Wolves and Enemy Combatants, Humanism and the Inhuman

This may seem a little crazy, but I am going to try here to stitch together several recent, disparate posts and comment threads, mainly by sharing part of the conclusion to Michael E. Moore's essay, "Wolves, Outlaws and Enemy Combatants," which serves as one of the chapters in what is now titled Cultural Studies of the Modern Middle Ages, ed. Eileen Joy, Myra Seaman, Kimberly Bell, and Mary Ramsey for Palgrave Macmillan's New Middle Ages series. [Go here for short precis of book, plus a chapter outline with brief chapter summaries.] Michael Moore, incidentally, is a historian of the Carolingian period, specializing especially in early law codes, and he is also a colleague of mine at Southern Illinois, and a good friend.

Although I suspect it is bad form to discuss these matters in public, we recently received the external reviewer's report for the volume and let's just say that many of us have some heavy revising to do, while at the same time, Palgrave is still committed to the book and it will likely be published in summer 2007. Nevertheless, I find myself continuing to be troubled and, I suppose, even a little depressed, at the notion, expressed by the reviewer [albeit with great politeness], that, perhaps, no one really wants to know what medieval scholars have to say about contemporary popular culture or current political issues, like the war on terror or the torture of enemy combatants at Abu Ghraib and Guantanamo Bay. Further, is it possible that some of the chapters that deal directly with policies of the Bush administration will be viewed as too polemical, and what does it mean to say, as I think the reviewer infers, that scholarship cannot [and should not] be polemical? In other words, scholars cannot choose sides, or appear to be choosing sides. And yet, I do not know how Steve Guthrie, another author in our book, could possibly have researched and written his chapter, "Torture, Inquisition, Medievalism, Reality, TV," without choosing sides. How can he not choose sides on the issue of the torture of prisoners by American military and intelligence personnel at Abu Ghraib and elsewhere, and might he not have an ethical responsibility as a scholar of the Middle Ages but also as a citizen of the world to not allow himself to take refuge in the so-called "place apart" of the university? Is it not a kind of crime to claim to only be academically, but not personally or politically, invested in the "history" of torture? What would it mean to be a neutral "scholar" of torture?

We have a vast body of scholarship, I believe, that has amply demonstrated that medieval scholarship is never completely disinterested nor fully objective, nor does it ever stand "outside" of anything [chief examples include Norman Cantor's Inventing the Middle Ages, Allen Frantzen's Desire for Origins, David Matthews's The Making of Middle English, and Stephanie Trigg's Congenal Souls]; at the same time, I believe there is some kind of general, often unspoken consensus within our field that our scholarship should always strive to be something that stands above politics and above personal bias. At the "same same same" time, we have scholars in our field wildly claiming that their work in, say, queer studies or feminist studies, is inherently politically liberatory [or "important"], while at the "same same same same" time, others point to that supposedly radically politically scholarship as "oh so politically lame" because its "real" social impact is too limited or nonexistent. Well, that about covers it, doesn't it? I think the fact that Bruce Holsinger is publishing his "pamphlet," Neomedievalism, Neoconservatism and the War on Terror, with Prickly Paradigm Press should tell us something about the lack of welcome within medieval studies publishing venues for what might be called an engaged, political medieval studies [and check out Prickly Paradigm Press, by the way--they're very cool and have actually preempted something I have been wanting to do with BABEL: create a venue for the "outside the box" scholarly "chapbook" or "novella"]. And there will be some in our field who won't read it for the very reason that it will not be appearing in the "usual" venue, whether as a longish article in Speculum or Exemplaria or as part of Minnesota's Medieval Cultures series.

When JJC plugged Bruce H.'s pamphlet, I was kind of amazed [and very happy, actually] that Holsinger has written such an essay, while at the same time I worried a little bit that it will pre-empt at least two of the chapters in our Palgrave book. Then again, in my mind, it can only be a good thing that several medieval studies scholars in their separate studies have ben thinking a lot about the Bush adminstration's use of what Holsinger terms the "neomedieval" in their assault on human rights, and also in their deepening of the divisions that exist within the international community. I would even go so far to say that, in three separate studies and in various places in the world, three medieval studies scholars [Holsinger, Moore, and Guthrie] allowed themselves to be troubled enough by the current state of affairs to devote their knowledge of premodern history and powers of critique [and yes, polemical critique] to what they see as a current crisis in contemporary human affairs [with the emphasis on human]. Although it may be, as Humphrey Bogart might have said, that all of their worrying and the writing that pours out of that worrying, might not amount to a hill of beans in this world. So this got me thinking, too [and again] about community and what we think we mean, as humanistic scholars, when we invoke the term. How are we, somehow, "with each other," as scholars [and against who?], and what other communities do we belong to that matter enough to choose sides with them? I don't quite know the answer, but I would like to offer here an excerpt from the conclusion to Michael Moore's essay as a possible beginning of a conversation on the subject:

