. state of exception), the US invests itself with the power to collect foreign intelligence information not concerning a United States person or information to protect against international
The detention and surveillance of aliens continues though other

terrorism or clandestine intelligence activities (Sec. 214(b) (1)).
mechanisms of jurisprudence, which, as mentioned, are becoming normalised through bills, acts, etc .
that are not designed as state of emergency law per se . On 13th November 2001, George W. Bush issued a military order for the Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism; by certain this order means anyone believed to be associated with al Qaida (PoTUS, 2001). Like with Section 412 of the Patriot Act, suspected
terrorists are to be detained without a court order . Similarly, under the Terrorism Act 2000 in the UK, A constable may arrest without a warrant a person whom he
reasonably suspects to be a terrorist (Section 41(1)). As with the US, any person detained under this Act can remain in detainment following and pending a review (Schedule 8, Part II). The Disappearance of Citizenship4 What we
the Patriot Act and the Terrorism Act contain various

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

the United States has designated as a "terrorist organization," if that group is engaged in hostilities against the United States.
Patriot Act II, the government would be able to produce bare life with both aliens and American citizens
a process leading to the disappearance of citizenship by transforming the residents into foreigners within, a new sort of untouchable [homo sacer], in the transpolitical and anational state where the living are nothing more than
a permanent state of emergency creates a situation in which foreign residents

the living dead (Virilio 2005, 165). We have seen how
or visitors can be detained without a court order for an indefinite period of time ; even greater governmental
powers are now aiming at expanding this exposure to the pure power of the juridical-political system to
citizens as well. Citizenship and political significance are becoming less fundamental and inalienable rights
and more categorizations that are only maintained though blind adherence to so-called democratic
polices, which look more and more like a dictatorial structure (see: Arendt 1973).
Surveillance is key to modern governmentality---curtailment ruptures the state of

exception
Before we can even ask why a state uses surveillance mechanisms, we need to define what state structure we are talking about. Following
Foucault, governmentality
best describes our current political situation , as it is above all concerned with
managing the internal structure of the state according to a biopoliticization of the population, rather than
maintaining the power over life and death, as is characteristic of sovereign politics. Governmentality is literally an art of governing, in which the
population is conducted through various relations and tactics employed by the state, such as institutions, security, statistics, and surveillance.
So, governmentality is the structure in which surveillance can operate as one of the arms of state power.
When we move towards the juridical-political situation of the state of exception, we see another area in which surveillance plays a crucial
biopolitical role. The use of exceptional legal measures in order to protect the normal force of law is what
defines the state of exception. The normal law that is suspended is often that which guarantees the rights and the citizenship of
foreign and national citizens; thus, under an exceptional juridical situation, individuals with no political significance
are produced: bare life. The USA Patriot Act (among other documents) embodies this loss of rights,
production of bare life, and increased surveillance based on a perceived national threat . The state of exception,
Agamben argues, is becoming more and more the normal course of politics this is nowhere more exemplary than in the camp. The camp is the
place where bare life is produced and the exception becomes the rule. Yet, the Roman camp in Judea shows us that the emersion of surveillance
in a camp-state of exception- territory structure is nothing new. What
is primarily modern is not biopolitics (Foucault) or the camp
(Agamben), but the governmental control of the disappearance of citizenship . With digital technology, the erasure
of a definite here or there means that the localised camp is no longer a paradigmatic place where the
limit of the state of exception is realised; rather, the non-place of a population in constant movement is what defines the new
non-place of the city camp. Thus, surveillance is deeply imbedded in and necessary for the governmental system
that seeks to be instantly aware of any potential threats to the state so that it can quash those threats by
depoliticizing dangerous portions of the population and exposing them to the pure potentiality of the
management of life.
Surveillance allows management of life---reducing surveillance closes the potentiality

for universalization of bare life
One particular Jewish work camp in the Judea Desert , occupied and run by the Romans, was actually a complex
one large watchtower structure and two smaller structures downhill from
of pre-existing structures from the Hellenistic and Islamic periods. The site consists of
the watchtower . The layout of this Hellenistic site functioned as an ideal work camp quarry for the Romans, although it had originally been constructed as an Islamic burial ground and temporary shelter for travellers. A recent excavation of the camp (Yekutieli et
al. 2006) revealed a number of potsherds and heaths that were carbon-dated to the first and second century CE. Some of these remains were found along the slope of the tower, which contained a number of small (1x2m) rock shelters, while other remains were discovered on the summit
What is unique about this camp is the

of the tower, which, through a crevice, looks down over the slope and the other structures; these findings reveal that people were living in the shelters as well as at the summit.
way in which the territory is manipulated in order to allow for the surveillance of the workers. From the
lookout crevice at the top of the tower, one can see the entire landscape, without including the quarry, workers shelters, cooking areas, etc.,
being seen by anyone in those locations the . Further, the layout of the shelters on the slope allowed one to see no more than two other shelters at a time (ibid, 76). From these observations, we can see that
architecture of the camp was designed so as to allow for a panoptic power structure in which the
Romans could achieve the subjectivization of the detainees through their awareness of a potential
observer such surveillance structures have been
. This type of structure, which allows for an unseen seer to watch over individuals occupying a given territory, is nothing new in fact,
recorded from as far back as the Early Bronze Age (3000-2650 BC) (ibid, 78-85). However, these earlier surveillance systems were used in order to guard a territory against an attack, as with the lookout
What distinguishes the Roman work camp from other ancient surveillance mechanisms is
towers constructed at the top of castles.
the way in which is it integrated into, and in many ways the precondition for, the political structure that
creates the camp the state of emergency, in which normal law is suspended in order
. The encampment of rebellious Jews characterizes
to use any means necessary to protect the interest of the sovereign . Thus, the Jews in the camp must be removed from the political realm and treated as bare life that
this camp serves a paradigmatic example of affects of surveillance,

must be constantly monitored and exposed to the potentiality of violence. As we shall see,
insofar as it is the amalgamation of the state of exception, bare life, violence, law, biopolitics, territory,
and governmentality Governmentality
; not to mention that evidence of surveillance and camp structures that existed thousands of years ago demonstrates that none of these concepts are new and modern phenomena.
is able to function as the control of the population and the creation of bare life because it employs
surveillance as a crucial tactic in the management of life this is clearly presented in the Roman camp example. However, although many of the concepts and techniques we see at work in
The importance of a juridical political system that acts according to the

the camp are not fundamentally different today, not everything has remained the same.
state of exception, or suspension of the law, is evident in the emergence of recent totalitarian and
democratic permanent states of emergency the US have normalised the exception through the ; for example, UK and the
passing of laws (Terrorism Act, Patriot Act, etc.) that essentially nullify the application of normal laws
protecting human rights, while still holding them technically in force. exceptional laws go hand We see also that these
in hand with increased surveillance , both of which are tactics that establish control of the population. Yet what remains to be analysed is the relation(s) between surveillance, territory, and the state of exception how does
Surveillance must be regarded as the point at

surveillance allow for the rise of the state of exception and the camp? And, more broadly, how are all there concepts integrated in an art of government?
which the camp and the bare of the state of exception intersect in the governmental control of the
population. Defining the Terms: Foucault and Agamben Although Michel Foucault wrote a book (Discipline and Punish) that dealt extensively with one method of surveillance, the panoptic, his more useful contribution to the theory of surveillance comes from his study
of governmentality, or the art of governing. In the course of his 1970s lectures at the College de France, Foucault underwent a significant shift in the emphasis of his theory, moving from the powerterritory relationship of sovereignty to the politico-economic governmentality of
population; the concept of sovereignty concerned with maintaining power and territory is a dated pre-modern concept, and what needs to be analysed now is the governing of a population though various circulatory (that is, relational) mechanisms: it is not expanse of land that
what is emerging in Foucaults writings, beginning with

contributes to the greatness of the state, but fertility and the number of men (Fleury quoted in Foucault 2007, 323). In other words,
The History of Sexuality Vol 1, is the concept of biopolitics: the management of life rather than the
menace of death (Foucault 1990, 143). Broadly, what is taking place in Foucaults works and lectures in the mid to late 1970s is his description of the differences (not transitions) between sovereignty, discipline, and governmental management (Foucault
The essential goal of sovereignty is to maintain power, which is achieved when laws are obeyed and
2007, 107).
the divine right of the throne is reaffirmed . Power is the essential defining component of sovereignty, while government is more or less just an administrative component within the sovereign state a component
that is the function of the family; the family, oikos, in ancient Greece was the private management (government) of economic matters where the father ensured the security, health, wealth, and goods of his wife and children, while the polis was the public realm where man realised his
political significance in striving for the good life. The rise of government in the sixteenth century is marked by this family government model being applied to the state as a whole (ibid, 93), as well as by the rise of mercantilism - the former not realizing its full scope and application
until the eighteenth century and the latter being a stage of rasion dtat between sovereignty and governmentality. However, when the art of governing becomes the predominant goal of the state in the eighteenth century, the family is relegated to the position of an instrument and
population emerges as the main target (ibid, 108) of the government (territory is the main target of sovereignty insofar as a sovereign defines itself according to its territory, while government defines itself in term of its population). With population as the central concern for government,
other institutions and sites - such as territory, the family, security (military), police, and discipline - all become elements or instruments in the management of the population these biopolitical tactics are what primarily distinguish governmentality from sovereignty. Conduct and
Biopolitics is produced
Subjectivization Foucault wants to situate bio-power in the multiplicity of relations within the overarching structure of the state, and therefore not discard the notion of power but instead couch it in terms of governmentality.
in the relations between biological life and political power (bio-power), which is possible when a
population is confronted with and in relation to the biopoliticizing techniques of (not to be confused with disciplining) institutions, territory, police,
surveillance
security, and ; rather than positing a sovereign-people dialectic (which Agamben tends to do), Foucault wants to complicate the notion of biopolitics by accounting for a state that spreads it tentacles (Virilio 1997, 12) through its various instruments and
tactics. It seems as though, with the beginning of a governmentality discourse developing in the Security, Territory, Population course, Foucault feels he has said enough about biopolitics as such and can now move towards the art and techniques of governmental and subjective conduct,
what emerges is a theory of the top-down management of a population that is

