Category Archives: politics

HERBERT SMITH AND THE TIMES ONLINE – DIVERSITY IN THE LEGAL PROFESSION – CAUSE FOR CONCERN OR A TRENDY BANDWAGON?

-Submission-

Diversification can be defined as providing all things “different” with an opportunity to argue in front of an ironclad tradition that prefers to continue entertaining what it knows and is comfortable with, rather than attempting – and subsequently failing miserably – to genuinely explore the currently nebulous and precarious void that is “different.” “Different,” “being different” and “different for the sake of being different,” however, are not only theoretic conceptualizations or normative pedestals onto which all hope for change is often placed, at times by the academic zealots of yesterday, but also equally invested tyrants that continue to aggravate the very social blister that they tirelessly try to cure. What creates a cause for concern then, is not that “different” has continued unfettered, but that “different” is actually beginning to retaliate after years of neglect and abandonment. Its owner, the carnivorous open market, is no longer interested in supporting its petulant thirst for surreptitious inequality and behind the scenes collusion. All of a sudden, the pretexts of merit, no longer carrying with them sufficiently wealthy and compelling substance to dictate otherwise, are incapable of negotiating with the claws of impending defeat.

To the foot-soldiers of the legal profession, marching to the beat of “different” may make public relations sense, an anomaly that modernity has failed to address. But to the efforts of those who genuinely wish to incorporate “different” so as to find perspective, open previously unexploited markets and deconstruct the myths that drive assumptions, “different” is but a platitude that is to be recycled for the purposes of extracting, pound-for-pound, the value of having access to a global, rather than a local, pool of opportunities. And so, the question that asks whether the legal profession would benefit from aligning itself with the regurgitation-friendly complications of retaining “different,” is but a foregone conclusion. “Different” is and should be, first and foremost, a choice, albeit one that may be influenced by the amount of black ink that is drying on a balance sheet at any one time. Conversely, “different” should not be a reflexive reaction to a frenzied political charade of mind-numbing populism that imposes a preference for homogeneity by replacing pragmatic business considerations, realties and choices, with a homogenized mix of merit, affirmative action and academic fist-pumping. This would be a complete waste of time, the end result of which would offer a valueless bag of equally harmless hypothermic solutions to a problem that is at best non-existent, given that “different” is and should be, as it has already been mentioned, the outcome of a choice and not the prerogative of an anticompetitive regime.

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the star without any end points, a circle in disguise

ready, set, go. attack, pant, begin to flaunt, oh my – is that kant? seriously. go fetch, go play, go emotionally decay. this blister is a complete disaster and someone just called me over to start the other side of their intricate project called casper. what a scene, full of fluffy fluffs fluffing about, can you believe such ignorance, i can’t tell you how happy i am to have experienced another way to lament. oh, continue, don’t abrogate, dictate, dictate…

[scene one]

[a small-ish rat occupies a space. a grandiose entrance, provided by some ill-advised sponsor, is entertained by a piece of cheese…]

[l… c… a…]

[“hello,” yelps the larger of the two. “perhaps you can guide me to your destination,” continued the belligerent, but this time with more gusto and perhaps even more empathy. i left the two alone to mingle and directed my attention to more pressing trifles, like the platter of duck confit that had arrived, just in time for the wetting of my palate. before i could ingest the floral display of apathetic violence, reconstructed for me by a magician of gastronomic “ooomph,” tragedy had struck. the legal person they called cheese, a blotched, half-empty placeholder, had already, rather desperately, forced its way into a container. it was hiding from the disaster. to spill more acid onto the intimately cancerous scene, monosyllabic doctors, competing for their own cubed foot of oxygenated diarrhea, all kept pushing alongside my leg without excusing themselves, perhaps on purpose. this entanglement further contributed to the pandemonium. the cheese was nowhere to be found by the true authorities and the obvious was lying naked on the floor, suffocated by the pungent smell of an unclassified piece of cheese…]

[this became, of course, a case no longer worth trying, never mind in front of a hot fudge, otherwise known as a fissure between an already widening gap; it is because of such influences that innocuous proper, playing with fire, will often burn at the same temperature as ulterior motives begin to congregate at.]

[r.i.p. rat, 547 grams, four inches tall, 11:43AM to 13:00PM]

there is an exclamation mark that gains perspective whenever you approach it with such sense of appreciation that your decoy is deconstructed the moment it senses and if containment is not preferred, it will also eat significantly more.

blah.

blah.

isms.

and again,

speech broke the silence, all too soon.

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hra – better than nothing? and has the EU really made a difference?

the herd, lining up

hra – better than nothing? and has the EU really made a difference?

– what does that tell you about how much the HOME OFFICE (a creation of some prime minister or another – i think in this case it was his royal tony-ness that transgressed) really cares about the HRA

– in my personal and humble opinion (yeah right ;)), the answer will tend to be “not really that much”

– they are constantly entertaining a state of complete apprehension, a state of being that paralyzes their foresight and continues to entertain the grossly inappropriate blinders-on effect that has been the status-quo for way too long in this nanny-state of a country

– i guess the thought of queens, kings and KINGDOMS conjures up warm and fuzzy feelings of slavery and repression with its gardens of evil and sand castles of hardship for the promotion of the social collective, the nation and the prosperity of the PUBLIC (and the PUBLIC’S GOOD)…another deep-throat anachronism that even my grandmother has stopped paying attention to…

– everyone is hiding behind the ‘public good,’ while we, the voters, the deciders, want accountability

– but really, when the closet monster makes a boo-boo, s/he blames it on the need to promote the public good, or some other utilitarian smith-slash-mill-like hit-and-run argument.

