law reform and ethnic cleansing

A brief (15 page) law reform perspective on the Armenian Genocide is provided by Mark Movsesian's 'Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform' (St. John's Legal Studies Research Paper No. 1600745), now available on SSRN.

The paper was prepared for a symposium on legal aspects of the Armenian Genocide and is forthcoming in Islamic Law and Law of the Muslim World.

Movsesian considers the treatment of the Armenian community in Ottoman law. He argues that -

For most of its history, the Ottoman Empire adhered to classical Islamic law, which viewed Armenians and other Christians as dhimmis – formally protected, but legally subordinate, minority communities. The nineteenth-century Ottoman reform movement known as the Tanzimat granted dhimmis legal equality for the first time. Equality for dhimmis subverted the traditional social hierarchy and sparked a religious backlash, including the Hamidian massacres of 1894-1896, which killed hundreds of thousands of Armenians and other Christians. The Hamidian massacres in turn initiated a cycle of violence that led eventually to genocide. Although the Tanzimat did not itself cause the Armenian Genocide, the failure of legal reform, and the resentment that equality for religious minorities created in Ottoman society, were important contributing factors.

Movsesian has also released 'Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence' (forthcoming in Seton Hall Law Review) which as

a contribution to a symposium on Religious Legal Theory, compares Islamic and Christian conceptions of law and suggests implications for contemporary debates about religious dispute settlement. Both Islam and Christianity begin with faith, but they express that faith differently – and the difference relates to law. In Islam, a comprehensive body of law, fiqh, sacralizes daily life and connects believers to God. In Christianity, by contrast, law serves an auxiliary function; it is facilitative, not constitutive, of believers’ relationship to God. Moreover, unlike classical fiqh, canon law has a limited scope and is not exegetical. This essay explores these differences and shows how they influence the ways in which Muslims and Christians view religious tribunals today, as evidenced by recent controversies over Islamic family and commercial law arbitration in Canada and the United Kingdom.

cold dead hands

This blog's 'book of the month' award goes to the 191 page Immortality and the Law: The Rising Power of the American Dead (Yale University Press, 2010) by Ray Madoff.

Put simply, it's a delight - a lucid, witty, well-researched overview of US law regarding property in the body, wills and estates (transfers to people and transfers for charitable and other purposes), and postmortem personality rights.

For postgrad students or diligent law undergrads it would be a valuable supplement to fundamental works such as Jacobs' Law of Trusts in Australia 7 ed (LexisNexis Butterworths 2006) by Heydon & Leeming or Dal Pont's new Law of Charity (LexisNexis Butterworts, 2010), offering an engaging introduction to how US law treats challenges such as the rule of perpetuities or ongoing commercial exploitation of a persona.

Madoff is complemented by Michael Kammen's Digging Up the Dead: A History of Notable American Reburials (University of Chicago Press, 2010), Death, dismemberment, and memory: body politics in Latin America (University of New Mexico Press, 2004) edited by Lyman Johnson, Molière, the French Revolution, and the theatrical afterlife (University of Iowa Press, 2009) by Mechele Leon and The political lives of dead bodies: reburial and postsocialist change (Columbia University Press, 1999) by Katherine Verdery.

Those seeking something lighter might enjoy Sarah Penicka's 'Lobsang Rampa: The Lama of Suburbia' [PDF] in Sydney Studies in Religion (2005) 113-125. It is a gentle, scholarly study of British plumber Cyril Hoskin who became a best-seller in the guise of Tibetan Lama Lobsang Rampa, an entity whose adventures - including contact with aliens and remnants of Atlantis (conveniently situated in central Asia rather than at the bottom of the sea or the bottom of a glass of whisky - are utterly preposterous but were represented as the truth. If we can accept similar claims from figures such as Grof and Laszlo, in the guise of science, it seems ungenerous to sniff at the fabrications of the late Mr Hoskins.

Penicka notes that

His devotees seem to have no difficulty accepting the trials and tribulations of the hermit’s life, and consider the book to be fascinating. In fact, this is very much a pattern with Rampa: no matter what he wrote, no matter what his detractors (who are generally academics and the media) said against him, and certainly regardless of the revelation of his identity as Cyril Hoskin, he has always enjoyed a healthy following, one that continues today, over a decade after his death.

