Editorial
By
Thomas Albert Gilly
During the recent war in Gaza the notion of
proportionality came rapidly to the fore of the public, political and legal
debate.
Given the actuality of this topic, we have
decided to place Peter Tarlow’s article
called: “Is Proportionality a Biblical Concept?” in front of the papers we have
collected for this journal issue.
We introduce this issue of our journal with a quote
from Peter Tarlow’s article:
“As often the term is applied to Middle Eastern
conflicts. One way of judging the rules of proportionality may be to examine
from the Judeo-Christian world’s perspective, the Middle East’s most famous
work, namely the Biblical text. A
superficial examination of Hebrew Scripture and the Christian New Testament
would seem to fall on the side of proportionality
“
This quote serves indeed as a key to the understanding
and may be to the solution to one of the great enigmas of our times. It is the
relationship between proportionality and ethics. In everyday life moral and
justice speech the relation is one of the best known and, at the same time, it
is also one of the most misunderstood of the topics that are central to morals
and justice.
At first glance the relationship between proportionality
and ethics is evident. For argument’s sake, we are likely to qualify the death
penalty, if it were applied to people who have stolen food in the super-market
or cars in the streets, as disproportionate reaction. Such a reaction, if it were applied, would be
disproportionate to the severity of the offense. As proportionality is almost
always associated with equity, the link to ethics is easily done. However that
very evidence is frail. To understand this point, consider two questions:
The first question is as following:
Why shall the
death penalty, if it were applied to minor offenses, be considered as a
disproportional reaction? Is it because
it would not be equivalent to the severity of the offense? Who has the power
and mission to define the harmless nature of the offense, who the severity of
the crime? Of course, it is the law
maker who defines the severity of crime by means of the severity of
punishment. But law and justice, in our
contemporary societies, are contingent. It is therefore logically and
theoretically impossible to preclude that at a given moment, in a given society
and under certain circumstances, car robbery or steeling food in supermarkets
might be punished with the death-penalty. This is more than a purely
theoretical thinkpiece. Experience teaches that the severity of an offense
varies as a function of penal politics, of the nature of social reaction
against crime, of the crime perception in public opinion and of the objective
and the subjective quality of the social damage or the social disease that is
caused by this or that particular offense. There are many examples that show
that the law-maker adjusts the law according to such changes, and in almost all
cases the adjustment of the legal norm is proportionate to the recent developments
in social reaction against crime, crime perception and social disease caused by
crime.
When car robbery is no longer an isolate phenomenon,
when car robbery develops into a mass phenomenon that causes serious damage to
the society, it can no longer be thought of as a harmless offense. Analogically corruption might be considered
as a harmless crime as long as corruption is not inherent part of the wealth
and the health of the society. The ethical parenthesis opens with a fundamental
observation and closes with two questions.
On the contrary you might indeed argue that the
quality of the social and economical impact of an offense does never affect the
nature of the offense itself. This is correct – to some point. The following
example supports: Car robbery is more harmless than murder. And murder is
genuinely and always a very serious and severe offense, independently from the
question whether the offense is an isolated phenomenon or not. The quality of
the severity of murder is not affected by the number of murders, the quality
does not change. The first part of the argument works within the framework of
ethics only, not within the framework of contingent law. In other words this
means, the first part of the argument is not correct inasmuch as it refers to
the legal framework for the difference between the severity of car robbery and
the severity of murder implies a distinction which, if it were made within the
framework of the law, would contradict the genuine social dimension and the
social control and regulation function of the law. And that dimension and that
function depends, as we have already seen, upon the change in regard to the
social reaction against crime and regarding the social damage and disease
caused by and involved in crime. Ethics only furnish the modus operandi for
such a distinction. As for the second part of the argument, here again it works
exclusively within the framework of ethics... Why? It is because the proposal:
The severity of murder is never affected by the number of murders, to be valid,
must refer to and stem from a genuinely negative quality that is substantial to
the offense. This substantial quality is evil.
This does not mean that the law is devoid of ethical
considerations. This means only that such a substantial quality can never
derive from the inherent rationale of the law itself.
