Human Nature

Is it only me, or is it true that most professors (and students) in gender studies are either women or gay men? I never seriously surveyed every law school faculty, but my gut feeling tends to say that this really is the case.
In a way, it's kind of sad. We teach ourselves that the law is a social tool that promotes equality to all members of society. I think that a more proper definition is that the law is a social tool through which disenfranchised minorities are able to claim their own equality. Not that this is a bad thing. It's good to have a social field in which people can struggle for their rights without violence and with a pretty good chance of getting what they deserve. It's just a shame to find out that, still, people actively fight mostly for their own rights, and much less for the rights of others. They might vigorously support such a struggle, but not really engage in its promotion.
So next time you're born into a minority group, at least make sure you're born to a relatively large and educated one. Otherwise you might find that you're really screwed.

On Nations and States: What does It Mean to be Russian?

In the past few days I had a few conversations with several people about those vague things called state, nation, and people. Some of it came up with regards to the Swiss referendum I talked about in my last post. A little bit more was in the contexts of those things that certain people tend to call 'un-American'. A friend is writing a paper about the way Russia refuses to treat people with HIV/AIDS because it is considered an evidence of moral turpitude, and therefore it is "not Russian"and undeserving of state funds. In all those cases, it seems as if the people, or maybe just some of the people, have this image of what it means to be part of a nation - something that is more than just being a citizen of the country.
Nations, in all those cases, hold certain values more important than others, and define themselves through them. "To be American means to be honest and hard working". "To be Russian means to be of moral character". "To be West-European is to be Christian, or at least to keep your religion a private matter." I can understand such sentences if they describe a reality. But then they should have started "some Americans are..." or "Most West Europeans are...". Otherwise, it is clear that they are not true statements. After all, not all Americans are honest, not all Russians are of good moral character, and so on.
I can also understand them as aspirations: "Americans/Russians/West Europeans should be...". But that's where things become dangerous. To what extent should countries educate their citizens to be one thing or the other? On one hand, I feel a liberal impulse to say that countries should be empty of any values - they should provide their citizens with fundamental services and that's it.
On the other hand, the Netherlands (or so I've heard) make immigrants sign a statement that they acknowledge the fact that in the Netherlands they are likely to see gay men show affection to each other and that they are ok with that. That sounds to me a lot like like the sentences we started with, something like "Dutch people are tolerant". This is more than just a descriptive statement - it is a demand of those who want to become Dutch. But the fact that it is a demand doesn't make it unacceptable. On the contrary, if one society has managed to create a safe haven for minorities, it makes sense for that state to protect itself from outsiders who would not be tolerant towards them. I see it as if the state weighs the well being and aspirations of gay citizens against those of intolerant immigrants (after all, the tolerant immigrants are naturalized) and rightly prefers those of its own citizens.
So it is clear that a state can educate to some values. I also think that education to good moral nature or honesty is just as valid an as targets as toleration. I even think that it's ok for a state to have a public religion. So where's the line? Why do the statements cited at the beginning of this post hurt the ear so much?
It seems to me that the answer is not in the permissive roles of the state, but in the state-nation relations. A state may attempt to educate its citizens. But pulling the population in one direction does not mean that whoever isn't pulled is not part of the nation. States may have values. Nations should not. So the United States may promote the values of honesty and hard work. But it must be recognized that you are part of the American nation even if you are lazy and deceitful, if only you are a citizen. (It's a little hard to use the Russian example since it's outrageous to think that HIV/AIDS says something of a person's morality, but let's assume for a minute that that was true -) Russia may encourage moral behaviour. But failure to follow doesn't make you not Russian. It only makes you an immoral Russian. If you hold citizenship, you deserve treatment. It's like saying that New York is a fun place, and that the municipality encourages the exciting and eventful image of the city. But if you live in New York, you're still a New Yorker even if you're boring.
It's easy to forget that. So many times minority groups are treated as a superfluous addition to 'the real thing'. As if France is for Christians, and Muslim immigrants are factually there, but don't really belong. They could have been anywhere else just the same. As if Israel is for Jews, and the Arabs accidentally live in the same territory, they deserve rights and all, but do not count as part of the people we talk about when we refer to 'Israelies'.
Lately, the Cohen brothers' magnificent movie 'A Serious Man' was distributed in Israel under the name 'A Good Jew'. Even if disregarding for a moment the artistic vandalism - did the translators feel that Israeli Arabs would not be a potential crowd for this movie? I mean, they might not be good Jews, but I'm sure they can be serious people.