in which biopolitics is implicit. Yet , on the one hand,
controlled through governmental mechanisms such as statistics-guided surveillance and police practices, and, on the other hand, the bottom-
up subjectivization of population through the regulation of actions confronted with state power relations; this may also be regarded as biopolitical population control and individualizing discipline, respectively. These two streams of governmentality surface in Foucaults later writings from
time to time, but he never clearly reconciles the art of government and subjectivization. This subjective conduct or governing the self is a self-disciplining that is made possible through the knowledge of oneself as the other, as the object of an unseen seer (as is discussed with the
panoptic model in Discipline and Punish). This self-conduct, however, is framed in terms of the problematic of government that uses the power relation techniques of governing others to govern themselves (Foucault 2000, 340-342); but again, where do these two points converge and
we must look to surveillance to answer this question

differ? It seems as though surveillance is certainly a . We know that
governmental technique for the management and control of the population , but we also see that subjectivization is only possible via surveillance, as just
mentioned with the panoptic model. However, panoptic surveillance is an ancient notion, developed at least as far back as EBII, sometime around 3000-2650BC (Yekutieli 2006, 78). The relation between the seer and the subject is no longer that of a physical perspective from a point fixe,
nor is it localised in a contained space, as with Benthams prison model. Rather, as Paul Virilio would argue, surveillance is making the traditionally confined space of the camp the very centre of the city. However, before examining the juridical-political applications of this notion, we must
Agamben seeks to further explore

understand Giorgio Agambens conception of biopolitics in terms of bare life and the state of exception. Redefining Biopolitics Following and completing Foucaults discussion of biopolitics,
the relation between state power and life in terms of sovereign power what affect(s) , not in terms of governmentality, but rather, . That is,
does the state have upon the lives of citizens in relations of power and control? In a sense, Agambens position is formulated in accordance with what
Arendt and Foucault failed to do: Agamben completes Arendts discussion of totalitarian power, in which a biopolitical perspective is altogether lacking (Agamben 1998, 4), and completes Foucaults discussion of biopolitics, which fails to address the most paradigmatic examples of
modern biopolitics, such totalitarianism and the camp. This revision of Arendt and Foucault is achieved through the exemplification of the state of exception and bare life, which find their ultimate realization in modern examples of the camp. But first, it is necessary to understand how
Agamben arrives at this conclusion. In Politics, Aristotle distinguishes between natural, simple life1 , Zo, and political life, bios. Zoe is private life confined to the home, oikos, while bios
is life that exists in the public (political) realm of the city, the polis ; the former is life regulated by the economy of the family, while the latter is good life regulated by the
Zo and bios are mutually exclusive

state. It appears, then, that , and man moves from an animal life to a distinct political life, as Aristotle seems to argue. Foucault picks up on this Aristotelian animal/political life when he writes
of the threshold of biological modernity (Foucault 1990, 143), in The History of Sexuality, and modifies it to reflect the transition from a politics of the power-limit of death to the politicization of biological (or, more accurately, zoological i.e. Zo-logical) life: For millennia, man remained
what
what he was for Aristotle: a living animal [Zo] with the additional capacity for a political existence [bios]; modern man is an animal whose politics places his existence as a living being in question (ibid). The distinction between Zo and bios is called into question;
were once two distinct forms of life are now indistinguishable biology has become political and politics
has become biological, giving rise to biopolitics . Agambens claim, however, is that Foucault, Arendt, and others have misread Aristotle; in interpreting Aristotle, they believe that the human capacity for
the simultaneous inclusion

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

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

notion is derived, by in large, from Carl Schmitts book Political Theology, as well as from a fairly extensive debate between Walter Benjamin and Schmitt concerning the nature of the state of exception.
suspension of law, which is usually instituted during a period of war or another state of emergency: The
Under the state of exception there

exception, which is not codified in the existing legal order, can at best be characterized as a case of extreme peril, a danger to the existence of the state, or the like (Schmitt 1922, 6).
becomes a threshold between law that is in the norm but is suspended and law that is not the norm i.e. not
in the state of exception there appears this ambiguous and uncertain zone in which
necessarily part of the juridical order but is in force; so,
de facto proceedings, which are themselves extra- or antijuridical, pass over into law, and juridical norms
blur with the mere fact that is, a threshold where fact and law seem to become undecidable (Agamben 2005, 29). What needs to be underlined here is the relation between the state of exception and bare life. This point is absolutely crucial for
the state of exception opens up the possibility of bare life and of the camp,
Agamben and for understanding the role of governmental surveillance:
where bare life is outside law but constantly exposed to violence and unsanctionable killing (Agamben 1994, 82).
Agambens position can be understood in the triadic relation state of exception-camp-bare life; the ultimate power of the sovereign, and the complete dissolution of democracy into totalitarianism two political systems that, according to Agamben, already have an inner solidarity (ibid,
10) happens at the point when the state of exception becomes the rule and the camp emerges as the permanent realization of the indistinguishability between violence and law, to which we all, as homines sacri, are exposed. The paradigmatic example is, of course, Nazi Germany; but
what remains to be seen is how this triad can be applied to our current political milieu. The Potentiality of/for Violence Perhaps the closest Agamben comes to discussing the relations between the state of exception and surveillance is his 11th January 2004 article in Le Monde, entitled,
No to Bio-Political Tattooing (Agamben, 2004). This article comes as a result of Agambens cancellation of a course he was scheduled to teach at New York University that March. The reason he cancelled the course was because he was denied entry to the US as a result of his refusal to
provide biometric data as part of post-9/11 US security measures. The resulting article is mostly a brief, simplistic version of his book Homo Sacer, but Agamben does imply that modern security and surveillance
techniques are emerging as the new paradigm (though not to the extent of the camp) of the state of exception, in which the
exception has become the rule : There has been an attempt the last few years to convince us to accept as the humane and normal dimensions of our existence, practices of control that had always been properly considered inhumane
no one is unaware that the control exercised by the state through the usage of electronic
and exceptional. Thus,
devices, such as credit cards or cell phones, h as reached previously unimaginable levels . (Agamben 2004) Electronic and biometric
The biopolitical implication of surveillance is the

surveillance are the tactics through which the government is creating a space in which the exception is routine practice.
universalization of bare life: These new control measures

History teaches us how practices first reserved for foreigners find themselves applied later to the rest of the citizenry (ibid).
have created a situation in which not only is there no clear distinction between private and political life,
but there is no fundamental claim, or right, to a political life as such not even for citizens from birth;
thus, the originary biopolitical act that inscribes life as political from birth is more and more a potential
depoliticization and ban from the political realm . We are all exposed to the stateless potentiality of a bare life excluded from the political realm, but not outside the violence of the law (and therefore still
Making people suspects is

included): states, which should constitute the precise space of political life, have made the person the ideal suspect, to the point that it's humanity itself that has become the dangerous class (ibid).
equivalent to making people bare life it is the governmental production (a Foucauldian governmentality rather than an Agambenian sovereignty I would argue)
of a life exposed to the pure potentiality of the state of exception : the sovereign ban, which applies to the exception in no longer applying, corresponds to the structure of
Surveillance is the technique that opens up this potentiality ,

potentiality, which maintains itself in relation to actuality precisely through its ability not to be (Agamben 1994, 46).
which allows for the normalization of the exception. the state of In this particular instance i.e. biometric data collection and surveillance in the US
exception as a permanent form of governmentality and the universalization of homines sacri has been
brought into existence though the USA Patriot Act2 and the Patriot Act II3. I have used the term potentiality a number of times precisely to point to the state
it is the potentiality to be stripped of

in which the citizens (or, more broadly, the population) of a number of countries find themselves. The potentiality I want to analyse can follow two directions:
citizenship, to be banned, to be abandoned to the law, and to be subjected to political violence, or it is

the potentiality for the government to exercise violence and exceptional law upon the population . So, this potentiality
violence becomes indistinguishable from

