Saturday, December 9, 2017

"The goal is to see the Conflict Resolved;" "Long live the Conflict!"

Gilead Sher/from his law firm website
Gilead Sher, Israel's chief peace negotiator with the Palestinians at Camp David (2000) tells Gilad Halpern and Dahlia Scheindlin at the Tel Aviv Review[1]: "My aim is not to resolve the conflict. My aim is to secure a Jewish democratic Israel . . . the Zionist vision that came true 70 years ago."  If you ever wonder, why is there no peace with the Palestinians, you need look no further than this.

Gilead Sher, is an attorney and served as Israel’s chief negotiator with the Palestinians under Prime Minister Ehud Barak (1999-2001) for the Sharm el Sheik Agreement[2], the Camp David Accord[3], and the Taba Agreement[4].  Today Sher heads the Center for Applied Negotiations at Tel Aviv University’s Institute for National Security Studies.  The program discussed Sher's co-edited book Negotiating in Times of Conflict[5], which offers a panorama of perspectives on how to overcome obstacles in peace negotiations, looking at examples from around the world. The Institute does good and valuable work and Sher has helpful insights to offer. But when it comes to Israel, Sher's focus appears to be all tactics and manipulating advantage. Based on this interview, justice is not the focus.

Gilad Halpern states the obvious:
Halpern: "The end goal is to see the conflict resolved." 
Sher:  "Right." 
That seems correct, and should go without saying. But Sher is not at ease with his answer, and he quickly goes back to revise.
Halpern: "Going back to the settlers . . . . they live in many ways much better with the conflict going--meaning that they can settle the land in the West Bank--than (they would live) with the end result of resolution (of the conflict), which would most probably mean their evacuation from the land."
Sher:  "Well, there is a few points that I have to address about your question. First, my aim is not to resolve the conflict. My aim is to secure a Jewish democratic Israel based on the fundamental principals that are encompassed within our Declaration of Independence of 1948. The basics of the Zionist vision that came true 70 years ago. So in order to do that we have to possibly disengage with the Palestinians and hopefully through a negotiated agreement. 
"Second, when you look at the settlers, 80% already live adjacent to the Green Line in major blocks, and they will become part and parcel of Israel in any agreement. You are dealing with maybe up to 100,000 settlers that would have to be resettled in a permanent status agreement if Israel and Palestinian disengage one from the others. And for that an internal dialogue is needed."
End of conflict is not the goal, suggests Sher.  If the conflict must continue in order to preserve the Zionist vision as expressed 70 years ago, with permanent IDF occupation of all of the West Bank and "separation" with the Palestinians, so be it. The goal, says Sher, is to preserve the Jewish state as envisioned in its declaration, and "in order to do that" he says, "we have to possibly disengage with the Palestinians." But we have seen what disengagement means: it means walling off Palestinians from Jewish settlements, walling off Palestinians from their farmlands, walling off Palestinians from their watering wells; it means checkpoints and separate infrastructure; it means military rule for West Bank Palestinians and civil courts for West Bank Jews. It means institutionalized violence, intimidation, discrimination, and control of Palestinians. It means turning Gaza into an open air prison. It means no justice. It means continued conflict.

I'm sure Sher would say he is in favor of ending occupation, in favor of civil courts for West Bank Palestinians, and harmonious relations with Gaza. [If only the Palestinians were more peaceful!] But this is not realistic. If your goal is "separation, hopefully through a negotiated agreement" over "resolution of the conflict" what you'll get is conflict and military occupation.

And I'm sure Sher would point to some of the idealistic provisions of the Israeli Declaration of Independence [6]: " [Israel] will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex," it promises.  And it's true, Israel is struggling and making an effort to meet this promise within the Green Line. But Israel is making no effort to honor this promise for Gaza or the West Bank. If the border is at the Jordan river, Israel has abandoned this promise.

The Declaration promised "equal citizenship" to its Arab inhabitants, but Israel then played fast and loose with the concept of citizenship, by differentiating between citizenship and nationality. It's akin to placing a big brown "A" on the lapels of its Arab citizens.