[note: the above happened ‘on the fly’ or ‘in the moment’ and its contents are unaltered so as to not entertain an adherence to certain unfounded and unjustified standards of expression or formalities that only restrict the audience slash reader to a given matrix of possible interpretations. art, a creation, a process.]

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A Self-Interested Anomaly: Parliamentary Sovereignty in the United Kingdom

Nanny State Cop Car

QUESTION

Q: The traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of UK constitutional law.

INTRODUCTION

We are asked to consider whether the “traditional doctrine of parliamentary sovereignty can no longer be regarded as an immutable part of U[nited] K[ingdom] constitutional law.” What is to be argued then is that while to restrict the government of the day from ignoring Parliamentary Sovereignty is to restrict deference to alternative means of resolving contemporary ‘governmentality’ exigencies, the doctrine of Parliamentary Sovereignty in the United Kingdom is and will continue to be, insofar as political forces of self-interest do not intervene, conventionally entrenched. A further consideration that will be elaborated on, and one that is intrinsically linked to the aforesaid question, is i) whether or not this transfer of sovereignty, from the Crown to the Parliament, via the 1689 English Bill of Rights, was in essence a transfer of tyranny from the King to the oligarchs of Parliament (Loveland, pg. 29). And if the opposite turned out to be true, ii) whether or not tyranny as it is understood today has been better circumvented as a result of modernity and those features that constitute it, like the “rule of law” and principled adherence to a legal system that allows for legal predictability and sustainability.

THEORIES OF PARLIAMENTARY SOVERIGNTY

The legal doctrine of Parliamentary Sovereignty, as proposed by the Oxford professor A V Dicey, normatively stipulates that past parliaments cannot bind futures; that predecessors cannot negotiate on behalf of their successors. Dicey’s theory can be further broken down into two main components, namely the positive and negative branches of Parliamentary Sovereignty. The former branch or the “positive limb” asserts that Parliament is capable of making (read: positing) or unmaking any law that it wishes, as no other sovereign body exists to legally prevent it from doing so. In addition, the “negative limb” of Dicey’s theory adds that the legality of Acts of Parliament cannot be challenged in any legal court” (Loveland, pg. 24). Furthermore, while a second theory of Parliamentary Sovereignty is said to exist in the United Kingdom, namely that Parliament is “self-embracing” and can subsequently bind itself and future parliaments, constitutional commentators like Ian Loveland have argued that such a theory “has had no political effect in this country” (Loveland, pg. 37). However, a question of whether or not past Parliaments have bound future ones in the United Kingdom, and whether Parliamentary Sovereignty has in effect been tacitly repealed, can only be answered after unpacking the effects of the European Communities Act 1972 and whether such an unexplainable constitutional anomaly allowed for a “regime in which Parliament has bound its successors successfully and which is nothing if not revolutionary” (Wade, pg. 3).

IMPLIED REPEAL, DUALISM, STATUTORY HIERARCHY AND THE ENTRENCHING OF LEGISLATION

Implied Repeal

In 1934, the Court of Appeal held in Ellen Street Estates Ltd. v. Minister of Health [1934] that if an Act of Parliament “appeared inconsistent with previous legislation, the previous legislation must give way” (Loveland, p. 34). The effect of this was that legal statutes were to be impliedly repealed once new statutes that came into existence contradicted previous ones. In addition, such a decision was not inconsistent with an orthodox understanding of Parliamentary Sovereignty, as it allowed subsequent Parliaments to repeal (absolutely) the Acts of their predecessors whenever and wherever they saw fit. Without a written and entrenched constitutional framework to be adhered to, statutes and the rights they confer on those who are bound by them, are left to the mercy of politicians and political agendas of self-interest. While this paper is not intended to outline the instances of malfeasance in United Kingdom politics, the possibility of political transgressions is neither sufficiently checked nor prevented, notwithstanding judicial review in the area of administrative law.

International Legal Theory: Dualism

While the aforesaid case dealt with the domestic legal question of implied repeal, the international legal doctrine of “dualism,” as it stands opposed to “monism,” prevents Treaties and the subsequent obligations that such confer on their respective states (as they are entered into by consenting governments) from automatically being incorporated into domestic law. An express act of incorporation must first be passed in that respective state’s Parliament, acquiescing to its incorporation, in order for that Treaty to become legally binding in the realm of domestic or national law. The United Kingdom currently employs the legal doctrine of “dualism,” a legal state of affairs that was reiterated in both Mortensen v. Peters (1906) and Cheney v. Conn [1968]. In the latter, the claimant alleged that a portion of his tax money “was being used to build nuclear weapons, contrary to the principles of the Geneva Convention, a 1957 treaty which the British government had signed,” but had not incorporated into domestic law (Loveland, pg. 36). Cheney’s argument was rejected on the basis that “an unincorporated Treaty could not have that effect,” namely that of preventing the manufacturing of those sanctioned weapons in Britain (Loveland, pg. 36). As long as the doctrine or theory of dualism continues to be entertained by the United Kingdom, Parliamentary Sovereignty will continue to rule supreme in those cases in which the rights of individuals under Treaty law have been breached.