can be both negative and positive. Although surveillance and control in law or, more specifically, indistinguishable from -
the state of exception, what needs to be emphasised is that it is not a power relation of pure violence,
but rather, of potential violence violence is a function of the power
. It is important, as Benjamin notes in Critique of Violence, to understand that
mechanisms of the government (although Benjamin would probably say sovereign): the laws interest in a monopoly of violence vis--vis individuals is not explained by the intention of preserving legal ends but, rather, by that of
violence, when not in the hands of the law, threatens it not by the ends that it may pursue
preserving the law itself; that
but by its mere existence outside the law The state of exception arises when the population (Benjamin 1933, 136).
threatens to take violence away from the law the population are regulated by surveillance (rather than individuals per se)
for this norm to remain in force an indefinite period of state of exception is

methods, in order to ensure that the norm of the law is not threatened; and
often exercised, as we see with the example of the USA Patriot Act This politics . The American State of Exception Surveillance and the External Threat
of potentiality is created through the de facto laws of state of exception legislation like the Patriot Act .
it exemplifies the state of emergency referred to by Agamben et al.; the normal law
Looking at actual parts of the Act, we can see that
of the state is not abolished but its application is suspended so that it still technically remains in force (Agamben 2003, 31). As such, the suspension of the normal application of
the exception is that which must produce and guarantee the norm.
the law is done on the basis of its right of self-preservation (Schmitt 1985, 12), so that Obviously then
the state of exception is not intended to be anything more than a temporary safeguarding of normal law .
In fact, there can be no normal law without the state of exception: the state of exception allows for the foundation and definition of the normal legal order (Agamben 1999, 48). The use of the state of emergency to protect the normality of the legal order dates back at least as far as the
Roman Empire. Whenever the Senate believed the state to be in danger, they could implement the iustitium, which allowed for the consuls to take whatever measures they considered necessary for the salvation of the state (Agamben 2005, 41).
AT: Law Bad
Law Good
Reforms are possible and desirable---tangible change outweighs the risk of cooption
and is still a better strategy than the alt
Omi 13 (Michael, Berkeley ethnic studies professor, Resistance is futile?: a response to Feagin and
Elias, Ethnic and Racial Studies, 36.6, Taylor and Francis)
In Feagin and Elias's account, white racist rule in the USA appears unalterable and permanent. There is little sense that
the white racial frame evoked by systemic racism theory changes in significant ways over historical
time. They dismiss important rearrangements and reforms as merely a distraction from more ingrained
structural oppressions and deep lying inequalities that continue to define US society (Feagin and Elias 2012, p. 21).
Feagin and Elias use a concept they call surface flexibility to argue that white elites frame racial realities in ways that suggest
change, but are merely engineered to reinforce the underlying structure of racial oppression. Feagin and Elias
say the phrase racial democracy is an oxymoron a word defined in the dictionary as a figure of speech that combines contradictory terms. If they mean
the USA is a contradictory and incomplete democracy in respect to race and racism issues, we agree. If they
mean that people of colour have no democratic rights or political power in the USA, we disagree. The USA
is a racially despotic country in many ways, but in our view it is also in many respects a racial democracy, capable of being influenced
towards more or less inclusive and redistributive economic policies, social policies, or for that matter, imperial policies. What is distinctive
about our own epoch in the USA (post-Second World War to the present) with respect to race and racism? Over the past decades there has been a steady drumbeat
of efforts to contain and neutralize civil rights, to restrict racial democracy, and to maintain or even increase racial inequality. Racial disparities in different
institutional sites employment, health, education persist and in many cases have increased. Indeed, the post-2008 period has seen a dramatic increase in racial
inequality. The subprime home mortgage crisis, for example, was a major racial event. Black and brown people were disproportionately affected by predatory
lending practices; many lost their homes as a result; race-based wealth disparities widened tremendously. It would be easy to conclude, as Feagin and Elias do, that
white racial dominance has been continuous and unchanging throughout US history. But such a perspective misses the dramatic twists and turns in racial politics
that have occurred since the Second World War and the civil rights era. Feagin and Elias claim that we overly inflate the significance of the changes
wrought by the civil rights movement, and that we overlook the serious reversals of racial justice and persistence of
huge racial inequalities (Feagin and Elias 2012, p. 21) that followed in its wake. We do not. In Racial Formation we wrote about racial reaction
in a chapter of that name, and elsewhere in the book as well. Feagin and Elias devote little attention to our arguments there; perhaps because they are in
substantial agreement with us. While we argue that the right wing was able to rearticulate race and racism issues to roll back some of the gains
of the civil rights movement, we also believe that there are limits to what the right could achieve in the post-civil rights political landscape. So we agree that the
present prospects for racial justice are demoralizing at best. But we do not think that is the whole story. US
racial conditions have changed
over the post-Second World War period, in ways that Feagin and Elias tend to downplay or neglect. Some of the major reforms
of the 1960s have proved irreversible; they have set powerful democratic forces in motion . These racial
(trans)formations were the results of unprecedented political mobilizations, led by the black movement,
but not confined to blacks alone. Consider the desegregation of the armed forces, as well as key civil rights movement
victories of the 1960s: the Voting Rights Act, the Immigration and Naturalization Act (Hart- Celler), as well as important court decisions
like Loving v. Virginia that declared anti-miscegenation laws unconstitutional . While we have the greatest respect for the
late Derrick Bell, we do not believe that his interest convergence hypothesis effectively explains all these
developments. How does Lyndon Johnson's famous (and possibly apocryphal) lament upon signing the Civil Rights Act on 2 July 1964 We have lost the
South for a generation count as convergence? The US racial regime has been transformed in significant ways. As Antonio Gramsci argues, hegemony
proceeds through the incorporation of opposition (Gramsci 1971, p. 182). The civil rights reforms can be seen as a
classic example of this process; here the US racial regime under movement pressure was exercising its hegemony. But Gramsci insists that
such reforms which he calls passive revolutions cannot be merely symbolic if they are to be
effective: oppositions must win real gains in the process . Once again, we are in the realm of politics, not
absolute rule. So yes, we think there were important if partial victories that shifted the racial state and
transformed the significance of race in everyday life . And yes, we think that further victories can take place both
on the broad terrain of the state and on the more immediate level of social interaction : in daily interaction,
in the human psyche and across civil society. Indeed we have argued that in many ways the most important accomplishment of the anti-racist movement of the
1960s in the USA was the
politicization of the social. In the USA and indeed around the globe, race-based movements
demanded not only the inclusion of racially defined others and the democratization of structurally racist
societies, but also the recognition and validation by both the state and civil society of racially-defined
experience and identity. These demands broadened and deepened democracy itself . They facilitated not only the
democratic gains made in the USA by the black movement and its allies, but also the political advances towards equality, social justice and inclusion accomplished by
other new social movements: second-wave feminism, gay liberation, and the environmentalist and anti-war movements among others. By no means do
we think that the post-war movement upsurge was an unmitigated success. Far from it: all the new social movements
were subject to the same rearticulation (Laclau and Mouffe 2001, p. xii) that produced the racial ideology of colourblindness and its variants; indeed all these
movements confronted their mirror images in the mobilizations that arose from the political right to counter them. Yet
even their incorporation and
containment, even their confrontations with the various backlash phenomena of the past few decades, even the need to
develop the highly contradictory ideology of colourblindness, reveal the transformative character of the
politicization of the social. While it is not possible here to explore so extensive a subject, it is worth noting that it was the long-delayed eruption
of racial subjectivity and self-awareness into the mainstream political arena that set off this
transformation, shaping both the democratic and anti-democratic social movements that are evident in
US politics today.
Commitment to objective legal reasoning is the only way to constrain violence any
alternative paints the law as indeterminate which justifies illegality
Ristroph 9 (Alice, Associate Professor of Law, Seton Hall University School of Law, Is Law?
Constitutional Crisis and Existential Anxiety, Constitutional Commentary Vol. 25, 431-459.
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1457&context=facpub)
One reason to care whether law is in crisis concerns our own expectations of the function of law. A possible achievement is to offer an alternative to violence as we saw in Levinson and Balkins account of the Constitution as
enabling nonviolent dispute resolution.66 This might be called the anti-Thrasymachus view of law. Early in Platos Republic (before Socrates has tamed him), a young man called Thrasymachus describes justice as the advantage of the stronger.67 The claim is that might makes right, and
law distinguishes right from might it becomes important to