The Declaration asserted that Israel "is prepared to cooperate with the agencies and representatives of the United Nations in implementing the . . .  economic union of the whole of Eretz-Israel" (meaning Israel, Gaza, and the West Bank).  Israel has not been serious in this enterprise. It is fundamentally incompatible with occupation.

Prioritizing separation over conflict resolution assures the conflict will not be resolved. Israel's negotiators need to make conflict resolution their top priority if the conflict is to be resolved.


1.  The Tel Aviv Review (12/8/17). The Tel Aviv Review is presented by the Van Leer Jerusalem Institute, "which promotes humanistic, democratic, and liberal values in the social discourse in Israel."
2. Sharm el Sheikh Memorandum (1999)
3. Institute for Middle East Understaning, What did, in fact, happen at Camp David; see, also Nikles, Pundak is Dead; Long Live Pundak!
4. Haaretz, Akiva Eldar (2/14/02) The Peace that Nearly was at Taba.
5. Negotiating in Times of Conflict (2015), Gilead Sher and Anat Kurz editors.
6. Israel Declaration of Independence, May 14, 1948.

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Friday, December 8, 2017

"Religio" to Religion and Secularism

Saints Thomas Aquinas (1225-74) and Augustine of Hippo (354-430)/
image www.catholic365
Yaacov Yadgar in his new book Sovereign Jews [1] makes an interesting point: secularism and our modern understanding of religion arose hand-in-hand during the Renaissance. It has allowed us to compartmentalize civic life--our work life, our political life, our recreational life--from religious life. It has allowed us to formally separate church and state. The Romans, the Greeks, and Western Europeans during the Holy Roman Empire knew nothing of the separation of church and state because they had no separate concepts of church and state.

Religio as a Word through Time

Before the Reformation we had no word corresponding to "religion" as we understand it in the West today. In pre-Christian Latin, the term religio meant “social duty,” says Yadgar. Ancient Christians ignored the term (and Hebrew had no equivalent). When early Christians used religio in their Latin writings (or translations), they meant 'ritual practice,' 'clerical office,' 'worship,' or 'piety,' says Yadgar. In other words, religio referred to a subjective disposition of the worshipper toward God, reflecting a type of social duty. For Augustine in the late 4th century, religio meant “worship,” the action by which we render praise.

The term religio was generally absent in the Middle Ages. When it was used it still referred to various rules of Christian life (i.e. duty). For Thomas Aquinas (1225-1274)[2] religio had to do with virtue: the term was ethical, not theological.

For more than a thousand years, therefore, Christians had no notion of Christianity as a separate sphere from government and civic life. Some of the hallmarks of this pre-religion Christianity, says Yadgar, are: 1) religio was not a general notion, of which Christianity is supposedly an exemplar; 2) religio did not denote a statement of beliefs regarding reality; 3) noone thought of it as some pure inner impulse borne by the soul; and 4) Christianity was not seen as an institutional power that can be distinguished from “non-religious” powers. Medieval Christendom was a theo-political whole!

In this theo-political whole, princes and kings were subordinate to the Church, popes had armies, and bishops had the power to launch reigns of terror like the Inquisition. The Enlightenment disarmed the Church. The bishops lost their authority to use force and the secular state came to claim the exclusive right to use deadly force. The Church was shoved into a corner to concern itself with the inner life of men and women, the afterlife, saints, and charitable works.

Our modern concept of religio(n) in the West is very different from this medieval theo-political whole: we now think of religion as 1) a universal genus with different species; 2) with each species demarcated by a set of propositions; 3) as concerned with a private inner impulse; and 4) this inner impulse is seen as distinct from the secular pursuits of politics and economics.

Theologians have also claimed five aspects as common to religion in general, says Yadgar: 1) that there is some supreme divinity; 2) that this divinity ought to be worshipped; 3) that virtue joined with piety is the best method of divine worship; 4) that we should return to our right selves from sins; and 5) that reward or punishment is bestowed after this life is finished.

Religious Bigotry in the Secular State

By making the secular state supreme, relegating religion to the inner and private, and removing from religious authorities the power to coerce with violence, we have not, of course, isolated the secular state from the influence of religious bigotry in politics. Evangelicals made up 26 percent of the electorate in the last presidential election and 81 percent of them voted for Donald Trump as president. Nearly half the electorate, and a majority of states (30), voted for Donald Trump and his misogyny, his hostility towards non-whites and non-Europeans, his discrimination against Muslims, his disdain of the poor, his vulgarity, hypocrisy, and lying.