She goes on to comment that

Rampa supported this lack of questioning into textual sources. Despite the fact that the religious education he describes was heavily dependent on intense familiarity with a large volume of scriptures, Rampa almost never quoted from these and certainly did not encourage his readership to obtain and scrutinise them. Hoskin himself could not read any Tibetan. This is all part of Rampa’s appeal. He presented esotericism with simplicity and his books as a reasonably complete source of knowledge, requiring readers to undertake no further study. ...

To scholars such as Bharati, Lobsang Rampa is ‘the arch-paradigm of esoteric phoniness’, the man in whom an entire tradition of glorification and romanticisation of the Far East culminated, the point at which Theosophy and its ilk blossomed into a widely accessible, easily disseminated, faith-based religion. To Rampa’s followers, he is the first and only man able to consolidate all the truths they had hoped for in one set of comprehensible texts, a man of apparent generosity and warmth whose ultimate origins are of little or no consequence. There can be no doubt that Rampa has encouraged beliefs about Tibetan culture and Buddhism among his followers that are difficult to rectify. One can only hope that the damage to historical fact is balanced by the comfort Rampa affords his followers, who, it seems, are unable to find solace in traditional, more disciplined forms of Buddhism.

As with the parascience questioned elsewhere in this blog, belief in 'Rampa' is an expression of faith. Penicka suggests that -

Hoskin had a ready explanation for his predicament: yes, he had indeed been born Cyril Henry Hoskin. That good gentleman’s soul, however, had long since fled its corporeal form, so that the soul of a Tibetan lama, namely Tuesday Lobsang Rampa, could move in. Rampa’s own body had failed him before his worldly task was complete due to tortures he had suffered at the hands of the Communists in China and of the Japanese in World War Two. In New Age terminology, such an occurrence is somewhat inelegantly termed a ‘walk-in’.

This was an astute assertion. When faced with true believers in Rampa’s identity, even the most sceptical scholars find themselves unable to prove him wrong. Hoskin’s claim that his own soul had moved on, but that of the Tibetan lama was still going strong, is not a claim that can be tested in any empirical way. It is a simple matter of faith, of belief or disbelief, and such faith is exactly what Rampa’s followers (or with a less benevolent eye, his target audience) can provide.

Health Warning

I have been asked by a peer to articulate my stance on 'materialism' or 'rationalism', and explain the tone of this blog.

Some readers of this blog have presumably inferred that I am sceptical about the paranormal and about divine powers or authority. That inference - substantiated by dismissive comments regarding the scientific basis of faith healing, precognition, reincarnation, the vagaries of pronouncements by exponents of different religious faiths, or the pretensions of self-described witches (eg the claim by a Geelong witch that she was not subject to earthly statutes) - is correct. (The scepticism is consistent with Australian law's disrespect for poltergeists, telekinesis, changing the weather through group meditation, 'mental radio' and similar manifestations of mystical belief systems.)

This blog features statements of opinion, which readers can and should evaluate on the basis of their own values, intellectual coherence and reference to the authorities accepted by the reader. If you are a fervent Scientologist you will thus presumably be unconvinced by my reference to John Rawls or to works on the history of religion and the sociology/psychology of religious belief. If you are concerned with human rights and with the rule of law you might feel some affinity with the blog's criticisms of problematical statutes and policy statements in NSW and South Australia.

Some readers may endorse the 'Commentary' by David Marks in 320 Nature (13 March 1986) 119-124 that

Parascience has so far failed to produce a single repeatable finding and, until it does, will continue to be viewed as an incoherent collection of belief systems steeped in fantasy, illusion and error.

Others will not. So be it.

The tone of this blog is irreverent, often ironic and on occasion polemical. Readers seeking more austere prose can turn to work that appears in the Melbourne University Law Review, Privacy Law Bulletin, Local Government Law Journal and other publications. One task of legal scholarship (and more broadly of participation in civil society) is to engage with issues and not to shy away from 'speaking truth to power', a speaking that for example involves questioning hype about CCTV and the efficacy of 'knife-crime' statutes or examination - from a secular position - of particular dogmas.