Western political and legal thought has produced many efforts to prove Thrasymachus and his heirs wrong. If , then
say what law is, and to show that it exists many ongoing jurisprudential debates about the criteria for . Hence,
a valid and functional system of law are motivated by worries about arbitrary power (including worries about legal indeterminancy)
and violence To show Thrasymachus to be mistaken, we want to show that the rule of law is really
.68
different from the rule of (the strongest ) men. In legal theory, we could view John Austins positivism law as commands backed by threats of punishmentas a descendant of Thrasymachuss claim.69 Here, I want to
examine briefly one of the most influential, and most plausible, efforts to show that law is something more and different from the commands of a gunman: H. L. A. Harts response to Austin. Hart framed his discussion around the question, What is law?.70 But perhaps, as the Stoppard
passage that opened this essay suggests, beginning with this question led us to conjure an image of law with various predicates that do not, as it turns out, include existence. A second form of existential anxiety, one that I suspect shapes present talk of crisis, is the anxiety thast
Thrasymachus and Austin were right and law, if it is anything more than command and force, does not exist. For my purposes here, the critical features of Harts account are the rule of recognition and the internal point of view. Since, in most of The Concept of Law, Hart takes laws
existence for granted, it is helpful to look at the passages where laws existence, or at least the existence of a particular form of law, is up for grabs. In his classic discussion of the question, Is international law really law?, H. L. A. Hart deployed the concepts of a rule of recognition and the
internal point of view to conclude that international law was at most in a state of transition toward fully legal law, moving toward law properly so called but certainly not yet there.71 At the time he wrote The Concept of Law, Hart believed that international law departed from domestic (or
municipal) law in that it lacked a widely accepted rule of recognition and in that states could not be said to take the internal point of view toward international obligations. (Harts argument has been challenged by many contemporary scholars of international law, but that particular
dispute need not occupy us here.72) For law qua law to exist, Hart argued, there must be a rule of recognition under which the authoritative status of other rules was accepted or denied, and the officials who would apply the rule of recognition must themselves take the internal point of
view toward it. That is, the officials needed to view the rule of recognition as a binding, authoritative guide to their own decisions. Suppose Hart was right and the rule of recognition and the internal point of view are conditions for the existence of law. Two questions arise: what is the rule
of recognition for constitutional law, and who must hold the internal standpoint toward that rule? The Constitution itself initially seems a candidate for the rule of recognition, though the fact that the Constitution must itself be interpreted leads some theorists to amend this account and
say that the rule of recognition must include authoritative statements of the meaning of the Constitution, under prevailing interpretive standards.73 As for the internal point of view, we might hope that all state officials would take this point of view toward constitutional rules.74 In other
words, we might hope that every state actor would comply with the U.S. Constitution because it is the Constitution, not simply to avoid injunctions, or judicial invalidation of legislative action, or liability under 42 U.S.C. 1983. But Harts theory does not demand universal adherence to an
internal point of view. Even if legislators and other public officials complied with First or Fourth or Fourteenth Amendment doctrine only to avoid invalidation or 1983 liability even if these public officials were the equivalent of Holmess bad manHart might find that constitutional law
still existed in a meaningful sense so long as the judges applying constitutional rules believed themselves to be bound by a constitutional rule of recognition.75 Here is a possibility, one I believe we must take seriously and one that prompts anxiety about the existence of constitutional law
itself: there is no common rule of recognition toward which judges and other officials take an internal point of view.76 Individual judges may adhere to their particular understandings of the rule of recognition the Constitution as interpreted by proper originalist methods, for example, or
the Constitution as elucidated by popular understandings. But the fact that individual state actors follow their own rules of recognition in good faith does not satisfy Harts account of law, and it does not provide a satisfying alternative to Thrasymachus. (There is no reason, on the might-
makes-right account, that the mighty cannot hold the good faith belief that they are pursuing a common good or acting pursuant to rule-governed authority. What matters is that their power is in fact traceable to their superior strength.) There is reason for academic observers to doubt the
existence of a single rule of recognition in American constitutional law. There are too many core interpretive disputes, as discussed in Part I, and it is now widely accepted that constitutional rules are at least underdeterminatc. Should there be doubt about this claim, consider this feature of
constitutional law textbooks: they include majority and dissenting opinions, and questions after each case frequently ask the reader which opinion was more persuasive. Those questions are not posed as rhetorical. For most constitutional decisions, we can say, it could have been
otherwise. With a few votes switched, with a different line-up of Justices, the same precedents (and in some cases, the same interpretive methodology) could have produced a different outcome. Moreover, these suspicions of indeterminancy or underdetermi-nancy are not the unique
province of the academy. Think of the discussions of Supreme Court appointments in presidential elections. Many voters, law professors or not, understand their vote for president to be also a vote for a certain kind of Justice and for certain kinds of constitutional outcomes. Discussions of
Supreme Court appointments are often framed in terms of judicial methodology I will appoint judges who are faithful to the text of the Constitution but that language may be more a matter of decorum than of real constitutional faith. Judges, of course, are not ignorant of the
charges of indeterminancy or of the politicization of judicial appointments. And it seems possible that the erosion of constitutional faith has reached the judiciary itself.771 claim no special insight into judicial psychology, but it seems implausible that the reasons for constitutional
skepticismthe discussions of underdetermined rules, the contingency of outcomes based on 5-4 votes, and the great attention to swing justices such as Sandra Day OConnor or Anthony Kennedyhave not influenced judges themselves. Here again it seems worthwhile to consider
dissenting opinions. Justice Scalias polemics come to mind immediately; he has often accused his colleagues of acting lawlessly.78 Yet he keeps his post and continues to participate in a system that treats as law the determinations of five (potentially lawless) Justices. It is possible, I
suppose, that Justice Scalias dissents express earnest outrage, that he is shocked (shocked) by decisions like Lawrence v. Texas79 and Boumediene. It is possible that he believes himself to be the last best hope of constitutional law properly so called. But it seems more likely that he shares
the skepticism of academic observers of the Court. Though one cant help but wonder whether judges are still constitutionally devout, I should emphasize here that my argument does not turn on a claim that judges are acting in good or bad faith. Individual judges may well take the
But it seems clear that American judges do not all hold the internal
internal point of view, in Harts terms, and strive faithfully to apply the principles they recognize as law.
point of view toward a single, shared rule of recognition, given the nature of disagreements among
judges themselves If there are multiple rules of recognition, varying from judge to judge , then legal
.
outcomes will depend on which judge is empowered to make the critical decision , and Thrasymachus is
not so far off the mark. Contemporary judicial disagreement is profound, and it is not just a matter of Justice Scalias flair for colorful rhetoric. Consider Scott v. Harris, the recent decision granting summary judgment (on the basis of qualified
immunity) to a police officer who had rammed a passenger car during a high-speed chase, causing an accident that left the driver a quadriplegic.80 Like most use-of-force opinions, the decision applies a deferential Fourth Amendment standard that gives police officers wide leeway. What is
unusual about Harris is that, because the case arose as a civil suit under 42 U.S.C. 1983, the critical question (whether the driver, Victor Harris, posed a sufficient threat to others bodily safety such that the use of deadly force was reasonable) was nominally a jury question, and at
summary judgment, the court should have taken the facts in the light most favorable to the non-moving partythe injured driver. Thus, in earlier use-of-force cases that reached the Court as 1983 claims, the Court articulated the Fourth Amendment standard and then remanded the
case to the trial court.81 But in Harris, the Court had access to videotapes of the chase recorded by cameras on the dashboards of the police vehicles involved.82 In the view of the eight-Justice majority, the videotape spoke for itself: it made Harriss threat to the public so clear that no
reasonable juror could conclude that the officers use of force was unreasonable.83 Accordingly, the Supreme Court found the officer to be entitled to summary judgment.84 Doubtless there are many instances in which a court grants summary judgment to one party though non-judicial
observers believe a reasonable juror could find for the other party. Harris is of particular interest, though, because the reasonable juror who might have found in favor of Victor Harris was clearly visible to the majorityin fact, this juror had a spokesman on the Court. Justice Stevens, the
lone dissenter in Scott v. Harris, viewed the same videotape and found it to confirm the factual findings of the district court (which had denied the police offic-ers motion for summary judgment).85 Though Justice Stevens was careful not to base his argument on an actual determination of
the substantive Fourth Amendment question (chiding his colleagues for doing just that and thereby acting as jurors rather than judges),86 he viewed the video evidence and explained how one might conclude, perfectly reasonably, that Scott had used excessive force.87 In order for the
eight Justices in the Harris majority to believe their own opinion, they would have to conclude that Justice Stevens lived outside the realm of reason. Harris is nominally a dispute about what reasonable jurors could conclude, rather than a direct argument about the meaning of a particular
constitutional provision. But the two reactions to the videotape should call to mind Larry Tribes worry that American constitutional law is plagued by deep and thus far intractable divisions between wholly different ways of assessing truth and experiencing reality.88 It is not just abortion
and assisted suicide that reveal profound disagreement about what is true and real. A videotape that speaks for itself in the eyes of eight Justices says something entirely different to the ninth. Looking beyond the judiciary, consider the consequences of constitutional disagreement and
with
constitutional indeterminancy for other government officials and for would-be critics of those officials. Earlier I noted that with sufficient constitutional indeterminancy, theres no such thing as an unconstitutional president. A more extreme version of this argument is that
sufficient legal indeterminancy, theres no such thing as illegality Yoo wrote the O L C memos . When John ffice of egal ounsel
that defend practices formerly known as torture, he was simply doing to bans on torture what critics had
long argued it was possible to do for any law : he was trashing them This was the spawn of CLS put to .89
work in the OLC; deconstructions on the left are now deconstructions on the right .90 And that, of course, is cause for anxiety among
this may be the Pyrrhic victory of critical legal studies:

those who would like to argue that George W. Bush or members of his administration acted illegally. As I suggested in the Introduction,
If the crits were correct, then there is no distinctively legal form of critique. About torture, indefinite
detention, warrantless wiretapping, and so on, we can say I don't like it or it doesnt correspond to my
vision of the good, but we cannot say its illegal. To argue that the Bush administration violated the rule
of law, we need to believe that the rule of law exists . But for 30 years or more, we have found reasons to doubt that it does.91 Perhaps it will seem that I am overstating the influence of legal realism
and critical legal studies, or the doubts about laws existence. Im willing to entertain those possibilities, but I do want to emphasize that the focus is on constitutional law. Its easy enough to believe in law when we see it applied and enforced by figures of authority in a recognized
hierarchy. That is, the sentencing judge or the prison warden can believe in lawhe has applied it himself. And the criminal should believe in law he has felt its force. But these examples illustrate Austinian law: commands backed by force. What remains elusive, on my account, are laws
brute force is a poor candidate to distinguish ordinary

that are truly laws given to oneself, and especially law given by a state to itself.92 That is why, in Part I of this essay, I suggested that
politics, or ordinary legal decisions, from extraordinary moments of crisis. What would be truly extraordinary is not the use of force, but its absence: a system
each successive generation

of law truly based on consent and independent of sanction. The Constitution, in theory, is a law given unto oneself. By this I mean not simply that the Founders gave the Constitution to future generations, but that
must give the Constitution to itself: each generation must adopt the internal point of view toward the
Constitution in order for it to be effective. Even once we have accepted the written text as authoritative, all but the strictest constructionists acknowledge that many meanings can plausibly be extracted from that
text. (And even the strict constructionists must acknowledge that as a factual matter many meanings have been extracted; they deny only the plausibility of those varied readings.) Any law given unto oneself requires what Hart called the internal point of view, and what one more cynical
we have become too clever, too quick

might describe as self-delusion: it requires a belief that one is bound though one could at any minute walk away. It is possible, I think, that we have outwitted the Constitution: that
to notice indeterminancy, even too post-modern to believe ourselves bound. A third possible explanation for contemporary references to crisis is
professional malaise. It could be, as I suggested earlier, that after too many years of chewing what judges had for breakfast, professors have lost their appetites. It could be that the problems of originalists and historicists and popular constitutionalists dont amount to a hill of beans in this
crazy world. And if these possibilities have not crossed the law professors mind, they probably should. We might consider again Larry Tribes explanation of his decision to stop work on his treatise of American constitutional law. There are two questions of meaning there, one of which
Tribe confronts directly and the other which he brushes off quickly. Most obviously, there is the search for constitutional meaning, as Tribe acknowledges, a search that cannot be concluded within the Constitutions own text. I see no escape from adopting some perspective... external to
the constitution itself from which to decide questions not indisputably resolved one way or the other by the text and structure--------9* Tribe goes on to wonder where these extra-constitutional criteria come from, and who ratified the meta-constitution that such external criteria would
comprise?.94 Supreme Court Justices (and other judges) must struggle with these questions, given the public authority that they have the enormous responsibility and privilege to wield.95 But Tribe need not. He can simply decline to finish the treatise. If he declines to finish the
treatise, though, we cant help asking ourselves what was at stake, and what remains at stake. If the law professor lacks the responsibility of a judge, is his constitutional theory just an amusing hobby? What was the point of the constitutional law treatise, or of other efforts to discern
coherent principles of constitutional law? The significance of a treatise is the question of meaning that Tribe brushes off quickly: he says a treatise is an attempt at a synthesis of some enduring value and insists that his decision is not based on doubts about whether constitutional
Is
treatises arc ever worthwhile.96 But Tribes letter leaves the enduring value of a treatise rather underspecified, and it is possible that current references to constitutional crisis in the academy stem from uncertainty about such questions of value.
constitutional theory good for absolutely nothing? Only if we believe that the effort to resist
Thrasymachus is futile or pointless. Constitutional theory is a species of legal and political theory, and the most intriguing forms of such theory are produced by worries that law and violence are too closely intertwined.97 Thus I
anxiety may be an important indication that we have noticed

suggested at the outset of this essay that existential anxiety is not always to be regretted, cured, or mocked. Such
the ways in which Thrasymachus seems right, and we still care enough to try to prove him wrong .98 After so much talk
Stoppards play Jumpers features a troupe of

of crisis and anxiety, consider an illustration from the dramatic genre. Tom professors philosophy who double as acrobats: Logical positivists,
mainly, with a linguistic analyst or two, a couple of Benthamite utilitarians ... lapsed Kantians and empiricists generally... and of course the usual Behaviorists... a mixture of the more philosophical members of the university gymnastics team and the more gymnastic members of the
The Jumpers practice

Philosophy School.99 post-modern nihilism One shoots and kills another, then
seem to what we would now identify as :
conceals the murder with cheerful aplomb . Against these intellectually and physically adroit colleagues, the clumsy and old-fashioned Professor George Moore struggles to defend the irreducible fact of
He can neither shake nor defend his faith.

goodness,100 the possibility of a moral conscience, and the claim that there is more in me than meets the microscope.101 Is God? Moore wonders. Law schools, I
think, are filled with moral sympathizers to Professor Moore who possess the skills of modern-day Jumpers.102 The current discourse of crisis is the latest manifestation of an old struggle between faith and doubt, and it is not one that we will resolve. On one hand, we have observed too
we are determined to have law, even if we must make it ourselves.

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

B. The Free Self Can Choose to Be Bound Schlag criticizes legal academics for unwitting indulgence in a contradiction. The self is supposed to be
sovereign. Yet the self bows down to the rule of law.244 The choice to be bound is supposed to be a contradiction in terms.245 From what has
been said, it should be clear that there is no contradiction here. The self that stands against the natural world, and the animal inclinations that
afflict its body, is a negative entity. At heart, the subject is nothing at all.246 Yet, if it is to "exist," it must have externally observable properties.
It must do something, and the things it does be? come an attribute of the self. We are what we do.247 The subject that lawfully follows its
passion achieves existence and so perpetuates itself.248 This is the positive freedom of the self. Any self choosing to conform to the law has put
forth its moral character in the world. It was the free choice of the self to do this.249 Hence, the free self can choose to be bound, without
contradiction.250 This concrete subject is likewise free to violate the law and to perpetuate itself by crime. This is the negative freedom of the
concrete subject. It is not properly freedom at all, but slavery to inclination. Crime consti? tutes inclination speaking in defiance of the moral
side, thereby committing a crime on the subject's own self. The particularity of the criminal is therefore not freedom but slavery.251 In fact,
tied into the very idea of following the law is the idea of a free will that might choose not to follow the
law. The free will that aspires to follow the law never truly binds itself. A subject that puts itself forward as lawful
could give into impulse tomorrow and is therefore "free" (in the negative sense) to violate the law. Lawfulness is therefore a constant struggle?
the ongoing achievement of the concrete self. Furthermore, it is a struggle in which the subject must fail: [F]reedom realizes itself through a
series of failures: every par? ticular attempt to realize freedom may fail; from its point of view, freedom remains an empty possibility; but the
very continuous striving of freedom to realize itself bears witness to its "actuality."252 Freedom
is thus "powerful." It exhibits
the "primacy of possibility over actuality." 253 Forever potential, it is nevertheless a possibility that
transforms the world. In contrast to this view, Professor Schlag wants to say that freedom means the
concrete self can do what it feels like. But he should know better than to exalt the authenticity of the
pre-legal natural self, and he has on occasion chastised others for doing just that.254 To exalt the
sovereignty of such a self (that may be in the thrall of criminal passion) instead of the liberal self is to permit the contingent
side of the self to govern in its moral arbitrariness .255 In other words, the essence of personality is the rationality of the
liberal self. Negative freedom denies the essence of personality and therefore ends up destroying its own self.256 To summarize, Schlag's work is
based on a romantic psychology. If only the concrete self were freed from law, Schlag implies, it would know what to do. Law offers mere
"norms" and presents the subject with empty choices. Such
a theory of the self ignores the fact that human nature has
two sides--the natural and the moral. One side cannot be privileged at the expense of the other . To be sure,
many of Schlag's criticisms of liberal psychology257 are well taken. Liberal psychology absolutely denies a place for the unconscious and
irrational. His accusation that liberal philosophy does not consider the challenge of deconstruction to liberal psychology is an excellent
contribution. Liberal
philosophy in recent times deserves criticism for not peering very deeply into the soul
of the legal subject.258 But liberal philosophy is also on to something: The moral dimension of personality
is constitutive and cannot be abolished without destroying personality entirely.
Schlags paranoid construction of the bureaucracy creates passivity and cynicism