Transracial

Back in the beginning of the 20th century, many of the United State's Southern countries adopted some kind or another of the 'one drop' rule, determining that any person with any kind of African ancestry - 'one drop of black blood' - is black. I guess that made sense for those who tried to keep the white race 'pure'. But surprisingly enough, the same rule - although long abolished from the law - is still used as a determining test by those today who try to define what 'black' is, even (and perhaps most prominently) by those who consider themselves to be black.
It's interesting, because 'black' is a completely socially invented classification. I mean, if 'black' would have referred to dissent, as does 'African American', I'd assume that in a non-racist world one would have been referred to as what one is, or at least as what one is more. That is, a person with one African American grate-grandparent and seven European grate-grandparents should be referred to as 'bi-racial', since that person is of 'mixed dissent'. And indeed the term 'bi-racial' does exists, but no one really uses it, nor does society refer to such a person as 'white' either. Bi-racial people are 'black' even when they have more 'white blood' running through their veins. (and watch Wanda sykes's comments on President Obama's race at the 2009 White House Correspondents' Dinner.)
So 'black' isn't really about genes or ancestry. It's really much more about life experience, social background, and self-identification. If taking President Obama as an example once again, he writes in his book, Dreams from My Father, that he adopted the African American identity (meaning, the 'black' identity) only as a young adult, after encountering racism and deepening his knowledge of the story of slavery and emancipation in the United States. Thinking about it, Obama isn't 'black' at all in the regular sense of the word. His mother is 'white' and his father was an African student living in the United States. None of his ancestors were brought to America by slave owners, or lived through decades of discrimination. He is partly of African dissent; and he's American; but he chose to adopt the 'black' identity.
So can anyone adopt a 'black' identity? Of course, this is a question about all kinds of racial identities., and not just the 'black' one. Can someone opt-out of his or her race? The first answer that comes to mind might connect racial identity with the color of your skin. Well, Michael Jackson took care of that, didn't he? Did that make him 'white'? Is it just a matter of a simple operation and, much like transexuals, the question of racial identification can be solved on the slab?
Honestly, I think the answer is no, but only because I don't think it should be left to medicine to determine who and what we are. A few years back, legal and social discourse made the clear distinction between 'sex' and 'gender'. Sex is what reproduction organs you have; gender is who you feel that you are. Maybe the same distinction should be made with regards to 'dissent' and 'race'. My dissent is determined by my parents dissent, and their parents' before them. Nothing can change that. But my race? Completely up to me, to the social story I identify with, and to my choices in life. Personally, this is why I never tick the box next to 'caucasian' when asked for my race. I feel much more like an 'other'.

Cross-Defining and Trans-classifications

As Robert Cover said in his famous article "Nomos and Narrative," law is a world of definitions, which give everything and anything a meaning. The more you look at the law, the more you realize that Cover is right. A legal system is a collection of definitions - what is property, what is a binding contract, what is a citizen, what is illegal possession and so on. The law works through classifications - it creates terms and define them, then it collects together all the acts, things, and people that fall under these classifications. For example, in order to enforce a sign that prohibits the use of vehicles in the park, the law must define what is and what isn't a vehicle. Such a law would usually look like this:

"Sec 1: All vehicles are prohibited from entering the park.
Sec 2: A vehicle is a means of carrying or transporting something."

This law creates the classification 'vehicle', defines it, and then the system (usually the court which enforces the law) would apply that classification to specific objects that are involved in cases brought before it.

In certain cases and in certain legal systems, the statute might avoid a generally applicable definition of what a vehicle is, and in stead would give some examples for what it means. It could look like this:

"Sec 2: A vehicle - including cars, trucks, and motorcycles."