A stance of saeva indignatio in response to cruelty and indifference, an indifference that on occasion (eg comments here and here) has involved leading institutions, is from my perspective quite legitimate. It is not antithetical to - or a substitute for - good scholarship.

Some readers will find the tone distasteful. Some - perhaps those who enjoyed David Rieff's review noted here - will shrug or will appreciate the text, however momentarily. Others may echo historian John Habakkuk, who as Neal Ascherson notes in a recent review of Adam Sisman's biography of Hugh Trevor-Roper, commented -

I find it difficult to decide whether T-R is a fundamentally nice person in the grip of a prose style in which it is impossible to be polite, or a fundamentally unpleasant person … using rudeness as a disguise for nastiness

As indicated on the front page of this blog, the text is independent of the University of Canberra and of the Law Faculty. Readers should exercise their judgment and read with discernment.

I am like a dying tortoise

Having fun reading David Mikics' insightful and lucid Who Was Jacques Derrida? An Intellectual Biography (Yale University Pres,s 2009), somewhat more engaging than the valuable Politics of Intellectual Property: Contestation over Ownership, Use and Control of Knowledge and Information ( Elgar, 2010) edited by Sebastian Haunss & Kenneth Shadlen.

The IP book features chapters on 'contemporary political conflicts over intellectual property rights' in the digital movie industry in Germany, Hazel Moir's empirical analysis of Australian and US patent ownership, Shadlen on the post-TRIPS politics of patents in Latin America, and chapters on biorights and patent governance.

Mikics offers an informed and nuanced appraisal of Derrida, arguing that

Derrida was neither so brilliantly right nor so badly wrong as his enthusiasts and critics, respectively, claimed.

In discussing Derrida's The Post Card he suggests that the work ...

written more than a decade before the internet era, is, in effect, a blog avant la lettre. Derrida fills his book with tightly veiled personal references that only the addressee of the postcards (presumably his wife, Marguerite) could understand. The Post Card is unusually frustrating, even by Derrida's standards. (Future generations will no doubt be mystified by Richard Rorty's judgment that in this book Derrida achieves an "incredible richness of texture" rivalling Proust, Joyce and Sterne.) At one point in The Post Card Derrida gives us a feckless image of impossible desire: "When I receive nothing from you I am like a dying tortoise, still alive, on its back. You can see it erect its impotence towards the sky" (Post 109). The Derridean tortoise points its wilting, ineffectual logos at the heavens inhabited by the immortal philosophers: such is Derrida's joke against himself. (He evidently has in mind the tortoise that supports the world in Hindu and Stoic cosmology.)

He goes on to argue that Post Card "presents an idiosyncratic version of philosophical esotericism, and as such it responds to Plato". Derrida as grand provocateur has fun along the way, with Mikics indicating that -

Derrida, commenting on the medieval picture of Socrates writing with Plato standing behind him, explores the possibility that Plato is sexually molesting his revered mentor: "For the moment, myself, I tell you that I see Plato getting an erection in Socrates' back and see the insane hubris of his prick, an interminable, disproportionate erection ... slowly sliding, still warm, under Socrates' right leg" (18) In addition to sodomizing Socrates, Plato, we are told, is riding a skateboard (17); also, he is a tram conductor (17); and finally, he "wants to emit ... to sow the entire earth, to send the same fertile card to everyone" (28). "Imagine the day", muses Derrida, "when we will be able to send sperm by post card". (24)

My intuitive response to that is the line from Monty Python: "He's not the Messiah; he's just a naughty boy". Naughtiness does, however, have its uses.

A friend has meanwhile reminded me of the 'Dogs Do Derrida and Heidegger' video on YouTube.

Information Jurisdictions

I'm rereading Magali Sarfatti Larson's The Rise of Professionalism: A Sociological Analysis (University of California Press, 1977) and Christopher McKenna's The World's Newest Profession: Management Consulting in the Twentieth Century (Cambridge University Press, 2006) for a perspective on lecturing in the Lawyers & Professional Responsibility unit.