Entrenching of Legislation

It is often purported that the United Kingdom has an unwritten constitution and that certain statutes are conventionally fundamental and subsequently immutable. Historically however, there have been instances in which entrenched legislation has fallen victim to the ubiquitous and all-powerful will of Parliamentary Sovereignty. For example, in 1853 and in 1932, Parliament enacted legislation “contrary to the Acts of Union,” when it passed the Universities (Scotland) Acts (Trinade, pg. 389). On the flip side, section four of the Statute of Westminster 1931 and other “various Independence Acts did (emphasis added) impose territorial restrictions on the United Kingdom Parliament,” with respect to the sovereignty of their colonial governments and states (Trinade, pg. 388). However, the extent to which legislation is to be entrenched or breached is not predisposed to a test of objectivity or of principle, but is in turn haphazard and a further example of the arbitrary nature of United Kingdom politics (and politics in general) and those political actors and agents who undertake to implement self-interest behind the veil of ignorance that is Parliamentary Sovereignty.

Statutory Hierarchy

In Thoburn v. Sunderland City Council [2002], Laws L.J. held that constitutional statutes fall within a special category that is immune to implied repeal. What this in turn creates, if one is to accept Laws L.J.’s tenuous position, is that we are to imply a hierarchy of statutes. The aforesaid however, is irreconcilable with a previous understanding that all statutes passed by parliament may be repealed either implicitly, by passing subsequent legislation replacing a previous act, or by explicitly doing so using appropriate language. Furthermore, Laws L.J.’s judgement, that constitutional statutes fall in a special category and can only be repealed using express language, provisions or wording that outline such a desire, is completely oblivious to the political reality that dictates that Parliament can easily circumvent this ineffective and judge-imposed restriction.

ANALYSIS

European Communities Act 1972

The United Kingdom passed the European Communities Act (henceforth the ECA) in 1972, thereby making possible the legal entry into the European Community, as it was then known. The most relevant consequence of this act, inter alia, was the subsequent perceived transfer of sovereignty from London to Brussels; it should however be noted that the United Kingdom has only given up sovereignty in those legal areas that are covered by European Community Treaties. However, H.W.R. Wade argues that with the passing of the ECA, the parliament of 1972 bound future parliaments and that this was nothing but revolutionary (Wade, pg. 3).

A further dilemma lies with whether or not future British courts will be able to find an Act of Parliament that intends to abrogate the ECA and therefore the United Kingdom’s membership in the European Union (as per the Treaty of Maastricht 1991), to be legal under EU law. In Costa v. ENEL (1964), the European Court of Justice (henceforth the ECJ) established the supremacy of EU law over domestic law. Furthermore, in 1990, the ECJ in Factortame (No. 2), affirmed Costa and, after the House of Lords deferred the question of whether British courts could disapply acts of Parliament in those cases in which such acts are incompatible with EU law(s), returned an answer in the affirmative, namely that the Merchant Shipping Act 1988 was to be struck down.

While Parliamentary Sovereignty may be said to have been limited by the passing of the European Communities Act in 1972, due to its anomalous binding nature on future parliaments, this cannot realistically be a cogent interpretation of what is both politically possible and feasible given certain impetuses for acting otherwise. Parliament, like in the passing of the Statute of Westminster 1931, limited itself and by doing so, limited future Parliaments. International sovereignty theorists may distinguish between a vertical loss of sovereignty, and a horizontal loss of sovereignty. Such a distinction can disassociate Acts of Independence (as they were implemented during the end of imperialism) that limited the territorial sovereignty of the United Kingdom, from Acts of Subordination (vis-à-vis the European Union) that limit the sovereignty of a national Parliament in the territory it is “supposed” to be the supreme lawmaker in. However, the United Kingdom cannot be said to have neither experienced a horizontal loss of sovereignty, nor, in this instance, and as it applies to this discussion, a loss of Parliamentary Sovereignty, by virtue of having become a member of the European Community (as it was known then). Until the United Kingdom Parliament decides to repeal the European Communities Act 1972 and exit from the European Union (Black-Branch, pg. 79), an Act that can only be undertaken within a framework of Parliamentary Sovereignty, it will continue to be the supreme lawmaker, insofar as it has accepted to be bound by the decisions of the ECJ in those areas that it has, by virtue of incorporating according Treaties into domestic law (read: a positive act of sovereignty), agreed to transfer sovereignty to Brussels.

Human Rights Act 1998

The Council of Europe proclaimed the European Convention on Human Rights in 1950. In 1998, this convention was incorporated into United Kingdom domestic law via the Human Rights Act 1998 (henceforth the HRA). Although the HRA purports to protect individual citizens against both repression and oppression stemming from government abuse of power, in addition to allowing individuals to seek recourse in domestic courts (as per the decision in Van Gend En Loos (1963)), the remedies offered by the HRA are ineffective and vulnerable to political predation.

Firstly, the HRA “is not constitutionally entrenched and judges have powers to strike down secondary legislation but not primary legislation” (Black-Branch, pg. 65). Secondly, judges “can issue declarations of incompatibility if they feel there is an incompatibility between primary legislation and the rights in question, leaving it for Parliament to act on the issue if deemed appropriate to do so” (Black-Branch, pg. 74). Effectively then, the very same rights that are normatively supposed to offer some protection against oppression and repression, are in turn left to the mercy of absolute and arbitrary politicians that may have varying interests as to whether to rectify the deficiency of incompatibility. Allowing politicians the discretion to pass judgement on such matters of human rights may purportedly limit the breadth and depth of Parliamentary Sovereignty as it “fast-tracks” inconsistencies through Parliament with the intention to address such discrepancies, but in reality, the opposite is true.