This is, of course, a different kind of definition. Rather than defining the term, the statute starts the process of classifying, with the intention that those who use the law (such as citizens, police officers, and courts) would inductively understand what other things can be defined as vehicles and continue the process of classification.

It's true that, even after reading the sign and the law that backs it, we might still find ourselves standing in the park, not knowing if what we are about to take onto its grounds is allowed or not. Does the sign prohibit riding bicycles in the park? And what about a monument for car accident victims, in the form of a wrecked car? Are those things vehicles? We might not know the answer to these questions, yet we know how to answer them: we must look at the thing at hand, determine whether it is part of the group of things the law is referring to, and classify it accordingly. (Now, there might be disagreement as to how to make that classification, and when such deliberation is even required. The sign in the park example was first used by H.L.A Hart and Lon Fuller in their famous debate in the 1958 Harvard Law Review, regarding the morality of law, and the way to understand it. Hart claimed that while we might not know if some things are vehicles or not, it is mostly clear to us what the law talks about when it refers to a vehicle. Fuller, on the other hand, claimed that any kind of classification requires interpretation, and that the term 'vehicle' means nothing until we look into the particular law's purpose in order to learn what it meant to say. Either way, though, we will end up with one group of things that are 'vehicles' and one group of things that are not.)

So, to sum it up, this is how the law works. It creates a classification (vehicles), and then tells us what to do or not to do with it (not let it in the park). Then anyone who uses the law (citizens, police officers, and courts) looks at the specific case that requires the application of the law and apply that classification to it (a car is a vehicle, therefore it is not allowed in the park. A bag isn't a vehicle, therefore it is allowed). This, of course, doesn't apply only to vehicles and parks. The law defines what is a 'narcotic drug' and by that divides all substances to things that are narcotic drugs and things that are not. It defines what 'rape' is, and by that divides all sexual acts to rape cases and consensual sex. The law defines rights in real property and by that classifies who is and who isn't a 'tresspassor'.

But should every human interaction be defined and classified in such a way? Should every thing in life be described as a part of a group of similar things? Could it be done at all? Think about it for a moment. Defining something by a specific term strips it - even if only for the purposes of that sentence - of everything else that thing is. It also strips us of any other classification that could be used to describe the range of things we are trying to classify. For example, saying that 'Ron is a male' strips Ron of everything else that he is: kind, student, short, brown-eyed, Dutch, vegetarian, etc. It also steals from us the distinction between different kinds of things that are all 'male' but are in reality very different from each other. If Ron is 25 years old, his male-ness is quite different from that of a year old infant who is also a male. If Ron is a homosexual it could be argued (as some do) that his male-ness is also different from that of a straight person who is also a male. But in the range of classifications that the classification 'male' is part of, these kinds of differences disappear, eventhough they are of the same metter. On this scale, one is either a 'male', 'female', or 'intersexual'. We simply do not offer any other classification, and those we offer are not enough.

There are ranges in which language has adopted a much more reasonable approach. When speaking of religions, for instance, people usually refer to themselves or others as 'Christian' (rather than 'a Christian') or 'Jewish' (rather than 'a Jew') . In the sentence 'Ron is Christian', the word 'Christian' serves as an adjective (yea yea, it might not be an adjective grammatically, but you get what I mean). It describes Ron rather than defines him. 'Ron is a Jew' sounds much more blunt that 'Ron is Jewish', that in turn leaves Ron room to be a lot of other things as well.

My point is that maybe it's time for the law to adopt a similar approach. Instead of categorizing things by defining them, perhaps the law should create a plain of categories, and then a plain of things - acts, objects, people. These plains would not mix - things won't be classified as part of categories. Rather, law would stretch a link between the thing and the category, and by that describe one attribute of that thing, leaving the thing itself undefined. Defining and classifying are attached to the object and might follow it to other contexts. So if we classify bikes as vehicles, we will have to deal with the question if they should be allowed on sidewalks (after all, other vehicles aren't) and if they should require a permit and age limit (after all, other vehicles do). And if bikes shouldn't be allowed on the side walk but shouldn't require a permit, what kind of a vehicle are they?! On the other hand, leaving aside definitions and asking just what things should be treated like when we stand at a park's gate seems a lot easier. Bikes are like vehicles in that they disturb people lying on the grass or striding in the paths. Therefore their use should be prohibited in the park. We don't know if bikes are vehicles, and we don't care. What we do know is that bikes have one vehicle-ish attribute to them, and that leaves them outside the park's premises.