Apart from questions about professional ethics - perhaps professional ethics are to ethic as military music is to music - McKenna offers a useful low-jargon introduction to notions of jurisdictional power, authority and the professions as knowledge brokers.

I do like his comment at p247 that

As the political theorist Alan Ryan likes to tell the story, during a faculty meeting at Princeton a colleague responded to one of Ryan's flippant comments by remonstrating that "we don't appreciate your constant sarcasm". An American friend quickly spoke up on Ryan's behalf: "Alan is British - he was being ironic - I'm the one who is always sarcastic".

He goes on to write that

Whether one is American or British, sarcastic or ironic, contemporary discussions of ethics, morality and professional values seem destined to provoke ridicule from postmodern scholars and scandal-weary readers who insist that we need to move past this anachronistic view of the professions. As sociologist Andrew Abbott argued more than twenty years ago, for professionals, ethics function as a means for existing elites to achieve higher status in their careers and within the wider society. From my perspective, however, I could care less whether these ethical standards are heartfelt or simply a cynical means to a calculated end as long as they eventually become the cultural norm in consulting.

don't buy your alfoil beanies just yet

A point of reference for considering 'the big change in 2012' questioned in the preceding post is provided by 'The 2012 Phenomenon New Age Appropriation of an Ancient Mayan Calendar' by Robert Sitler in 9(3) Nova Religio: The Journal of Alternative and Emergent Religions (2006) 24–38.

Sitler comments that -

As the 2012 winter solstice date approaches, there will be increasing attention given to determining its true significance among those in the New Age movement. In the context of worldwide environmental degradation and perceived societal degeneration, the possibility of global civilization’s collapse seems ever more real, and the prospect of a revolution in human consciousness becomes more attractive for many. The Y2K phenomenon attracted the attention of millions around the world even though, in retrospect, the concerns about global digital collapse that reached international dimensions proved baseless. Similarly, public interest in 2012 does not depend on the date having any substantive significance beyond marking a cyclical change in an ancient calendar. The date’s presumed connection to an ancient Amerindian civilization that some in the New Age assume to have been more enlightened than our own gives 2012 an attractive power that may eventually even outstrip that of the Y2K non-event. New Age teachers and writers who are most able to establish the authenticity of their ties to the Mayan world increase their chances of success in the spiritual marketplace. Their self-promoting publicity will generate further interest in the significance of 2012 and, with time, the sheer volume of books, Internet sites, and other offshoots of the phenomenon will establish an undeserved credibility for the importance of the date among a segment of the public with little interest in verifying the authenticity of many of the New Age teachers’ claims. Those who are less credulous may find John Jenkins’ writings on the subject to be utterly convincing without recognizing their nonconclusive nature. ...

Only recently, a man in India believed by some to be Kalki [ie Bhagavan, the guru whose intuitions - as noted in the preceding post - are attuned to the intuitions and research of Ervin Laszlo], the Kali Yuga's incarnation of Lord Vishnu, predicted the beginning of a new stage in human consciousness beginning in the year 2012. Along with this self-proclaimed avatar, a growing number of people, especially some with a New Age orientation, are convinced that humanity will soon undergo a fundamental transformation in its earthly voyage. Many of the self-proclaimed leaders of the 2012 movement have successfully appropriated this date from an ancient Mayan calendar by explicitly linking themselves to the living Mayan world. They have done so with the help of a small group of Maya men who lend an air of indigenous authenticity to their 2012 teachings but who lack a substantial base in their own cultural heritage. In doing so, 2012 proponents have transformed belief in the global significance of the December 21 date into a snowballing phenomenon that no amount of evidence can constrain. Several years remain before completion of the thirteenth b’ak’tun and of the most recent Great Cycle, and interest in the 2012 date is already strong and developing rapidly. The question of whether there is any underlying substance to the 2012 date has become meaningless as its power as a self-validating set of ideas establishes a reality of its own among believers who have no interest in examining the authenticity of those beliefs. Thus, beliefs in the global significance of 2012 date will persist and gain momentum until the dawn of that year's winter solstice when all can experience for themselves whether the day brings a New Dawn for humanity or just another Friday morning.