We have taken the power from religion to coerce, we have separated church and state, but we have not removed the power of the religious to give us Donald Trump. The saving grace is, Donald Trump will be easier to remove from power than the Catholic Church in the 16th Century.


1. Yaacov Yadgar, Sovereign Jews: Israel, Zionism, and Judaism (2017)
2. Internet Encyclopedia of Philosophy, Thomas Aquinas.

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Tuesday, December 5, 2017

The Religious Right and the Struggle for a Tolerant Secular State: it's about more than separation of church and state

It feels like the modern secular state is under assault. At the Forward, Batya Ungar-Sargon [1] reports on the phenomenon of the American Jewish Orthodox aligning with American Christian Evangelicals and she suggests that, together, these groups are attempting to weaken the separation of church and state. But is the problem really violation of the separation of church and state, or is this a more wide-ranging political fight over fundamental values in our society?

We liberals have made tremendous progress in advancing a tolerant society that looks out for the less advantaged. Let us count some of the ways: the New Deal ('30's), the Great Society ('60's), programs that advance educational opportunities for all, investments in workplace and consumer safety, food stamps and other welfare programs, protecting the environment. And all this with a broadly progressive tax structure.

These programs exist because the values of a tolerant, liberal state have been broadly in ascendancy. It has never been easy. Conservative forces, including the Religious Right, have opposed this progress at every step. The fight over broadening health insurance is just the latest example.

Have we come to take the the liberal order for granted? Was it complacency, in part, that accounts for the defeat of Hillary Clinton? Either way, it's time to redouble the fight.

The Religious Right has found itself on the short end of the stick in some prominent battles over values, including the battle over abortion (Roe v. Wade)[2], the right to marry someone of the same sex (Obergefell v. Hodges)[3], and the empowerment of women in the workplace. Good for us! But now that conservatives and the Religious Right are in power in most states and in Washington, liberal values of tolerance are under attack.

The Religious Right has fought back, in part, by wielding separation of church and state as a sword. Separation of church and state, they say, is less to protect civil society from the imposition of a dominant religious culture, and more to protect the dominant religious culture from the secular state. And the dominant religious culture to be protected from the secular state, says the Religious Right, is the Judeo-Christian culture--thus violating a key concept of separation of church and state, neutrality.

Push-back from the Religious Right has manifested itself in fights over the right of businesses to abstain from providing medical insurance that includes abortion services on religious grounds (Hobby Lobby[4], Little Sisters of the Poor[5]), the right of a bigoted Christian baker not to sell a wedding cake to a gay couple [6]. The Religious Right are pushing against constitutional boundaries with  the argument that  personal belief and conscience of the religious should trump the state's power to protect the right to an abortion after 20 weeks.  The Religious Right say the state should be allowed to keep out Muslims because of the Judeo-Christian nature of the state, and to keep out Mexicans because of the white European nature of the state, all without worrying whether this throws the power of the state behind a particular religious tradition.  

Batya Ungar-Sargon is correct that all these efforts are an attempt to blur the separation of church and state. But preserving the separation of church and state, of course, is not sufficient. Separation of church and state does not in itself protect minorities. Secular states--see the fascist examples of the 1930's--are not necessarily just or tolerant. 

In addition to separation of church and state we need universal values that are enshrined in our constitution, such as equal protection, free speech, and due process. And these constitutional values are not sufficient either. Most of the accomplishments of the liberal secular state that are enshrined in New Deal and Great Society legislation are not constitutionally mandated, and they are not affected by a separation of church and state. They are just good policy.

Liberal Jews (most Jews in America), have found from bitter experience that less tolerance results in anti-Semitism and is bad for Jews. Jewish history provides powerful incentive to stand up for tolerance and to fight for the equal and just treatment of all minorities. 

The Jewish Orthodox and the Christian Right, says Ungar-Sargon, have common cause on many of these issues, and they share the belief that the Trump administration is sympathetic to their view. They may be a minority, but they have political power[7], and visions of more political power in the future. With the ability to support a right wing government that is intolerant, but tilts toward their world view, Christian Evangelicals and Orthodox Jews currently share the view that less tolerance is good for them.