This all becomes much more acute when we start talking about gender (cause really, bikes were only the introduction). If Ron was born in a man's body but identifies as a woman, is Ron a man or a woman? The law answers that with a clean cut - you are what your body is. The even less liberal answer is, of course, you are what you were born as. And that could lead to cruel and unusual results. Nonetheless, in certain instances gender cannot be disregarded altogether. By classifying Ron as either a man or a woman the law is unable to answer the complexity of the situation. However, by not asking that question, and asking instead 'how a person should be treated in a certain case', we can avoid the useless definition of what Ron is. For example, in legal issues related to sexual conducts a person should be treated according to the way he or she defines her or himself. That is, if one sees oneself as a male regardless of female genitalia, than one is not impersonating another when introducing himself as a male to potential sexual partners. (Unfortunately, courts tend to rule otherwise. See here in two pages and here in much more.) At the same time, when sentencing one to prison, it might be best to incarcerate all those who show a complex gender-identity with other women, rather than with other men, regardless of self-definition, in order to protect their safety. That doesn't mean they are women, it only means that in this case they should be treated the same way women do. On medical records, however, people should be registered according to their physical gender, in order to receive the appropriate treatment in case of emergency. This too doesn't mean they are what they are registered as in those records. Only that they would be treated as such if and when the need arises.
The world is too complex to be seen only through traditional legal eyes. Definitions and classifications change according to circumstances and in time, and the law must be responsive to these changes. If human existence is complex and diverse, the law should accommodate this diversity in order to reflect real life, rather than limit it into its self-created boxes.

And this is really interesting too.

Face, Race, and Impartiality

(I came to thinking about the following issue after reading the Goldstone report, but thoughts of this sort are running through my mind for quite some time now. I'm casting this stone into the cyber pond in hope that maybe someone would have something to add. As you will see, this is all just a beginning of a thought with no conclusion.)

The Goldstone report was issued by the committee of the Human Rights Council appointed to investigate human rights violations during the Israeli operation in the Gaza Strip in December 2008 and January '09. Among many other points regarding both sides to the conflict, the committee noted with concern that "[o]f protesters brought before the Israeli courts, it was the Palestinian Israelis who were disproportionately held in detention pending trial."
This conclusion seems to fit in well with my little experience with the Israeli system. To be clear, I have never seen or heard of a case in which a judge has intentionally or knowingly discriminated against a Palestinian Israeli brought before him. Not even close. However, unintentional and unconscious discrimination is quite clearly taking place.
The Israeli detention procedure is one of the most liberal detention processes that I know of. The police has the right to hold a person for detention only for a very limited number of reasons, and such a person must be brought before a judge or released within 24 hours from the time of the detention. Once a hearing is held, the judge may extend the detention only if the detainee is dangerous to his surroundings or the public in general, if he is likely to flee before his trial, or for special investigatory purposes.
Now, since the trial has not yet begun, the judge in the hearing is confronted with preliminary evidence provided by the prosecution, and an alternate explanation provided by the defense. After hearing both sides the judge must decide whether one of the reasons for detentions mentioned above applies, or whether the detainee can be released (either to house arrest or with no limiting conditions). Without conducting the survey, it seems to me that the most common reason used for prolonging of detention periods is that the detainee is that of the 'assumption of dangerousness'.
And here's the tricky part: more than one research show, that judges tend to assume that persons of similar background as their are less dangerous than those unknown to them. To (over)simplify the argument, a judge that sees a detainee with a similar background to hers feels as if she can understand his motives and tends to judge him less severely. persons of other backgrounds are usually less empathized with and portrayed according to racial/cultural stereotypes. Obviously, this is not something that's unique to the Israeli detention procedure. The research I linked above was conducted in the USA with regards to whites, blacks and Koreans, and the same problem can be shown to exists in any multicultural state around the globe.
Yet this issue becomes more crucial in legal procedures that are based almost solely on the judge's assessment of the facts, made in order to evaluate how dangerous the detainee is. It's as if cultural and racial minorities don't stand a chance in such a procedure, and there aren't many safeguards to protect them from such inequality.