CONCLUSION

Parliamentary Sovereignty dictates that past parliaments cannot bind future ones; that predecessors cannot negotiate on behalf of their successors. In 1689, following the Great Revolution of 1688, the English Bill or Rights contractually prevented the Crown from governing the English nation by means of royal prerogatives, which previous to the enactment of such Bill had the capacity to suspend the execution of those laws as passed by Parliament (Article 1, Bill of Rights, 1689). In principle, the effect of this legal agreement, between the Crown and the Parliament, was that the nation was to subsequently be (ostensibly) safeguarded “against the tyranny of its King” (Loveland, pg. 29). However, tyranny by one King is no different than tyranny by Parliament, especially when the doctrine of Parliamentary Sovereignty in the United Kingdom continues to be “pompously paraded to justify decisions which are really political choices and not constitutional necessities” (Black-Branch, pg. 77). If the arguments presented in this case carry any validity, Parliamentary Sovereignty in the United Kingdom has and will continue to be an immutable part of the United Kingdom’s body of constitutional (read: conventional) law, offering adherence to the “rule of law” when it is politically expedient (and political self-interests do not dictate otherwise) to do so.

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the unconscious sandbox

the united kingdom is a useless country full of lazy peasants and overexcited bovine. nothing really froth-inducing. last week i saw a few wealthy and pompous geriatrics trying to load the bus without foregoing their ‘property’ by means of appropriating the bus driver with what obviously was not his. this society is beyond-me complicated. i am expected to respect their religion, ahem, their belief that ‘to not work is better, to undermine contractual obligations is best,’ but to be honest, i have yet to find any argument in favour of that relationship.

last week i attempted to provoke capitalism by inducing a third-party to contract on my behalf. it failed miserably, but not so fast. traditionally, ‘rights’ have had further complications, namely an ‘appendix’ euphemistically called ‘obligations.’ it seems to me that this part of the pond is more concerned with the former rather than the latter; the right to own chattel (the right to slavery), the right to be accommodated, the right to express criticism directed at ‘those dogs,’ the right to enter into agreements (only) with your peers, ad nauseum, et cetera. on the flip side, obligations can be categorized as being all those undertakings that require a detriment to the person to be expressed as some sort of consideration for the ultimate cause, humanity. in plebeian words, fuck hierarchical power relations.

we really are left with a minor conundrum here. the equation is set up so as to allow only a pretending few to benefit from the detriments of others. however, the victims of ‘life-between-jobs’ themselves feel further entitled to the luxuries of fame by victimization, as appropriated through ‘pity-channels’ and realized via more modern models of efficiency, fraud, identity theft, clandestine activity and gum chewing.

so while we all bitch, complain, take the dog out for a walk and scratch our society’s back (in return for a gyro cheque), the visiting foreigner, in true stereotypical style, finds out just how important it is to spit out rhetoric in favour of a better, less corrupt, more accountable and ostensibly-less-on-the-fence (?)united-kingdom(?). at the very least, the foreigner will have an audience who is willing to listen. and that is in itself enough to conclude with…

have you been introduced to the word “incentive” yet?

addendum:

law school is a bit of a bore, but that is because in our constitutional law course we are given propaganda vhs tapes to take home and watch while ‘high’ on the ‘prospect that law school will make you rich.’ similar indulgences and sheer decadence is attempted in our contract law course but with a slightly less obvious success rate.

i noticed that life behind bars (euphemism for a life behind the great wall of the university of birmingham) is fairly docile. most inmates favour silence and servitude. they are content with vilifying their masters insofar as they do not raise any suspicion as to their true intent. ulterior motives live behind a vail of passivity that only imperialism was able to justify as being incredibly unnecessary.

it seems to me that the populist march continues to favour the modern fascist beat of twenty-first century ‘nanny statism.’ it’s personal.

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On the Question of Turkey-EU Membership: Yes, No, and Everything in Between [full post]

*By special request, I’m posting my entire paper on the question of whether Turkey SHOULD or SHOULD NOT join the European Union.

Intro

To ask the question of whether Turkey should or should not join the European Union is to completely misunderstand the context in which current negotiations are taking place. In other words, when France adamantly and vociferously maintains that if and when Turkey will be “ready” to join the EU, it will leave it up to its electorate to decide by means of a referendum, it completely misses the point. The primary objective of this paper is to briefly outline the contextual backdrop onto which accession talks have been, and continue to be made, by critically engaging with a cross-section of the current academic literature on this subject. Furthermore, the last section will offer a more pragmatic analysis of the possible directions in which Turkey-EU negotiations could be potentially taken. This will hopefully provide a coherent response to the reality that Turkey’s political, cultural and economical future, will not by any means, be less successful or promising, without full EU membership.

Background

There is nothing “organic” about the way in which the modern Turkish republic came into existence. While it may be true that European modernity was the product of a centuries long industrialization process, a process influenced and fueled by revolutionary advancements in technological competence, the Turkish case is distinctly different. With the Ottoman Empire having suffered continued defeat “at the hands of the major European powers,” modernity came to be seen as the best possible defensive strategy, offering renewed military competence and in short, provide the solution to a lack-of-competitiveness problem. Initially, modernity was not a ubiquitous and omnipresent fact of life, but limited to the military.

It is not difficult to conceptualize why the Ottoman Empire opted for modernity as a way of staying competitive among the other European powers and empires, of the 18th and 19th centuries. A modern army, however, also requires modern institutions to “train military officers and to offer medical services to military men.” Schools were added for the purpose of training these officers. In addition, “capable administrators who could, among other functions, develop reliable systems for drafting soldiers and collecting taxes,” soon followed, for the following reason. The Ottoman war-machine required a systematic approach to the administration of public and natural resources, as well as the human capital required to make it all possible. One caveat however, does exist. While new and modern institutions that dealt with realizing the primary objective of increasing the overall effectiveness of the military were being erected, traditional institutions, such as the medreses (schools charged with transmitting Islamic theology and religious law) were still in operation and often stood in contradiction with their modern counterparts.