The first question that closed the ethical parenthesis
is: Why shall the death the penalty not be the proportionate punishment to
offenses that cause major social damage and social disease? Suppose – however
revolting, the death penlty shall apply. The law address such a question, there
is no ther instance which might address that question. It is the law as it
develops on the ground of legal positivism, not that one that fits in with the
mission of Themis. After all, law itself
has experienced that people who even not have stolen cars in the streets
or food in supermarkets, who have simply demonstrated their courage to tell
their opinion, have been punished with the death penalty – in the name of law.
So, why not car robbers? The question is rhetorical. Ethics counter-attacks as
following:
“It cannot be that people
who have stolen cars in the streets or food in supermarkets shall receive the
treatment that applies to murderers and shall be punished with the death
penalty”
In reaction to ethics’ alert, we might be tempted to
respond:
“Okay, we have got it. The death penalty, if it were
applied to people who have stolen cars or food in the supermarket, would be
disproportionate to the evil that has been done”.
With the following question the ethical parenthesis is
closed:
Is it then that the death penalty is proportionate to
the evil of taking away somebody’s life?
No, it is not. The reason is that in the face of evil
there can be no proportional response; evil must be confronted and destroyed!
To our great amazement, this is a Biblical maxim. As
Peter Tarlow shoes in his article, it is central to the ethics of Hebrew
Scripture.
The second question which helps us to better
understand the frailness of evidence regarding the relationship between
proportionality and ethics is as following:
If there can be no proportional response in the face
of evil, if evil according to Hebrew Scripture is to be destroyed, is it then
not that the maxim of proportionality is inherent part of justice and genuinely relevant to justice?
Given that evil is central to ethics, considering that the maxim: “In face of
evil there can be no proportional reaction; instead you shall destroy evil”, is
not only an ethical principle, but also a central pillar of the ethics of
Hebrew Scripture, proportionality, if it were genuinely relevant for justice,
would be then relevant for justice in the legal sense of the word, not to
justice in the moral or ethical sense of the word.
According to the etymological roots of the word
justice, as they go back to the Roman Antiquity, the paradigmatic use and
understanding of “justice” develops on the ground of jurisprudence. As
jurisprudence is nothing but the “jus dicere” within the framework of people
who dispute their respective rights, proportionality, within this framework, is
predisposed towards an application that is genuinely relevant to the
micro-level of jurisprudence, not to the macro-level of international law,
foreign affairs
Peter Tarlow, in
his in- depth study of the Biblical sources of proportionality, shows
that these sources, namely Hebrew Scripture, preclude the confusion between the
micro level of proportionality and the macro level of proportionality. It is
abundantly clear from the Biblical text “that
the text never refers to a macro (state sponsored situation), but rather addresses on the idea of
proportionality on the micro level. In
fact it can be argued that while there are no direct texts referring to the
principle of proportionality on the macro level, there are a number of Biblical
vignettes that would very much contradict this principle”
This is an extremely important
point. Why? It is because the principle of proportionality is central to jus in
bello, as it develops on the ground of the Hague and the Geneva Conventions.
International law, foreign affairs and finally the condemnation of Israel,
during the recent war in Gaza for lack in proportionate reaction against the
Hamas rocket attacks, can hardly be thought as of a micro-level of
jurisprudence; the macro-level is issue, not the micro-level. The attempt to
ground the doctrine of jus in bello on Biblical sources, therefore, must fail,
The Biblical sources, namely Hebrew Scripture, can even not serve as means for
the development of a deontological conception of warfare that is aimed at the
moralization of war. And it cannot provide morally veiled legitimacy to
terrorism either, for there can never be a proportionate reaction to terrorism.
Accordingly Tarlow argues: “In
the face of evil there can be no proportional response.”
In my paper called “Disproportionate
Proportionality. Questioning the Limits of Jus in Bello[i], I
discuss the same topic against the background of war ethics, as they stem from
Judaism and Hebrew Scripture. The application of the Hague and the Geneva
conventions to the new paradigm in asymmetric conflicts works to the profit of
terrorism and to the detriment of the inherent rationale of international law.
If there can be no
proportionate reaction to terrorism, if proportionality is irrelevant to the
reaction against terrorism, there can be no negotiation with terrorists either.