from "Wolves, Outlaws and Enemy Combatants," by Michael Moore [an essay the chiefly deals with the White House legal memorandums on the torture of "enemy combatants" and also with the medieval practices of torture, exile and outlawry]

Humanism and the Inhuman

. . . . the question arises, whether any terrain still lies open for humanism, and whether a path can be discovered for the return of common law and the traditional concerns of politics. Tzvetan Todorov has suggested that to retrieve humanism, we should begin with the fact of community and our need for communal life. Developing certain principles and suggestions of Jean-Jacques Rousseau, Todorov hopes to develop a humanism based on lived experience, rather than ghostly abstractions: Rousseau discovered “a new conception of man as a being who needs others.” Todorov thus shows a reluctance to drink very deeply from the well of the Enlightenment. Alongside his renewal of humanism there is a revival and retrieval of classical philosophy, distant from the stilted vision of Leo Strauss: on the part of Pierre Hadot, Jean Vanier, and Comte-Sponville.

The hope of a renewed humanism can raise for us the theme of solidarity. Lasting friendships, the camaraderie of social groups, marriage, romantic partnerships and other binding solidarities seem to place philia or friendship at the heart of social order and the possibility of self-fulfillment. In his reading of Aristotle’s Nichomachean Ethics, Thomas Aquinas argued that the virtue of friendship with oneself and with others is the basis of political concord, which is “found among virtuous men.” Such persons “behave in such a way that they are in accord with themselves and one another” in their mutual striving for virtue. Thus for Cicero, who was in accord with the Aristotelian view, political isolation was desolation.

In contrast to all such themes of solidarity is the outlaw: the person who undermines the community and departs from it in vengeful solitude. The late-modern state, alongside other powerful forces such as economic globalization, seems to promote social fission and individualization: “There is a nasty fly of impotence in the sweet ointment of the kind of freedom that has been shaped through the pressures of individualization.” Thus it could be said that the possibility of community now lies somewhere between the State and the outlaw, both of which labor against it. Nevertheless, it is an old and durable idea that community and culture can only develop when people can find security from outlawry.

In the famous prologue of Thucydides’ Peloponnesian War, known as the Archaeology, the characteristic forms of Greek civilization, peaceful life and self-fulfillment in a city-state, only became possible with the end of piracy. The pirate was the solitary enemy of peace, communication and culture. For centuries the symbol of the wolf has been assigned to such persons.

But what does exclusion from the legal world and humanity mean in the contemporary world? Since 2002, as has been discussed above, the White House has maintained that the President of the United States can exclude certain individuals from the realm of law and the circle of humanity, by declaring them to be “enemy combatants.” Such persons are held to have no rights and can be protected neither by national laws nor by international treaties such as the Geneva Convention. Viewed as comparable to wolves, such persons are imprisoned without hope of trial and are not protected from the use of torture. The enemy combatant is an outcast, unable to claim any law. The creation of this category was intended to strip, rather than to assign, a legal identity. The person captured and suspected of involvement in terrorism becomes an exile from every land, and every law. Traditional restraints against the maltreatment of prisoners can be put aside: he is treated as a demonic being, wearing a wolf’s head, outside the law. The ‘enemy combatant’ thus appears to be a revival of a pre-modern legal category, which has reappeared while judicial process is once again said to lie in the hand of the prince. The jurist Johannes Monachus (d. 1313) long ago reasoned that in the following terms: “everyone should be presumed innocent unless proven guilty” [Item quilibet presumitur innocens nisi probetur nocens], a principle that he believed must even bind the popes. According to Kenneth Pennington, the reasoning of Johannes Monachus gradually became widely acknowledged as a principle that bound and regulated the prince: “the jurists even decided that justice demanded that the devil himself must be given a hearing in court.”