It is at this point in the history of the Ottoman Empire, that a distinction can be made between a modern interpretation and a more traditional understanding of state governance. Modernity in pre-republican Turkey benefited a select few and alienated many, unemployment being the major pathology of modernity in 19th century. Because of this exclusionary effect, the modern Ottoman Empire came to antagonize those individuals who entertained more traditional approaches. Those who had been brought up and schooled under modern institutions “became aware of the backwardness” of their society. With the end of the First World War and the defeat of the Ottoman Empire, modernization reforms became possible. Justified by the inefficacy of the old regime, the Republic People’s Party (RPP), led by Mustafa Kemal Ataturk, institutionalized modernity in 1923, by establishing the Turkish republic.

Secular Kemalism has been a predominant feature of Turkish politics, a point of constant contention that often found Turkey under great political turmoil, instability and uncertainty. Between 1923 and 1946, Turkey operated under a single party system. The RPP was “the original tutelary single party that was associated with the founding of the republic and the westernizing reforms of Ataturk.” RPP reforms were particularly intrusive, repressive and designed by the Kemalist state elites to “keep society under control and realize change through state action.” As already mentioned, these state elites, having been brought up and trained under modern institutions and schools, felt justified in being the ones to guide a backward society. The only way this was possible in their view, was to adopt a doctrine of “security maximization,” using as many top-down authoritarian measures as deemed necessary.

Turkey held elections in 1946 and in 1950, “power changed hands peacefully.” Celal Bayar, a private banker, became Turkey’s president. This is often referred to as the inflection point in Turkish politics, as with the end of one-party rule “came a distinction between the state elites of military leaders and bureaucrats and the political elites represented by elected officers.” As it was the case in the past, the tension between those state elites who subscribed to secularism and nationalism as a way of reinforcing Turkey’s interest to remain internationally competitive, and the political elites who were more sensitive to electoral impulses, reemerged from a period of dormancy. However, more important was Turkey’s shift from the previous paradigm of “security maximization,” to one of “prosperity maximization.” Democracy, for the newly elected political elites in power, was seen as the only legitimate way of catering to the “wishes of the people.”

However, the prospect of democratic consolidation was cut short in 1960 when the military intervened by means of a coup d’etat. In 1980, the military intervened once again, this time imposing the dissolution of all political parties. To fill in the newly created void, the military tried to impose a two-party system that although was favoured by military commanders, failed to materialize. The 1971 forced change in government by the military, acts as a further example of the instability of Turkish politics in the past.

Ilter Turan argues that there needs to be a reassessment of the extent to which politics in Turkey has really been a stable undertaking. While the current Turkish President, Ahmet Necdet Sezer is himself a state elite and staunch advocate of “strict secularism and absolute national sovereignty,” the Turkish Prime Minister is less divorced from electoral politics. Recep Tayyip Erdogan is Turkey’s PM and while his party, the Justice and Development Party (or AKP) are comfortable in power, with a majority of seats in parliament under their control, it is doubtful whether the up and coming presidential elections, in May of 2007, will see Erdogan succeed Sezer.

Turkey-EU Relations Background

Turkey signed an Association Agreement with the EU in 1963. In 1987 Turkey applied for EU membership but was rejected in 1987 due to a lack of economic development, a political and civil rights deficit, and a chronic unemployment rate that was considered to destabilize EU markets. In 1995, a Customs Agreement was negotiated and signed, followed by the EU Commission’s decision in 1997, at the Luxembourg summit, to not grant candidate status to Turkey. However, new membership talks started once again in 1999. While Turkey was invited in 1999 by the European Council in Helsinki to join the CEEC (Central and Eastern European Countries) candidates, the European Commission refused to “set up a timetable for starting accession talks.” Once again, the lack of political and economic reform was cited as having been the impetus driving the decision to refrain from taking the revolutionary step of accepting Turkey into the European club.

While Turkey reopened negations with the EU, after significant political, civil and legal reforms had been implemented, the EU had once again made its position clear: that “Turkey would have to be in full formal compliance with the Copenhagen criteria,” as adopted at the EU summit in Denmark in 1993, if it is to be considered. The primary features of this Copenhagen criteria ask that Turkey “(i) be a stable democracy, respecting human rights, the rule of law and the protection of minorities, have (ii) a functioning market economy and the capacity to cope with the competitive pressures and market forces within the Union and (iii) adopt the common rules, standards and policies that make up the body of EU law,” (also known as the acquis communitaire). As it currently stands, Turkey will have to wait until 2014 (at the earliest), before being given the green light to accede.

Secularism Unpacked

It could be argued that multiculturalism is no longer an example of successful policy in some European countries. While violence has nonetheless been a prominent feature of events in France, Germany and the Netherlands, violence alone says little about the underlying tensions causing it. What may perhaps help bridge the gap between cause and effect is a discussion of the role of religion in the public affairs of the state. Reality in Europe dictates that “ambiguity and ambivalence embedded in the connection between religion and secular European modernity,” is actually indicative of the “far from settled” interconnections between “religion, secularism and multiculturalism.”