Believers in the truth of parapsychology might usefully turn to James Alcock's modest 'Give the Null Hypothesis a Chance: Reasons to Remain Doubtful about the Existence of Psi' in 10(6/7) Journal of Consciousness Studies (2003) 29–50.

Despite the enthusiasm of parapsychologists such as Rhine, Targ, Radin, Grof and Puthoff, supposed phenomena such as 'ghosts', 'precognition', 'remote healing', 'telepathy', 'poltergeists', 'reincarnation' and 'telekinesis' have not been scientifically proven. There is little, if any, reason to believe that they will be proven in the near future, irrespective of whether the enthusiasts refer to quantum mechanics or otherwise.

Alcock comments that -

I have yet to find any empirical evidence that persuades me that it is likely that paranormal phenomena actually exist. Moreover, I am well aware of just how often our brains can mislead us, and can lead us to believe that we have had a paranormal experience even when no such thing has happened. Indeed, even if there is no such thing as a paranormal phenomenon, human information processing works in such a way that we are all likely from time to time to have experiences that seem for all the world to be paranormal. For me as a psychologist, these experiences themselves — the reports of extrasensory perception and the like — are fascinating in their own right, even if, as I presume, they are not paranormal, for they can tell us a great deal about how our brains work and about our beliefs and needs and expectations, if we are willing to listen.

Alcock goes on to state that -

That quintessential investigator Sherlock Holmes once opined: 'It is a capital mistake to theorize before one has data. Insensibly one begins to twist facts to suit theories, instead of theories to suit facts.' This is also good advice when it comes to theorizing in parapsychology. The database does not at this time justify the development of explanatory theory, for, as I have discussed above, it is far from clear that there is anything to explain.

From a legal perspective Alcock's comments are a useful caution. Faith has in the past led people to believe in witches, vampires, werewolves and demonic possession. The consequences of that belief were often distinctly unpleasant. Sincerity is not always synonymous with virtue or with common sense.

end times and dollar signs

Having disposed of Mission and Money: Understanding the University (Cambridge University Press, 2008) by Burton Weisbrod, Jeffrey Ballou & Evelyn Asch and The Power of Pills: Social, Ethical and Legal Issues in Drug Development, Marketing and Pricing (Pluto Press, 2006) edited by Jill Cohen, Patricia Illingworth & Udo Schueklenk I am greatly enjoying The Cultural Lives of Cause Lawyers (Cambridge University Press, 2008) edited by Austin Sarat & Stuart Scheingold. The latter includes chapters on areas such as cause lawyering in 1960s US network tv, images of human rights lawyers in the British press, a deconstruction of Rumpole of the Bailey and A Civil Action, anti-tobacco litigation, and an analysis of intellectual property and other disputes regarding Gone With The Wind (eg the Wind Done Gone controversy).

tuning the 'quantum field transceiver'

It is more enjoyable than another encounter with the work of Ervin Laszlo, this time his fulsome introduction to Arjuna Ardagh's Awakening Into Oneness (Sounds True, 2007).

Laszlo, the World Futures and Akashic Field guru, exhorts (p xiv) readers to "evolve into consciousness" and then heads into Mayan '2012 end of the world' calendar territory.

Here is where the critical importance of the Oneness Blessing and the Oneness process comes in. The most reliable, lasting and effective way to change ourselves is to evolve our consciousness.

One last question: How much time do we have to reach a more evolved consciousness? The answer may be shocking to many people: for the human family as a whole, the time is less than a decade. The date I have arrived at is the same as Bhagavan had envisaged: the end of 2012. This is not mere coincidence. A major shift in the tenor of human life on this planet by the end of the year 2012 has been predicted by a surprising number of cultures, from the Mayan and the Cherokee to the Indian. That date appears to be deeply etched in the collective consciousness of contemporary humanity, and both Bhagavan and I have sensed it. In my case I came to it as an empirical insight before I did the empirical research and calculations. The latter merely confirmed the insight, with a margin of error that is not likely to exceed a few years in either direction.

The Oneness Process? It "enhances the Oneness Blessing and thus helps individuals to achieve the altered state of consciousness in which their brain operates as a macroscopic quantum system".