These symbols and concepts serve to exclude dangerous enemies and serve to strengthen a sense of American community. We live in dangerous times, it is often said, and new rules apply. But the turn to new rules might itself lead to new times. As Quentin Skinner reminds us, notions of liberty and independence of the early modern period resisted the notion that the rights of the citizen should lie in the powerful hands of a government. This doctrine, inscribed in the founding documents of the United States, is compromised by recent changes in legal and political doctrine. The acceptance of legal doctrines stripped of the notion of humanity would represent a change in the American legal constellation. The Declaration of Independence expressed an ideal of humanity as the subject of rights: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights. . .” It would be naïve to think that such ideals, developed in coffee shops and secret societies of the eighteenth century, at considerable personal risk to the thinkers, now reside safe by their inscription in an old document or because of their historical influence over the formation of a state which has changed considerably since then.

What has been introduced is the idea that rights are not endowed by the Creator but by currently existing political authorities, and then only if those regimes are judged to be viable, a viability to be determined by the executive power of the United States. The return of outlawry therefore has implications for a definition of the subject of rights and puts the idea of humanity into doubt. We are already asked to accept the principle that our civil liberties should yield to national security, and as Skinner rightly argues, this means accepting a certain level of servitude. It is extremely doubtful that the reduction of the sphere of rights will only affect the terrorist outlaw.

There has been a shift in the modern world, toward a situation in which the realm of positive law, the particular law of the state, has broken free from all comparison with higher laws, ethics, custom or common law. Thus according to Prodi, the modern State acts as if it its enactments and legal claims are not subject to any restraint or comparison with a higher or better law. This means that “human beings are now subjected to the absolute dictates of positive law and to the power and authority of the modern state.”

As long ago as 1995, in response to the growing absolutism of positive law, and the phenomenon of state intervention in the sphere of rights, Paul Ricoeur argued that we must reassert, in a new form, the inheritance of the Enlightenment, and thereby attempt to lay claim to “the rights of humanity, in the precise sense of this term—that is, the rights attached to human beings as human beings and not as members of some political community conceived of as the source of positive rights.” We are wrong to imagine that the State is the sole source of right, as an entity with a singular and unchallenged capacity to offer humanity and human rights.

The old idea of the wolfish-outlaw, as it makes a comeback, is relevant to the question of whether legal humanism is still possible in our time. In the view of the legal historian Francesco Calasso, the fourteenth-century jurist Bartolus of Sassoferato recognized the human and humane dimension of the law, and developed a legal humanism of a noble type: involving “not just discovery and exaltation of humankind but defense of them in thought and in action.” The assertion of the nobility and applicability of the ius commune as a canon of comparison for the law of particular States [ius proprium] and reference to a jurist like Bartolus on Roman Law, now seem hopelessly outmoded and bound by the intellectual conditions of the fourteenth century. Can we still assert a human-centered ideal of community, based on friendship, and binding solidarity among and between individuals? Friendship with oneself, viewed as part of the “fundamental constitution of humanity” might form the basis for a reawakening of the classical political demand for amity and justice.

With tremendous energy, the late-modern State projects its vision of an abridged humanity. The fact that “man is a wolf to man,” so horribly verified in the World Trade Center attack, has led to a vengeful retreat from old ideals of judicial due process. At the same time, we can point to a loosening of the bonds of local and friendly associations based on love and fellow-feeling, in favor of distant and false bonds based on hatred and fear: all in order to bind the primordial wolf.

The poet Goethe once declared that national hatred has a peculiar quality: “You will always find it strongest and most violent where there is the lowest degree of culture.” Displays of hatred have been common in recent years, thriving in a moral atmosphere of decline. One should highlight the possibility of friendship and the connections between friendship, liberty and joy. It is by no means easy to orient oneself during a period such as this one. I researched and pondered the theme of this essay while on retreat in the German monastery of Maria Laach (Monasterium Sanctae Mariae ad Lacum). Walking the paths lined with ancient beech trees or sitting in the quiet of the old liturgical library, I found that the topic troubled my thoughts. It seemed like a violation of the monks’ hospitality to study torture and terrorism inside the monastery walls, and yet those walls gave my reflections a hopeful and dignified frame.

We have been given the world as a setting in which to practice virtue and to attain self-knowledge; we are also bidden to study the world and the human tradition. Only this can open the prospect of contemplative happiness, “to which the whole of political life seems directed.” In periods of disturbance and change, personal constancy and discussions with like-minded friends become more important. If we can remain true to our friends: then “new paths will appear, enabling us to practice spirituality.”