The Religious Right are cheering on the GOP's dismantling of environmental protections, the slashing of corporate tax rates and individual tax rates in order to reduce the redistribution of wealth from the top to the bottom. They are cheering on increasing the national debt by more than $1 trillion to get this accomplished. They will cheer on attempts to eliminate food stamps, to increase the rolls of the uninsured, to undo Social Security and reduce Medicare and Medicaid.

The result is a fight for the liberal conception of tolerance and universal values that lies at the heart of the secular liberal nation state. The fight is joined. It is not about religious values or secular values, it's just about values. And thus it ever was.


1.  Batya Ungar-Sargon, Are Orthodox Jews Assimilating to the Christian Right?The Forward, December 3, 2017. 
2. Roe v. Wade, Planned Parenthood website.
3. Obergefell v. Hodges, SCOTUS blog.
4.  Here's What You Need to Know about the Hobby Lobby Case, Washington Post, March 24, 2014.
5. The Little Sisters of the Poor are Headed to the Supreme Court, Atlantic, November 6, 2014; 
7. Pew Research 2016 Election Analysis: Evangelicals are 26% of electorate and 81% voted Trump.

Follow me on Twitter @RolandNikles

Thursday, November 30, 2017

Internet Neutrality: It Doesn't Seem Simple

Quid analysis of 250k comments to FCC on net neutrality/NPR
The internet is a wondrous thing: at the click of a computer stroke it opens the world to us. It enables us to form far flung communities, to stay in touch with family, friends and colleagues across continents, to communicate with anyone, anytime, to keep up with the news from a myriad of perspectives. It provides us with a platform to get our views out into the world (e.g this blog). Recently, it has enabled us to shop online, to read books in far away libraries, and to watch movies. The internet has enriched us. It has become an indispensable tool for innovation, free expression, and growth in the modern economy.

There is a dark side. The internet has enabled all manner of frauds. It allows us to find, share,  engage in, and encourage the worst part of our natures. There is identity theft. There are pishing scams, snuff films, child pornography rings, hate groups, trolling, and bullying of all kinds from behind a veil of anonymity; there is the willful and negligent dissemination of falsehoods, conspiracy theories, and political disinformation and misinformation.

There are kittens.

The internet both facilitates democracy and undermines democracy.

The Mission of the FCC

The mission of the Federal Communications Commission (FCC) is to “make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, Nation-wide and world-wide wire and radio communication service with adequate facilities at reasonable charges.” [1]

So why are the United States, where the internet was founded, such laggards in making the full benefits of the internet available to its citizens?

Inadequate Plumbing, Compromises, and Incentives of Natural Monopolies

In order to function, the internet needs common carriers that provide the plumbing for the free flow of all this information. In the United States the plumbing is getting better, but it remains inadequate.  We just recently cracked the top 10 [2] of countries with high average internet speeds, but our capacity is still just 65% that of South Korea.

What we have here is a failure of private enterprise. Private enterprise has no incentive to build out broadband services in rural communities, where build-out is expensive, and potential revenue is small. By relying on private enterprise, therefore, we are leaving those who live away from dense urban areas without access to the full wonders the internet can provide.  Even in urban areas, connecting each house is expensive: as much as $2,500 per connection. With revenues in the $100 per month/household range this represents a large up-front investment. It discourages competition. It makes internet providers natural monopolies. [3] Just four companies, Comcast, AT&T, Verizon, and Charter account for 76% of the 94.5 million internet subscribers in the United States. [4]

As a country we have made an insufficient commitment to build out sufficient broadband so everyone is fully connected to the internet.  We have relied on private businesses to do it, but the incentives are not sufficiently aligned for private businesses to get it done. As a result, the basic transmission tools of the internet, TCP/IP (Transmission Control Protocol/Internet Protocol) [5], don't come with a guarantee that a packet of information will reach its target "fast" or "at all." This necessarily results in compromises.

Some of the factors that may go into the making of such compromises include: (a) which uses consume more broadband; (b) which uses are more sensitive to delay; (c) which uses generate more revenue; and (d) which traffic is more socially useful.