I don't have a solution to this problem. Decisions regarding detentions are and should be made quickly, based on minimal amount of evidence, and without a substantial amount of litigation or witnesses. Even appointing more justices of minority backgrounds, a desired target in and of itself, might change the general statistics, but not solve the matter of any particular detainee. For such a detainee it would still be a matter of chance, whether he will or will not be lucky enough to have his case heard by a judge of a similar background. Since the appointment of judges for cases is arbitrary, there is no reassurance for a fair trial, not in the sense of the outcome nor in the sense of equal process.
So maybe what I wanted to say is just that these kinds of statements in human rights reports always seem to me to be the most disturbing. The way I see it, the army, the police, the government, the parliament, they can always go wrong, as they all have an intrinsic amount of violence in them. But the judicial system - that is the last frontier, meant to always raise a red flag against inequality and discrimination; protect the individual against the stronger powers of institutions. I guess it's just saddening to realize that the legal system can be tainted by inequality as well.


and here, not completely related, but what seems like a sincere expression of feelings and similar concerns of an African-American father.

On Facebook and Issues of Nationality

If you have a Facebook account (of course you do, who doesn't?) then you must know that in order to set up your account you must choose which social networks you are interested in joining. Now, the primary network anyone usually connects herself to is a regional network, and that is usually the city, the state, or the country one lives in. This has an effect on the profiles you gain access to, and those who gain access to your profile (usually, most profiles are set to allow viewing only by other people of the same network).
Interestingly, one can only be a member of one regional network at any given time. That means that I, as an Israeli student abroad, must affiliate myself either as in Israeli or as a New Yorker. For Facebook, I can't be both, but have to renounce one identity in order to adopt the other. You might say that I am an exception to the rule, and that most people live in one place, and have no need in access and affiliation with any social networks on the other side of the world. I'm sure that's less and less true with each year, but anyway, that's only half the point.

The other half is that some areas of the world simply don't follow the rule of such simple social/national connection. For example: Israel (surprise surprise). Lately, it appeared in the news that Facebook changed its regions database so that Israeli settlers in the West Bank would be able to list themselves as members of the Israeli social network, although they live outside the official borders of the state of Israel. In addition, Alquds Alarabi published a report today, stating that Syria will launch a campaign demanding a boycott of Facebook because it permits Israelis living on the Golan Heights to list themselves as Israelis (and here it is in English). And I can only guess that the same problems arise (in different magnitude, perhaps) in other areas of the world such as Tibet, Northern Ireland, or Quebec.

The thing is, that Facebook's networks are not about defining political borders and group nationalities. They are about an individual's social group - the individual who owns the account. When dealing with such an individual's nationality, applying geographical concepts starts to seem a little ridiculous. I mean, in the "real" world of facts of buildings and roads and electricity services, a city or a region can be a part of only one state, although sometimes which state that region is a part of is debatable. A person, however, can identify as belonging to more than one regional group. An ex-patriot would want to be a part of regional networks of both the the place he comes from and the place he is in now. Quite similarly, people living in places currently in political dispute would usually identify themselves one way or the other. It makes no sense to force the Golan Heights' Israeli citizens to belong to the Syrian social network, as they have nothing to look for there; their entire social connections lie within the state of Israel. At the same time, it seems important to allow the Druze population to identify as Syrian, according to their true identity, and following their actual lingual and cultural social connections.

So here's my point: in today's world social networking has less and less to do with geo-political borders. One might live on one side of the world and affiliate with a social group defined by its location on the other side. Two people living in the same region might have no social connections, identifying themselves as members of completely different (and sometimes conflicting) nationalities. This is why I find it funny that Facebook - a website that is (1) designated for social purposes and (2) has no existence outside the web - seems to cling so strongly to the "one person, one regional affiliation" conception. Seriously, don't the people in Facebook know that the internet knows no borders?

(For some more reading: the digital methods initiative)