IV. The Bureaucracy Schlag

presents a dark vision of what he calls "the bureaucracy," which crushes us and
controls us. It operates on "a field of pain and death." 259 It deprives us of choice, speech, 260 and
custom.261 As bureaucracy cannot abide great minds, legal education must suppress greatness through mind numbing repetition.262 In fact,
legal thought is the bureaucracy and cannot be distinguished from it.263 If legal thought tried to buck the bureaucracy, the bureaucracy would
instantly crush it.264 Schlag observes that judges have taken "oaths that require subordination of truth, understanding, and insight, to the
preservation of certain bureaucratic governmental institutions and certain sacred texts."265 Legal scholarship and lawyers generally266 are the
craven tools of bureaucracy, and those who practice law or scholarship simply serve to justify and strengthen the bureaucracy. "[I]f there were
no discipline of American law, the liberal state would have to invent it."267 "[L]egal thinkers in effect serve as a kind of P.R. firm for the
bureaucratic state."268 Legal scholarship has sold out to the bureaucracy: Insofar as the expressions of the state in the form of [statutes, etc]
can be expected to endure, so can the discipline that so helpfully organizes, rationalizes, and represents these expressions as intelligent
knowledge. As long as the discipline shows obeisance to the authoritative legal forms, it enjoys the backing of the state. . . . [D]isciplinary
knowledge of law can be true not because it is true, but because the state makes it true.269 Scholarship produces a false "conflation between
what [academics] celebrate as 'law' and the ugly bureaucratic noise that grinds daily in the [ ] courts . . . ."27? Scholarship "becomes the mode
of discourse by which bureaucratic institutions and practices re-present themselves as subject to the rational ethical-moral control of
autonomous individuals."271 "The United States Supreme Court and its academic groupies in the law schools have succeeded in doing what
many, only a few decades ago, would have thought impossible. They have succeeded in making Kafka look naive."272 Lacanian theory allows us
to interpret the meaning of this anti-Masonic vision precisely. Schlag's
bureaucracy must be seen as a "paranoid
construction according to which our universe is the work of art of unknown creators."273 In Schlag's view,
the bureaucracy is in control of law and language and uses it exclusively for its own purposes. The
bureaucracy is therefore the Other of the Other, "a hidden subject who pulls the strings of the great Other (the symbolic order)."274 The
bureaucracy, in short, is the superego (i.e., absolute knowledge of the ego),275 but rendered visible and projected outward. The superego, the
ego's stern master, condemns the ego and condemns what it does. Schlag has transferred this function to the bureaucracy. As is customary,276
by describing Schlag's vision as a paranoid construction, I do not mean to suggest that Professor Schlag is mentally ill or unable to function.
Paranoid construction is not in fact the illness. It is an attempt at healing what the illness is?the conflation of the domains of the symbolic,
imaginary, and real.277 This conflation is what Lacan calls "psychosis." Whereas the "normal" subject is split between the three domains, the
psychotic is not. He is unable to keep the domains sepa? rate.278 The symbolic domain of language begins to lose place to the real domain. The
psychotic raves incoherently, and things begin to talk to him directly.279 The psychotic, "immersed in jouissance,"280 loses desire itself.
Paranoia is a strategy the subject adopts to ward off breakdown. The paranoid vision holds together the symbolic order itself and thereby
prevents the subject from slipping into the psychotic state in which "the concrete T loses its absolute power over the entire system of its
determinations."281 This of course means--and here is the deep irony of paraonia--that bureaucracy is the very savior of romantic metaphysics.
If the romantic program were ever fulfilled--if the bureaucracy were to fold up shop and let the natural side of the subject have its way--
subjectivity would soon be enveloped, smothered, and killed in the night of psychosis.282 Paranoid ambivalence toward
bureaucracy (or whatever other fantasy may be substituted for it) is very commonly observed. Most
recently, conservatives "organized their enjoyment" by opposing communism .283 By confronting and
resisting an all-encompassing, sinister power, the subject confirms his [their] existence as that which sees
and resists the power.284 As long as communism existed, conservatism could be perceived. When
communism disappeared, conservatives felt "anxiety" 285--a lack of purpose. Although they publicly opposed
communism, they secretly regretted its disappearance. Within a short time, a new enemy was found to
organize conservative jouissance--the cultural left. (On the left, a similar story could be told about the
organizing function of racism and sexism, which, of course, have not yet disappeared.) These humble
examples show that the romantic yearning for wholeness is always the opposite of what it appears to
be.286 We paranoids need our enemies to organize our enjoyment. Paranoid construction is, in the end, a philosophical interpretation, even in
the clinical cases.287 As Schlag has perceived, the symbolic order of law is artificial. It only exists because we insist it does. We all fear that the
house of cards may come crashing down. Paradoxically, it is this very "anxiety" that shores up the symbolic. The
normal person knows
he [they] must keep insisting that the symbolic order exists precisely because the person knows it is a
fiction.288 The paranoid, however, assigns this role to the bureaucracy (and thereby absolves himself
[themself] from the responsibility). Thus, paranoid delusion allows for the maintenance of a "cynical"
distance between the paranoid subject and the realm of mad psychosis.289 In truth, cynicism toward
bureaucracy shows nothing but the unconfronted depth to which the cynic is actually committed to
what ought to be abolished.
CLS Bad
CLS scholarship patronizes minorities and ignores the necessity of legal reforms for the
marginalized
The principal Minority Scholars participating in the dialogue are Mari Matsuda, Richard Delgado, Harlon Dalton, Robert Wil- Iiams, Andrew
Haines, and Kimberle Crenshaw,95 all of whom teach law at various schools across the country. Similar to the CLS proponents, these scholars do
not embody exclusively all minority scholars critiquing CLS. Rather they stand out as representative spokespersons, some of whom vividly
illustrate their critiques of the Movement with intensely personal experiences concerning race and society.96 The
Minority Scholars
are virtually uniform in their assessment of CLS: they find all three major CLS themes-the indeterminacy
argument, the rights discourse critique, and the CLS egalitarian agenda- problematic. They note first, however,
several positive aspects to CLS: specifically, the Movement's "descriptive"97 and "prescriptive power."98 Professor Matsuda writes that "[the]
central descriptive message [of CLS]-that legal ideals are manipulable and that law serves to legitimate existing mal distributions of wealth and
power-rings true for anyone who has experienced life in non-white America."99 The mechanism of trashing in particular, one Minority Scholar
writes, is irreverent and incisive enough to penetrate "the apocryphal legal texts ... and myths," and various other reifications (ideology
operating in statutory or common law form) that restrict choices and dialogue. lOo As Professor Matsuda further observes, "[k]nowing when
doctrine sticks, when it doesn't, and why ... are major intellectual contributions of the CLS movement."101 Thus, both the Minority Scholars and
CLS recognize that political motives guide the use of legal rules that are premised upon normatively incorrect doctrine to justify predetermined
outcomes. The Minority Scholars find equally noteworthy the "prescriptive power" of CLS.102 The quest for an egalitarian society without
oppression, hierarchy, and maldistribution of wealth in a broad sense presents an inspiring and attractive endeavor.103 This egalitarian ideal is
quintessentially the vision of the future held by many people of color and people of limited means. The origination of these descriptive and
prescriptive contributions within the prestigious and exclusionary walls of mainstream legal academia, where most CLS scholars reside, lends
legitimacy to ultra-leftist jurisprudence in general. Although reluctant to agree substantively with CLS, the legal community must at least
acknowledge the cogent critical theories put forth by their academic peers. Arguably, this legitimacy would not exist if the CLS Movement
originated from elsewhere in the legal community, such as from practicing minority lawyers. In reference to the general legitimation of critical
scholarship, the Minority Scholars acknowledge that CLS has indeed even stimulated minority scholarship: "[s]ignificantly, this [commitment to
ultra-leftist jurisprudence] ... underscores the liberating impact that the CLS analysis has had on the victims of racism, propelling them to explore
its barriers."lo4 For the Minority Scholars, however, therealization that the composition of CLS is predominately white
and male tempers the value of these descriptive and prescriptive contributions. 105 The absence of a
significant minority voice integrated in the Movement's theory signals the unattractiveness of the CLS
agenda. Vividly capturing this bittersweet realization, and introducing a major criticism of CLS, one Minority Scholar writes, "Like a pack
of super-termites, these scholars eat away at the trees of legal doctrine and liberal ideals, leaving
sawdust in their paths. That they do it so well, and so single-mindedly, is compelling; it suggests that this is what the smartest are doing.
Never mind that no one knows what to do with all the sawdust. "i06 Despite CLS's presentation of insightful and critical
social commentary and jurisprudence, substantively its three major themes remain troubling to Minority Scholars. First, regarding the
indeterminacy of law argument, the
Supreme Court's recent rulings do illustrate the validity of the CLS idea that
legal rules are manipulable and legal outcomes are subject to the ideology and motivations of the politically powerful. 107 But CLS
fails to address the possibility that racism is the motivation underlying legal decisions which perpetuate
oppressive social and institutional conditions. lOB Through recognition of the non-objective, non-formalistic forces influencing
legal outcomes (which CLS generally terms "ideology"), CLS incidentally raises the possibilitya very real and intellectually compelling possibility
for people of color-that racism is one of the non-objective, non-formalistic forces. As the Minority Scholars assert, the
failure of CLS
scholarship to pinpoint and to integrate discussion of the problem of racism as a principle reason for
inconsistent and discriminatory decisions ignores the issue over which most of the exploratory energies
of minorities are spent. 109 In its very few works discussing the issue of racism, CLS, because of its Marxist roots,
attributes the occurrence of discriminatory and status quo-perpetuating legal outcomes primarily to
classbased and economic-based discrimination. 110 Racism receives merely tangential treatment as an
incidental product of class and economic strife. In contrast to the CLS view, the Minority Scholars assert that class-based and
economic-based discrimination as suffered by many minorities results from race-based discrimination, not vice versa. III The phenomenon of
racism manifests itself in a variety of contexts, including public housing, employment, and education and in many ways fuels the process
whereby some unfortunate citizens change in the eyes of society from people of color to people of limited means. 1J2 The Minority Scholars
posit cogent theoretical support for their belief that regardless of changes made to the institutional structure of our society, racism will persist
as a social-psychological phenomenon.113 It occurs in both overt and covert forms and in both micro-and macro-legal contexts. 114
Accordingly, for these scholars, any analysis of the role of law in society necessarily must consider the law not
only as a means for protecting against racism, but also as a means for perpetuating racism. CLS runs
afoul of minority interests by giving merely tangential treatment to a problem that historically has
threatened the stability of an entire population of African-Americans. Second, the Minority Scholars find
the CLS critique of liberal rights discourse problematic. ll5 In short, CLS asserts that rights and rights
discourse legitimate unfair distributions of wealth and power by focusing on the individual rather than
the community, providing piecemeal reform, and limiting the overall possibility of reform by
circumscribing the boundaries of dialogue. 116 False consciousness, the belief in the legitimacy of the existing system of liberal
rights discourse, deludes minorities into accepting and reconciling their deprived status. ll7 The Minority Scholars acknowledge the plausibility
of this theory, but assert that false consciousness is not the primary mechanism with which the majority culture stymies and diffuses minority
reformist activity.IIB The
Minority Scholars find troubling the idea that "[through] absorption of self-defeating
ideologies (rights discourse) ... " minorities participate in their own oppression . 119 They argue that it
"smacks" of the very paternalism that CLS purports to disdain by suggesting that minorities are unable to
comprehend fully their own plight and discern who (the majority culture) and what (frequently racism)
propagates that plight. 120 Other forces, they argue, combine to paralyze minority reformist efforts and to
inject a sense of hopelessness into an already daunting endeavor. Forces such as political and economic "coercion by
the dominant group; exclusion from clubs, networks, information, and needed help at crucial times; [and] microaggressions .... "121 CLS
focuses inappropriately on minority rather than majority culture. The Minority Scholars also take issue
with the rights discourse critique corollary which holds that faithfully staying within the system and
engaging in rights discourse results in inadequate piecemeal reform (the patchwork quilt metaphor). 122
CLS argues that "[t]hose who control the system weaken [infrasystem] resistance by pointing to the occasional concession to, or periodic court
victory of, a Black plaintiff or worker as evidence that the system is fair and just."123 This
corollary contradicts the reality that
incremental, within-the-system reforms have proven to be the most successful reforms. Even the American
Civil War, the passage of the Thirteenth, Fourteenth and Fifteenth Amendments of the United States
Constitution, the passage of the Civil Rights Acts of the 19th Century, ... the civil rights demonstrations,
the urban revolutions of the 1960's, the passage of the Civil Rights Acts of the 20th Century ...
demonstrate that [minorities] benefit from glacial not seismic changes in the operation of American law.
124 According to CLS, achieving reform in the area of civil rights requires endlessly litigating narrow
technical issues at great cost to the plaintiff-endeavoring against the considerable inertia of the status
quo. For Minority Scholars, however, the reality of these victories awarding substantive rights squarely
refutes the CLS arguments that conventional liberal rights concepts and discourse are disutile for
minorities. 125 Finally, the Minority Scholars attribute the problematic aspects of CLS theory to the perceived elitist,121> negative,127 and
informaP28 character of the Movement. With respect to elitism and informality, the Minority Scholars argue that
the trashing of rights discourse is plausible for CLS scholars because they reside in privileged positions
in our society. These are positions from which theoretically disposing of rights and creating an informal
community premised upon good will and sharing carries no threat of harm. 129 Implicit in this criticism is the
suspicion that CLS simply does not take itself or its proposed agenda seriously. What is missing, Minority Scholars argue, is a
measure of reality. 130 Turning to the issue of negativism, the Minority Scholars find that cynicism pervades the CLS Movement's
writings and its agenda. 131 The process of deconstructing virtually all of society's accepted institutional and
jurisprudential norms involves considerable negative energy and razes the foundations of a capitalistic
and democratic society. Minority Scholars believe this process inhibits the CLS Movement's ability to
generate positive enthusiasm for legal and social change. 132
Critical legal scholars shoddy defense of the movement belies disregard for minorities
B. Critical Legal Scholars' Responses to the Minority Scholar Critiques The CLS responses come principally from Alan Freeman 133 and Morton
Horowitz. 134 Significantly, only two of over one hundred Critical Legal Scholars responded , despite
considerable energies expended by the Minority Scholars in engaging the Critical Legal Scholars in
dialogue. This small number of respondents begs the question: "How seriously does CLS, as a
movement, take the concerns of minorities?" Perhaps many of the Critical Legal Scholars considered the two responses
adequately representative of the CLS position. More likely, given that CLS members typically do not retreat from an
opportunity to express their views on a controversial subject, most Critical Legal Scholars were simply
not sufficiently aroused by the subject of minority concerns to respond meaningfully. Moreover, the
responses fail to engage the Minority Scholars' critiques of CLS directly . Rather than give the critiques
systematic and comprehensive treatment (the manner in which they were presented), the CLS responses evaded
much of the substance presented by the Minority Scholars, amounting to a general defense of CLS
theory. The Critical Legal Scholars defend the indeterminacy argument and the trashing of liberal rights
theory, while only subtextually incorporating the problem of racism in these defenses. The CLS scholars also
argue that they are experientially qualified to critique rights and rights discourse. Professor Freeman in particular argues that their extensive
involvement in the civil rights movement in the 1960s establishes an intimate familiarity with the territory and texture of liberal rights discourse.
He further argues that this intimate familiarity creates a genuinely serious, and not just intellectually curious, interest in the minority agenda.
13s
CLS represents critique without responsibility entrenches minority tokenization, fails