Fuat Keyman asks us to revisit Turkey’s secular past and be conscious of the challenge Islam “and its powerful symbolic and cultural role,” has constantly posed to Turkish Kemalist secularism. Keyman is a proponent of Turkish-EU integration. However, this is not what matters. His analysis of secularism leads him to observe that while authoritarian secularism in Turkey was successfully institutionalized so as to maintain an objective “social-structural process,” this was only half the battle. An assumption that secularism is an inherent corollary of modernity, and that private individuals will proportionally adopt rational interpretations of their surroundings, the more acute modernity becomes, failed. In fact, the opposite of this has happened. Islam in Turkey, never having fully been discarded by private citizens, acted as the paradigm in which uncertainty was made more certain. Although Turkish history is dominated by laicist repression of religious manifestations, both in public and private life, it also speaks of the “inability to respond to the various Islamic identity claims to recognition and cultural-group rights.”

The tension between Turkish state elites, committed to maintaining secularism, and political elites, more sensitive to the identity claims and cultural-group rights of their respective electorate, has recently become more apparent. The European Union’s hesitant response to Turkish-EU accession negotiations however, has actually more to do with Europe than Turkey. This irony is made clear by Elizabeth Hurd when she argues that the latest strand of Turkish secularism, neither traditional laicism (or Kemalism, a version of laicism), nor “Judeo-Christian” secularism, “threatens not only the Kemalist establishment in Turkey but European secularists as well.” Furthermore, the implications of this phenomenon are such that “Turkey’s potential accession to the EU has propelled the controversial question of what it means to be both ‘secular’ and ‘European’ into the public spotlight.” In other words, questions of the role of religion in politics, previously perceived to have been historically resolved, have reappeared. However, as Hurd approximates Keyman when she says that the reasons why such questions have been awoken from a prolonged period of subdued dormancy, have everything to do with the fact that approaches to religion and to religious minorities, are not “set in stone but must be constantly renegotiated.”

Hurd outlines the paradigms in which both European secularists and European exclusivists (read: Judeo-Christian secularists) operate. The ethnocentric biases are beyond obvious. For Judeo-Christians, “secularist separation of religion from politics,” is a unique “Western achievement that is superior to its non-Western rivals.” Furthermore, the inability of “others,” non Judeo-Christians to transcend these fixed definitional presuppositions, disables Islamic societies to fully realize true secularism. Inclusive European laicists or secularists are equally biased and ethnocentric. This line of argument maintains that Turkey only differs “from Europe solely in terms of acquired characteristics.” Turkish accession to the EU will only be made possible when these “shortcomings,” will be “overcome through the importation of Western-style democracy and the secularization of politics and society.”

When the introduction mentioned that France would completely miss the point, if it would leave the question of whether Turkey should or should not join the EU, to its electorate, it was not by any means an attack on democratic principle of majoritarian politics. It was actually a criticism of the lack-of democratic sensitivities in France, to those cultural and religious minorities within their own borders. The shift currently taking place in Turkey, while framed as an erosion of secularism by some, is actually becoming more sensitive to actual electoral and political realities. This is not to say that Turkey is a textbook example of how a perfect democracy should be. To make such an argument would be a mistake. However, and as Hurd herself leaves open to interpretation, secularism is a social construct that can be broken down, contested and reconstructed. Perhaps Hurd’s most crucial contribution comes at the end of her article, when she makes it explicit that, notwithstanding her main argument that Europe would have to revisit its own understanding of secularism (before Turkish integration into the EU will be successful),

If Europe cannot be articulated in terms of complex space and complex time that allow for multiple ways of life (and not merely multiple identities) to flourish, it may be fated to be no more than the common market of an imperial civilization, always anxious about (Muslim) exiles within its gates and (Muslim) barbarians beyond.

John Redmond makes it explicit that if Turkey is to join, it must do so as a full member. Anything less than full membership is worrisome for the following reasons. First, Turkey would not have access to the EU single market, thereby making the economic benefits of integration political (and for security purposes) only. Second, there would be a lack of structural funds flowing from the European Union to Turkey. Third, the most important reason of all, Turkey would have “no seat at the EU decision-making table.” It is important to ask the question of why Turkey would even be considered as a second-class member. The main argument for this however is unfortunately one designed with populist politics in mind and not something premised on a more cogent line of reasoning.

To quote Redmond, Turkey is still “seen as an outsider to the European mainstream, condemned to irresolvable difference from its western neighbours on historical, religious and cultural grounds.” The general European public finds Turkey to be “too big, too poor, too far away and too Islamic.” In other words, Turkey does not fit into the social construct that goes by the name of “Europeanness.” Redmond himself points out that this is but “a ludicrous concept,” a distraction from factual reality that speaks of the purpose of EU integration as still being “predominantly economic.” However, Turkish economics and the success of organizations such as MUSIAD (Independent Industrialists’ and Businessmen’s Association) have proved that Islam is compatible with market-based economies and the democratic tendencies that follow as by-products of such markets.

Economics

Mousseau presents his argument in a rather straightforward way. Corruption and little respect for law are both cushioned between “collective, traditional and social associations for income” and “state-led, feudal or command economies.” Contracts bind individuals and create “cooperation, compromise and tolerance of different interests.” Individuals have an interest in maintaining the rule of law so as to protect these agreements or contracts between them. When disagreements surface, the state intervenes and acts as a dispute resolution mechanism. Limiting the role of the state in this sense would therefore require a thin understanding of a liberal democracy.