Accordingly the hard line only is relevant. In some specific cases of
terrorism, namely terrorism associated to hostages taking, the authorities
might demonstrate their willingness to engage in negotiation. In almost all
cases the authorities choose that option to safe the life of the hostages and
to reduce the risk of victimization. Experience teaches that this option is not
always realistic. In the majority of the cases the goal is never reaches and
the negotiation has a fatal outcome.
With his article “Reflex
Approach in the Drive against Terrorism. Proportionality of Counteraction
Measures”, Vladimir Iliev provides for the theoretical framework for
appropriate and proportional stress and crisis management. The notion of social
reflex is central to the psychological / social-psychological approach to
proportionate reaction against crime and terrorism. The discussion about the
impact of the social reflex approach to crime culminates with the development
of a theoretical framework of reflexive management that impacts the behavior of
the terrorists. Reflexive management seeks to develop those conditions that
favor the manipulation of other people. The notion of “mimesis” is central to
reflexive management inasmuch as the latter implies the ability to put
ourselves at the place of the other ( terrorist), to suppose and think as we
were the other and finally to mime the other in order to anticipate and predict
his / her behavior.
There is hardly need to tell
that Vladimir Ileiv provides practitioners and decision makers with the
theoretical matrix for appropriate crisis and stress management in cases of
terrorism with hostages’ taking and processes of negotiation.
Do you have ever heard about
the “Isaac Syndrome”? You might be tempted to imagine that this has something
to do with Bible. You are right inasmuch as Isaac is the son of Abraham and as
the story of Abraham and his son Isaac is part of the Bible But where is the
Biblical soured of the “Isaac Syndrome”? In the tale of Abraham and his son
Isaac, there is no explicit reference to the “Isaac Syndrome” and there is no
story dealing that syndrome either. To add to the confusion: Why has Isaac something
to do with Iphigenia? This assumes that they have something to do one with each
other. Why? It is as Shlomo Shoham argues, because “a partial
feminine counterpart to the sacrificial rites of passage inherent in the Isaac
Syndrome may be inferred from the Greek myth of Demeter and Koré”..
The
sacrifice of Isaac is proportionate to the sacrifice of Iphigenia in regard to
myths’ structuring impact upon meaning and behavior Myths do not only structure meaning and
behavior, they also “serve as motivation
and prime movers for individuals and groups” (Shoham 2009). The essence of
the myth of sacrifice “lies in the
sacrificial enmeshing of the young into the disciplinarian boundaries of the
normative systems of society”(Shoham 2009). Therefore the sacrifice, in
bott cases, is proportionate to its disciplinary aim - at least: to its
powerful contribution to social control by means of normative constraint.
You
have got it: In Holy Scripture, there is no story that deals the “Isaac
Syndrome”. Such a story belongs to the source book of myths, as it stems from
the process that disconnects the Bible from its divine origin and holiness. It
can even not be considered as an inherent part of the Bible, rather it is a
story that develops on the ground of an anthropological and
social-psychological modern lecture of the Bible – in sum: it is a story that
tells long about that modern anthropologically and social-psychologist
reconstruction of the Bible.
Such
a story hardly fits in with the divine origin of the Scripture, its holiness.
However, the linkage between the former and the latter is not irrelevant. So as
Hebrew Scripture holds everlasting truth and eternal actuality, so the “source
book of myths” provides the modern, actual, and not eternal witness to the everlasting structuring power of myths,
Is
there a better reason to link Peter Tarlow's article and the article by Shlomo
Shoham called “The Isaac Syndrome as a Source of Social Legal Normativity”?
While the former demonstrates the relevance of Holy Scripture to the actual
debate about jus in bello, the latter witnesses the relevance of the
anthropological and social-psychological contemporary reconstruction of the
Bible for the understanding of the everlasting relationship between myths and
humanity.
The
Constitution of the Federal Republic of Germany differs from other EU member-
states’ constitutions inasmuch as the former provides for a a broader guarantee of religious freedom,
covering almost all basic rights. In
“Religious Freedom in Modern Germany: A Review of Constitutional Provisions”,
Debarati Halder and K. Jaishankar discuss the constitutional framework of
religious freedom and the reality of religious freedom in contemporary Germany.
The question whether the latter is proportionate to the legal guarantees or not
is central to the paper.