to decolonize law
Dhanda and Parashar 12 (Amita, Professor of Law at Nalsar University of Law, Hyderabad, and
Archana, Associate Professor in Law at Macquarie University. Decolonisation of Legal Knowledge (April
2012), Taylor & Francis)
Most CLS scholars are explicitly or indirectly left leaning, and the implications of their critiques of law are
that it falls short of being principled, general or predictable , among other things. It has been suggested that such
critique seems to assume that these are achievable, and more importantly, desirable goals for legal
knowledge (Fish 1993: 168-73). There is, however, another critique of CLS that they provide no alternative
vision for law.14 PM/PS critiques similarly deny the possibility of authoritative knowledge and thus of directed social change. In this regard,
CLS and PM/PS legal critiques seem to have similar focus on deconstructing legal concepts, doctrine and self images. This turn to semiotics is
where a lot of contemporary legal theory is, but the issue for us is whether this means that legal theorists may only
'deconstruct' an already existing legal reality , be it (the) judgments, legislation, legal doctrine or analytical concepts. Duncan
Kennedy's work is an apt example of the CLS writing. In his book, A Critique of Adjudication: Fin de Siecle (1997), he elab-orates how judges
are denied the option of admitting the influence of ideological and non-policy factors in reaching their
decisions. He calls it the practice of 'denial' of their power by the judges. The judges are in this way engaged in
legitimating the status quo. The point of this meticulous deconstruction of judicial activity, however, is not so much to change the
style of judicial decisions and reasoning as to encourage the recognition of the control that decision-makers actually exercise.15 We accept
that such recognition of the power of decision-makers is an important step, but not enough in itself to
change the practices under discussion. Peter Goodrich takes issue with Kennedy and argues that he does no more than repeat the
critique of reason, that is, examine the judicial arguments for their persuasiveness and logic (Goodrich 2001: 989). He further criticises Kennedy
for not taking deconstruction seriously enough and argues that though the politics of writing is the subject matter of grammatology, while
Kennedy discusses deconstruction, he `neither places it in the context of grammatology nor understands it as a Nietzschean exercise in
philological disruption'(ibid.). However, even if Kennedy had done so, our concern remains that deconstruction
over-emphasises
the importance of academic readings of legal texts. This emphasis on semiotics allows these thinkers to
make no serious effort at exploring the alternative possibilities of what adjudication could be. In fact,
Stanley Ash's insistence that law is interpretation seems to suggest that whichever 'interpretation' finds
acceptance becomes the 'law' (see Fish 1993). In a nuanced argument, Fish suggests that the doctrine of formalism does not manage
to obviate the necessity of interpretation. Moreover, which interpretation is acceptable is not decided by reference to some universal moral
principles, but is dependent on the rhetorical force of the argument. According to him, this `rhetoricity' is not a bad thing at all because it
invokes the conventions of legal interpretation. In other works he has developed the argument that judges are not free to give any
interpretation but are constrained by the conventions of the judicial process as well as other legal institutions.16 That is, whether an inter-
pretation will be accepted is dependent on it conforming to the expect-ations of the relevant community rather than because it represents the
truth." However, feminists have, for a long time now, argued that com-munity standards so often invoked in law are the problem for women and
other disadvantaged sections of society.18 An understanding of judicial pronouncements as representing conventional beliefs leaves no room
for criticising them, or for ensuring that 'progressive' inter-pretations are more acceptable than other interpretations (West 1987: 278). This
PM/PS insistence on anti-foundational knowledge and against 'closure' implies that relativism can be the ally of conservatism, although it need
not be (Benhabib 1996). Have we made much pro-gress through enlightenment, critical theory and PM/PS, if the point we are reaching is that
knowledge can be constituted wisely or not wisely? When critical theorists take the high moral ground that it is not possible to postulate the
future shape of cultural practices, that may be so (see Spann 1984). But
if the implication of the critique is that one can
only describe what is happening, it becomes part of the problem . Moreover, it is contrary to the idea
that the function of theory is to destabilise power (see Foucault and Deleuze 1977). Proceeding with this
expectation that the function of theory is to destabilise power, it is possible to ask how far contemporary
critical theory has the potential to do that. We wish to emphasise the context of choice and the cultural con-notations of
making the 'right choice'. J.M. Balkin has addressed this very issue in his writings and has argued that one can be just with deconstruction
(1994).20 He says that deconstruction has to be understood as a rhetorical practice that can be used for good or ill. Anyone engaging in
deconstruction for a normative purpose chooses to say that there is a better way of looking at things. To the extent that deconstructive
arguments are forms of rhetoric, the ethics of deconstruction also become very similar to the ethics of rhetoric. Both rhetoric and
deconstruction can be used for good and bad purposes, and to that extent, each of us becomes responsible for the ways in which we use
deconstruction. In this way, deconstruction can form part of the critical theory of law. Cotterrell reminds us that even despite the fact that
ideology and organisational interests are closely interrelated in a formalised, seemingly closed legal system, it is nevertheless the case that the
individual actors (for example, lawyers, judges, lay citizens) think and communicate (Cotterrell 1995: 107-8). Zygmunt Bauman has made a
similar argument, saying that postmodern thinking takes away the certainty of universal ethics, but at the same time, it makes each individual
absolutely responsible for his or her choices and actions (1993). And it is this agency of the individual that must be kept firmly in focus. The fad
that ideas are thought and communicated by indi-viduals and some gain wider acceptance than others means that knowledge is forever a
matter of negotiation and persuasion. The indi-viduals are, of course, not entirely free to decide how to act, what goals to pursue etc. They are
constrained or at least influenced by the prevailing systems of thought, discourse and societal structures. None of this is a new insight, but our
aim here is to refocus on the context for every situation and shift it away from reifying discourse. We hope to thereby make critique accountable
and the critics acknowledge their role in legitimising either the status quo or change. This is an important task as we believe that
contemporary critical theory has become insular from the wider concerns of those who are at the
margins of society, usually without a voice, relegated to being the 'other' in short, the disadvantaged.
The markers of disadvantage vary, but include race, gender, age, ability and sexuality, among other
factors. All these bases of oppression have been analysed extensively, but the advent of PM/PS legal
analyses has created a peculiar situation. On the one hand, it is on the insistence of PM/PS analyses that
differences be recognised that legal theory is called upon to be inclusive of those on the margins of
society. At the same time, the antipathy to 'closure' of definitions and analytical concepts also results in the valorisation of 'difference'. That
is, difference comes to be celebrated for its own sake , and it seems no longer imperative to ask how the
celebration of difference justifies relativism of the most debilitating kind. For example, the cultural or ethnic
differences maintained in the name of pluralism can, and do, create problems for gender parity. 21 These
reactionary outcomes of PM/PS theory can be avoided if knowledge and responsibility are coupled
together. In legal scholarship the necessity of such a link between knowledge and responsibility must be
obvious: decolonisation of knowledge entails asking what follows from conceptualising legal concepts in
a certain manner or in theorising law as irrelevant to the aims of social justice or non-oppression. For
example, the violence of law analyses have shifted away the conventional focus from asking how law can regulate violence to showing how the
very existence of law itself is violence (Sarat 2001). This is a very pertinent challenge to the mainstream understanding of law as the guarantor
of fairness, order and even justice. However,
the critiques that merely challenge the mainstream understanding
but do no more, end up justifying the violence of law. For, the conclusion of such analyses that it could
be no other way, itself, becomes the legitimation of all contemporary inequities perpetuated via law. We
wish to challenge the determinism of this kind of analysis and to do that by invoking the PM/PS insight that all knowledge is con-stituted by
discourse and practice. It is, therefore, imperative that everyone carries the responsibility of being self-reflective about their role in creating and
maintaining the contemporary social structures. If they turn out to be oppressive for some, then we cannot absolve ourselves of responsibility
for that either. That
is, critique must be re-sponsible critique, otherwise it is a self-serving activity of
intellectuals, who can presume that they can do nothing to change the world (Calinicos 1989: 170).
The critical legal studies movement is a bastion of whiteness it talks about, rather
than talking with, people of color
Haines 87 (Andrew W., Professor of Law, William Mitchell College of Law. The Critical Legal Studies
Movement and Racism: Useful Analytics and Guides for Social Action or an Irrelevant Modern Legal
Scepticism and Solipsism? (1987), William Mitchell Law Review, vol. 13 no. 4)
Moreover, I note the influence of Freeman, Klare, and others in the CLSM on the analyses and writings of persons of color. One discovers traces
of the CLS analyses in the statements" I and writings" 12 of persons of color. No one really knows how many other such influences have
appeared and will appear. Significantly, this discussion underscores the liberating impact that the CLS analyses have had on the victims of racism,
propelling them to explore its barriers. Focusing on the limitations and negative dimensions, I
note the lingering exclusionary
character of the CLSM. Despite the obvious efforts of some within the CLSM to encourage wider
participation by persons of color, the movement remains a largely ethnocentric, radical intellectual
movement. Perhaps the genesis' 1 3 and the constant reference 1 4 to this exclusionary beginning has some bearing on
the reluctance 15 of persons of color to participate fully. Outsiders may interpret this emphasis as the unspoken message
about the exclusivity of this intellectual movement; they may see it as an ethnocentric radical intellectual reification of
the European radical intellectual tradition. Unwittingly, the emphasis may result in a polarity between two
important groups who need each other, radical intellectuals and persons of color , with a fair number of
the latter wondering whether this movement merely signifies the self-absorption in the other group's
virtuosic intellectual displays to the exclusion of truly grappling with the pressing social problems of
persons of color. Perhaps other reasons can explain the exclusionary character. Persons of color may find the ideas, the
methodology, and the conduct of the participants disincentives for participation. Whatever the root causes, the
CLSM maintains its exclusionary character; it continues to talk to and not dialogue with (or talk about
and not talk with) persons of color.