What the heck, you might ask, is a "macroscopic quantum system"? To use Laszlo's words it is (p xi) where the brain -

shifts from being an EM-wave and photon-wave receiver to operating as a quantum-field transceiver. It receives, as well as sends, information in the form of holographic patterns in the quantum wave field that, as an element in the quantum vacuum, underlies all things in the universe. (I have called this universal information field the Akashic Field, for its effect recalls the ancient concept of Akasha, the cosmic medium that interconnects and records all things in space and time.

The notion of the 'evolved' brain as a 'quantum-field transceiver' harks back to 1920s nonsense about brains as transceivers of 'mental radio', popularised in deliciously zany works such as Upton Sinclair's 1930 Mental Radio and several generations of anxiety in which people fretted that someone was beaming 'waves' into their brains (an activity that could be foiled - bad pun - with the classic alfoil beanie).

Elvis at least confined himself to repackaging 1860s mumbojumbo about the 'spiritual telegraph' in his song about the 'royal telephone' (ie long distance to God).

Telephone to glory oh what joy divine
I can feel the current moving down the line
Made by God the Father for his very own
You can talk to Jesus on this Royal Telephone

Central's never busy always on the line
You can hear from heaven almost anytime
It's a royal service built for one and all
When you get in trouble give this Royal line a call.

Let's look beyond the transceiver. Bhagavan is Sri Bhagavan, the Indian guru, self-announced divinity (under the name of Kalki) and founder of Oneness University ("the World's leading spiritual school helping millions of people awaken into higher state of consiousness", presumably a hit for consumers of karma cola).

(Laszlo, apart from developing the oh so modestly named Theory of Everything, founded GlobalShift University ... an institution where I'm not expecting to study or teach and that apparently resembles the Maharishi Mahesh Yogi's TM University, an institution that released oh so scientific reports about levitation, albeit its staff bizarrely chose to fly British Airways or United rather than substantiate their claims by floating off into the aether while seated on a teatowel or prayer mat.)

I confess to a deep scepticism about intuitions that there will be a "major shift in the tenor of human life on this planet by the end of the year 2012". Apart from the condescension implicit in eliding the richness of different cultures on the Indian subcontinent into "the Indian" and the ahistorical pop culture reference to forecasting by the Mayan and Cherokee (no Comanche, Sioux or Inuit ... perhaps because they're not in tune with the A-Field or had trouble getting Edgar Cayce and Madame Blavatsky to return their calls) in my opinion the notion of the brain as "evolving" in the near future to become a "quantum-field transceiver" is problematical.

Putting aside notions of telepathy, 'remote healing' and other attributes of the Akashic Field that have been endorsed or promoted by Laszlo and his followers, the claims are traditional ... but the traditions of the 1860s, 1890s, 1920s and 1950s.

In my opinion we do not have to look back to the Mayans. We can instead recall claims that were being made by proponents of spiritualism in the Victorian era, discussed in works such as Haunted Media: Electronic Presence from Telegraphy to Television (Duke University Press, 2000) by Jeffrey Sconce, Alfred Gabay's Messages from Beyond: Spiritualism and Spiritualists in Melbourne's Golden Age, 1870-1890 (Melbourne University Press, 2001), The Other World: Spiritualism & Psychical Research in England, 1850-1914 (Cambridge University Press, 1985) by Janet Oppenheim.

Those proponents may well have been sincere and smart but their claims have been authoritatively debunked or are simply untestable and thus cannot be characterised as "hard science". As New Zealand academic David Marks commented in The Psychology of the Psychic (Prometheus Books, 2nd ed, 2000) supposed phenomena such as 'remote viewing' are "nothing more than a self-fulfilling subjective delusion" ... irrespective of whether they are promoted by the local fortune teller or 'scientists who have repackaged past vogues for ouija boards, mental radio and other expressions of credulity.

We might also recall claims made by L Ron Hubbard in relation to Scientology, a belief system that is barely distinguishable from quantum mysticism (precognition, telepathy, reincarnation, remote healing, quantum field transceivers ...).

Spirituality and science are not synonymous and from my perspective - not necessarily the perspective of my peers - faith has no need to rely on science or pseudo-science for its authority.