However, a duality exists between maintaining state neutrality both in politics and economic endeavors on one hand, and the establishing of electorally sensitive political parties. The rise of the Turkish private sector during the 1980s and 1990s, has replaced “Turkey’s clientalist politics with the market and rule of law.” If one is to entertain Mousseau’s argument, that market economies and the opportunities attached to them, will eventually and naturally lead Turkey to adopt Western-style civil-rights and democracy, then the reality that culturally and traditionally loaded Islamic capitalism can succeed and has succeeded, fails to be recognized as an alternative mean to a similar end.

Analysis

Part I

There are a few scenarios that could unfold. The first is that Turkey will not end up joining the European Union. However, this would offer more costs than benefits for a few reasons. One such reason is that the current public antagonism towards Turkey and Islam will only become more acrimonious. The dehumanization and disconnection between the EU (read: the West) and Turkey (read: the East) cannot possibly have any positive consequences. Turkey is not Europe’s or the West’s enemy. Islam is not incompatible with democracy and it certainly isn’t incompatible with market-based liberal economies.

The duality that is found in the EU’s acquis communitaire is indicative of the double standards of such institution. While the EU’s Copenhagen criteria may push turkey towards maintaining the current secularist status-quo, this is simply unacceptable if Turkey is also to develop an electorally sensitive democracy. Religion, and more importantly, Islam, has and will continue to dominate both private and increasingly as of late, public life. As it has been pointed out before, secularism is a construct that is constantly being reinterpreted to keep in-sync with the dynamic complexities of change. In other words, the ethnocentric features of EU’s integration process is borderline imperialistic, failing to address local and regional uniqueness and even more worryingly, as is the case in Turkey, inadvertently preventing democracy fundamentals from taking root. It is precisely because of this, that Turkey’s future cannot be said to be less certain or more bleak as a result of not having been made a full member of the European Union.

However, if Turkey is to join the European Union, this will need to be more than just a mechanical and technical process. Europe, as was the point of some of the authors discussed, must engage in redefining for themselves the role of religion in society and the extent to which secularism is but a superficial and ignorant misunderstanding of the more bona fide realities of pragmatic politics. Sure Turkey will have access to structural funds, the promising EU single-market and a seat at the decision-making table. This unfortunately does not suffice. Market-oriented economics and the contracts that provides the glue that holds it all together simply cannot function if the European courts put in charge of arbitrating contract disputes, cloak their bias towards EU parties in rhetoric that dehumanizes Islam by maintaining the “us” (read: the West, the good) versus “them” (read: the East, the bad, the enemies) paradigm.

Part II

Seeing Islam as a problem in need of a solution is also particularly problematic. The questions of whether the European Union is engaged in an economic integration exercise, or in a political and ideological one, is arguable. There is a sense that Islam belongs to a crude, unjust and barbaric past, incompatible with a more modern understanding of secular democracy and rationally founded and sound public policy. However, the sophisticated present, with all its modern bells and whistles, has not yet been fully successful at creating electorally sensitive political parties, nor has it yet been entirely successful at completely eschewing religion from the subjective life of private individuals. This is true for both Europe and Turkey.

Although not entirely part of the scope of this paper, racial and cultural discrimination and distinctions are arguably corollaries of a wider accepted gamut of scientifically derived, and culturally based, evaluations of what is and isn’t rational. In addition to this, public awareness and public scrutiny of social and cultural constructs may not be sufficient to safeguard from the potential pathologies of the imperialist nature of Western rationality. A further dimension is required, one that asks the electorate in both Turkey and Europe to critically engage, debate and discuss the possible effects of a Turkey-EU integration, or the lack thereof.

Conclusion

Turkey’s democracy is moving towards becoming more electorally responsive and, contrary to the more ominous suspicions of some of its critics, not relapsing into a tyrannical display of Islamic authoritarianism. A wider recognition of human rights as they apply both to minorities as well as dominant cultural and religious groups, will naturally follow as a result of this. However, the key catalyst providing the impetus for the aforementioned, as argued by Mousseau, is the introduction of a liberal market economy and the possibility for economic opportunities that, albeit loaded with Islamic traditional values of community and reciprocal trust, produce beneficial results and allows for the further development and subsequent consolidation Turkey’s democracy.

Future relations between the West and East, the European Union and Turkey, will depend on both European reevaluations of the role of religion and secularist constructs, as well as on future Turkish advancements towards a more open society, sensitive to unique regional cultural minorities and majorities. However, if the EU persists on applying its conditions for membership through a top-down approach, as if to say that only Western modernity and rationality is democratic, Turkey will simply end up with having swapped the Kemalist state elites, one hegemon, for another, the EU technocrats. This dilemma forms a paradox that is missing from current debates on Turkish-EU affairs; one that needs to be further studied, discussed and appreciated.


Vlad Popescu

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eu series: hegemonism – an eu love affair

Enlarging the European Union to include “new” member states is an ambitious and fascinating political project. Controversy however, does exist. Expanding the EU is an ideological exercise that strives to provide the impetus for the spread of neo-liberal market policies as well as other fundamental “democratic” concepts that may include a commitment to human rights, rule of law, transparency and elements of consociationalism. It is a function of reality and pragmatic constraints, that not everyone and not every political agenda can be accommodated.

Our Choice Is Peace?

The difficulty with failing to provide political outlets for those parties that may find themselves on the extremities or fringes of the political decision making process may find other means by which to manifest their grievances, often times using methods that have been captured by those terms such as “corruption,” “illicit” and “shadow” or “under- ground.”

