22 December 2016

War Law, legal writing and discourse theory

The 72 page 'A Critical Assessment of the New Department of Defense Law of War Manual' by David W. Glazier, Zora Colakovic, Alexandra Gonzalez and Zacharias Tripodes in (2017) Yale Journal of International Law comments
In June 2015 the Department of Defense (DoD) General Counsel issued a 1,200 page manual providing unified guidance on the law governing armed conflict. Unfortunately, despite such positive attributes as an unequivocal condemnation of torture, it is badly flawed. Sporadic criticism, notably media outrage over its treatment of the press, led DoD to issue a slightly revised 2016 version, mostly making cosmetic changes to language about reporters.
This article provides the first comprehensive critique, noting the manual’s uncertain hierarchical status or legal effect given its express disclaimer to not “necessarily reflect...the views of the U.S. Government as a whole.” Stylistically, it is twice the length it should be, suffering from unnecessary repetition and internal inconsistencies.
The manual’s substantive shortcomings are more significant than its literary vices, including basic errors in international law and idiosyncratic views that are outdated, unsupported by credible authority, or even counter to larger U.S. interests. Its treatment of proportionality, for example, endeavors to shift the greater burden for avoiding civilian casualties from the attacker to the defender. It makes a poorly supported claim of a U.S. right to use expanding bullets despite widespread recognition as a war crime. And it fails to enumerate which provisions of, the First and Second Additional Geneva Protocols of 1977 (AP I and II) – are binding on U.S. forces even though that was the original impetus for developing a joint U.S. manual.
The article concludes that the volume should be officially withdrawn until it can be brought up to an appropriate professional standard, or replaced with a manual more faithfully serving the law, U.S. military forces, and America’s true national interests.
Gordon J in 'Applying reason to Reasons – start, middle and the end' comments
Contrary to many misconceptions, the completion of a draft is not the end. It is simply the start of another process – redrafting and editing. This means that the process of thinking, writing, and re-writing begins again.
For my part, I stop and ask myself the following questions:
  • Have I answered each of the questions I identified at the beginning? And, on reflection, were the questions I posed the right questions?
  • Is the draft persuasive? Go through and analytically review each finding, factual or legal – sentence by sentence – and ask "why?" Why is this necessary and have I explained my conclusion? If it is not necessary, remove it. If the conclusion is necessary but you have not explained it, amend the draft. Remember your audience. You cannot write any piece of writing intended to persuade an audience without knowing who your audience is. 
  • Have I written in the English language? This question may seem facetious, but it is important to ensure you do not write in some foreign tongue called "legalese". Write clearly, simply, using accepted canons of grammar and punctuation. This is always important. But perhaps even more so when it comes to administrative decisions, where, in many cases, the person affected by the decision will not be a lawyer. Of course, if you must use technical terms, use them properly. But using technical terms does not mean that you cannot and should not take time to simplify and clarify your written work. 
  • Have I left a small footprint? In other words, do not include things that are not necessary to answer the questions. Why? You simply run the risk of confusing the reader and muddying the waters.
After completing a draft, put it aside for a period. When you go back to it, print it out in hard copy. Do not read off the screen. Then, take a red pen in one hand and complete the following tasks:
  • remove every unnecessary word; Why? To make it clearer and more concise. 
  • remove every amplifier and adjective i.e., "clearly", "very", "most", etc; 
  • substitute the simple for the complex or formal10. For example, "cease" should read "stop", "endeavour" should read "try". There are many others. 
  • avoid legalisms and lawyerisms: For example, "adjacent to" should read "next to", "be able to" should read "can", "enter into a contract with" should read "contract with", "for the duration of" should read "while". Again, there are many others. 
  • provide it to someone who knows nothing about the draft and ask them to read it. If they cannot understand it, then it is a sure bet that the intended audience will have great difficulties.
I wonder what Gordon J would think of 'Beyond Edward Said: An Outlook on Postcolonialism and Middle Eastern Studies' by Govand Khalid Azeez in (2016) Social Epistemology -
At the forefront of critically examining the effects of colonization on the Middle East is Edward Said’s magnum opus, Orientalism (1978). In the broadest theoretical sense, Said’s work through deconstructing colonial discourses of power-knowledge, presented an epistemologico-methodological equation expressed most lucidly by Aime Cesaire, colonization=thingification. Said, arguing against that archaic historicized discourse, Orientalism, was simply postulating that colonialism and its systems of knowledges signified the colonized, in Anouar Abdel-Malek’s words, as customary, passive, non-participating and non-autonomous. Nearly four decades later, Said’s contribution has become tamed and domesticated to an extent that most heterodoxic critical endeavours in the field have become cliche´d premeditated anti-Orientalist tirades. At best, these critiques are stuck at analysing the impact of power at the macro-level, polemically regurgitating jargons like “hegemony”, “misrepresentation” and “Otherness”. At worst, they have become dogmatic or ethnocentric, closing space for scholarly debate through insipid cultural relativism, pathological religiosity or pernicious Occidentalism. I argue there is a need to go beyond that old postcolonial epistemological equation through examining the follow on effects of thingification on the thingified subject’s Weltanschauung, cultural practices and more importantly, subjectivity. I aim to undertake this critical endeavour through theorizing what I call Counter-Revolutionary Discourse (CRD). This discourse is an historicized, Eurocentric-Orientalist implicit programme of action and an analytical tool, which functions as a cognitive schema and a grammar of action that assists the colonial apparatus in surveillance, gauging, ranking and subjectifying Middle Eastern subjectivity and resistance according to imperial exigencies. Through tracking the matrix of Western statements, ideas and practices, I demonstrate that imperial enthusiasts in encountering Middle Eastern revolutions, from the Mahdi, Urabi, Zaghloul, Mossadegh, the PLO and the PKK to the ‘Arab Spring’, draw on a number of Counter-Revolutionary Discourse systems of thoughts, which I argue are responsible for re-interpellating Oriental subjectivity and resistance. In the process, I put forward a new post-Saidian equation that not only transcends that tried and tested scholarly narrative, but a formula much better suited for tracing the infinite and insidious effects of neocolonial power that aims to negate the negating act: Colonization=thingification +re-interpellation of subjectivity.
And from there we are into the land of wording such as 'sublate', 'doxographers', 'rupture', 'fissure', 'constitutive Lacanian-like gap', ' philosophico-ontological formula', 'Foucauldian disciplinary-biopower and Mbembean-Agambean influenced necropolitical', 'homology', 'dispositions', 'microphysical' ...

Counter-Revolutionary Discourse - an "unconscious yet material intersubjective ideological framework" - is characterised as
an "historicized, Eurocentric-Orientalist implicit program of action and an analytical tool, which functions as a manual that assists the colonial apparatus in surveilling, gauging, ranking and subjectifying” Oriental subjectivity and resistance according to imperial exigencies ... founded upon religious and missionary zeal, aristocratic pride,noble rapaciousness, capitalist greed, blind provincialism, racial hauteur, narcissistic egoism and delusions of grandeur.