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If youre wondering what normative legal thought is

At the same time, this

*edited for offensive language

At the same time, this

Their dismissive response is characteristic of disciplinary thinking

Their prescriptive framework proves the link recreates students as instruments of

*edited for offensive language

This has meant that over

Neoliberalism guarantees extinction and social crisis

Militarization is simultaneously a discursive process, involving a shift in general societal

schools are increasingly modelled after prisons

This growth of the military model in American life

paramilitary culture increasingly embodies a racist and class-specific

Militarisation is widespread in the realm of culture and functions as a mode of public

From video games to Hollywood films and childrens toys,

and subordinates society to the military

at odds with any viable notion of democracy

Democracy appears as an excess in this logic and is

policy of anti-terrorism Not only does this policy of all-embracing anti-

the state of exception, is a void in which the suspension of the

Legal reform is a palliative measure that sutures superficial instances of white

Legislative solutions just mask social issues and enable victim-blaming

Ordinary life is full of similar examples in which the

Today, politicians and legal scholars routinely

the stories we want to tell dictate the stories

our desire for security and

the democratic culture generally, the public sphere of that culture,

is it true that in the case of

Discourse of rights is unproductive in the legal sphere---it cannot transcend conflict

Rights analysis is useless in politics and solving concrete problems

Rights claims undermine collective political action---every specific right is contingent to

Rights-talk protects the privileged and obstructs progressive legislation

From a constitutional perspective, the

Perm solves best---totalizing rejection sacrifices immediate suffering---short-term legal

it may be possible to engage in legal reform in the

Those who call for decolonisation often do not

We can challenge the

Institutional analysis key to deconstruction

Alt cant solve---technological and bureaucratic imperatives make the Surveillance

Increased use of information in governance

The detention and surveillance of aliens continues though other

the Patriot Act and the Terrorism Act contain various

With the power proposed in this section of the

a permanent state of emergency creates a situation in which foreign residents

Surveillance is key to modern governmentality---curtailment ruptures the state of

Surveillance allows management of life---reducing surveillance closes the potentiality

What is unique about this camp is the

this camp serves a paradigmatic example of affects of surveillance,

The importance of a juridical political system that acts according to the

Surveillance must be regarded as the point at

what is emerging in Foucaults writings, beginning with

what emerges is a theory of the top-down management of a population that is

we must look to surveillance to answer this question

Agamben seeks to further explore

Zo and bios are mutually exclusive

the simultaneous inclusion

bare life is that which is banished

The state of exception is a

Under the state of exception there

The biopolitical implication of surveillance is the

universalization of bare life: These new control measures

Making people suspects is