As the EU looks to the East and the Balkan states to provide future economic markets, cheap labour, intellectual and natural resources, geopolitical advantages, as well as other strategic dimensions that make up the EU’s own “manifest destiny,” it is imperative if not counterintuitive and potentially catastrophic politically, if no measures are taken to accommodate the uniqueness of local and regional problems as well as solutions. The EU has systematically confused accommodation for supremacy and top-down “dictatorship” in key areas such as energy security, foreign policy and corruption. A failure to rethink accommodation in the EU may have history repeat itself with “second revolution” being a potential consequence.

The harmonization of local “laws” with the EU’s body of laws, otherwise known by the catch-all phrase, acquis communitaire, is bound to introduce a remapping or shifting of both political and economic actors. New winners become losers while old losers may find themselves on the other side of the spectrum. To reiterate the above is not to introduce something new, quite the contrary. Political and economic actors are constantly in flux. Traditionally, power sharing is explicitly desirable and opposition healthy; competition, or the antagonistic interplay between two parties competing for a limited-supply resource produces beneficial economic and “political” byproducts.

With the end of the Cold War and the disintegration of the Soviet regime, East Europe had been left without a governing hegemon. Criticisms aimed at undermining Soviet rule can also be applied to East Europe’s new hegemon, the European Union. East Europe and those living in East Europe have probably turned to the West in search for a panacea solution to their internal political and economic chaos. If freedom from Soviet-rule was, in retrospect, presupposing a departure from “colonialism” and “quasi-sovereignty,” looking forward, EU-rule will be a restoration of the very same things Eastern Europe was expecting to free itself from.

Commonplace energy rhetoric is often bundled with a normative pursuit of democracy. Rather alarmingly, EU’s energy commissioner, Andris Piebalgs, made explicit that “[t]he best way to create EU energy security is to export market economy values to suppliers such as Russia and the Middle East.” By throwing its political and economic weight around, the EU is trying to reconcile the uncertainty that is “foreign” or “alien” approaches to governance with their own version of market economics. If the EU’s is not prepared or willing to negotiate with players outside their geographical and ideological borders, what sort of example is that setting for the newly accessed East European countries, as well as those to be accessed, Romania and Bulgaria, in January 2007. To proceed with caution would be an understatement.

Furthermore, as an example, Germany and Poland have “failed to see eye-to-eye on the second major issue of energy, with the Polish leader sticking to his opposition against Germany’s plans to build a direct gas pipeline to Russia under the Baltic Sea, bypassing Poland.” This is, again, certainly nothing new. Anyone, with even the most limited background in history understands, not just as a result of World War II, but previous historical events as well, that Poland sovereignty is a sensitive issue for many Poles. To bypass such sovereignty, in this case the justification being that Germany must secure energy supplies and Russia is an appealing as well as suitable supplier, is to yet again, reinforce what has just been previously been said that the EU simply cannot dismiss the unique local socio-political make-up. To have German Chancellor Merkel offer to a “branch from the pipeline to Poland,” allowing for the possibility of a “valve-shut-off,” a-la Ukraine during early 2007, stands to prove the German approach as being unilateral and for the most part, politically ignominious.

Poland has voiced, through President Kaczynski, their sovereign desire to achieve energy security through “supply diversification,” a policy and initiative that includes a commitment by the “Western” countries through the “linking [of] energy grids” and the “enshrining of principles at the [EU] treaty level.” It is without doubt that given the latest rounds of accession, the EU has observed an increase in oil and gas imports and consumption. These rates stand to further rise, as the newly annexed countries have “weak internal hydrocarbon production.”

With the Baltic States looking to “reduce the number of Russian investors for historical and geopolitical reasons,” and the EU seeking to secure policy that is founded on treaty law (something that has yet to happen) with Russia, it will be interesting to observe the extent to which supra-national interests will trump national ones. Vladimir Putin has already expressed his concerns over allegations that Russia has continued to transgress human-rights law (for some a jus cogens principle), stating that Russia did not invent the word “mafia.” Whether or not that stands to be of any significance, it not only reminds the EU of its own past corruption scandals and political malfeasance, but rather antithetically speaks of the hypocrite nature of the disparity between EU practice and EU foreign policy. To provide examples, France’s experience with Jacques Chirac’s sloth during his tenancy as mayor of Paris, as well as the 1991 “Lafayette Deal” between France and Taiwan, both speak for the reality that is corruption and the exploitation of office for personal gain, with different repercussions and consequences for different countries.

In addition, British Euro-skeptics often find it extremely difficult to reconcile the benefits of the current status-quo that is EU’s civil-law legal system, with the UK’s traditional common-law system. EU Criminal Law overrides national provisions, regardless of opposition from local governments. All breaches of EU law are subject to sanctions that can be imposed by the EU Commission, an un-elected body in Brussels, which also has the right to propose and define what those criminal sanctions will be by definition (with a majority vote of Council of Members needed).

The above is an example of how as a supra-national institution, the EU is not always making unanimous decisions or implementing policy that is accommodating of all. It would be dangerous to make such an assumption by implying it. While current governments of the day can be said to be pro-EU, opposition and dissent do exist, even within veteran states, at both political and civil society levels.

Questioning EU’s future prospects is an exercise bound to introduce arguments from both Euro-skeptics as well as EU proponents. However, given current “policy” approaches that adopt measures more akin to imposed dictatorship, dissatisfaction either from old member states or newly accessed member states is bound to, in the future, undermine the traditional EU objective of uniting to reinforce national commitments that provide and oversee all “essential services” – as dictated by accompanying political mandates.

The EU constantly echoes those principles on paper. In reality, the truth points into other directions, directions that are not “consociational” or “accommodating” in nature, but rather disappointingly, the opposite.

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