Which raises the question: do we really trust Comcast, AT&T, Verizon, and Charter to make judgment calls based on these factors? If we let ISP's make these decisions in an unregulated environment, it seems safe to say they will invariably make decisions based on which traffic, and which shenanigans, generate the most revenue for Comcast, At&T, Verizon and Charter.

The ISP monopolies do not share the mission we set out for the FCC.  The goal of private Internet Providers is to make money, and making money is not necessarily consistent with providing fast and unfettered access to all that the internet has to offer to everyone "at a reasonable price."

Net Neutrality

Net neutrality refers generally to the idea that ISPs should not treat traffic traversing their networks differently based on its source, content, or use. In other words, the idea is that ISP's should be passive conduits that treat all data the same. It requires regulations, rules, and oversight.

Advocates of net neutrality say this promotes innovation. For example, when Mark Zuckerberg started Facebook in a dorm room he didn't have to ask ISP providers to give equal treatment to his new application as established players. Without net neutrality, new players might be charged an access fee, thus stifling innovation. [6] On the other hand, Zuckerberg started Facebook without the benefit of net neutrality rules.

Timothy Wu, who first coined the term "net neutrality," is concerned that the Trump administration's change in course is removing "even the most basic" regulations, and, that as a result, ISP's would be free to block or slow traffic that interferes with their parochial business interests, or to make distinctions and charge for free passage in order to maximize revenue. [7] What games ISP's will play to benefit the bottom line at the expense of consumers and competing services--assuming the regulatory roll-back goes through--remains to be seen.

Proponents of eliminating net neutrality argue that in an era of insufficient broadband--likely a chronic condition--ISP providers need to be able to determine how to get the most content to customers in the best manner.  For example they should be able to prioritize services that are more sensitive to delay over services that are less sensitive to delay (e.g. email vs. movies). And in order to make this work most efficiently, variable pricing for different traffic may have a role. As long as we rely on private enterprise to both fund the build-out of broadband networks and to administer them, they may have a point.

The whole  question becomes moot, it seems, once there is sufficient broadband to move all traffic to everyone at a reasonable price. If there is enough bandwidth what possible justification could there be for slowing, or blocking, or impeding any of it?

But as long as we lack sufficient bandwidth to move all traffic, and broadband is not available to all, compromises must be made. What those compromises should look like, and who is best placed to make them, this would seem to involve expertise beyond this superficial review.

I'm convinced that we should build out our broadband so that all can have access to all the wonders of the modern internet at a reasonable price. I'm agnostic about how we can best get this accomplished.

I've put my vote in to the FCC in favor of keeping the net neutrality rules, but I'm not confident enough to shout.


1.  47 U.S.C. Section 1511.
2.  FastMetrics, internet speeds with First Q 201 update
3.  See, Orin Kerr at Volokh Conspiracy
4.  Inverse Innovation, On Net Neutrality, what AT&T, Verizon, Charter, and Comcast say (11/25/17).
5.  Christopher Yoo/John Wu article
6.  Vox explanation of net neutrality
7. Timothy Wu, New York Times Nov. 22, 2017 "Why the Courts will have to Save Net Neutrality."
8 Internet Society, Policy Brief Net Neutrality (10/30/15)
9. Farhad Manjoo, NYT (11/29/17) "The Internet is dying . . . "

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Monday, November 20, 2017

Whose Jerusalem? Whose Land? The Meaning of Jerusalem to Jews, Christians and Muslims

R. J. Zwi Werblowsky/Emet Prize photo
Some people have all the luck when it comes to living a purposeful life. R. J. Zwi Werblowsky [1] was born in Frankfurt, Germany in 1924. Frankfurt at that time was a vibrant place, Jewishly speaking. The philosopher Franz Rosenzweig (1886-1929) [2] founded a school for adult learning Lehrhaus Judaica. Martin Buber [3] taught there; so did Gershom Scholem, Leo Loewenthal, Benno Jacob, and Shmuel Y. Agnon. Thus, Werblowsky emerged from a vibrant modern, assimilated, Jewish culture in Germany that was so bitterly stamped out starting in the 1930's. 

As a teenager Werblowsky studied in Yeshivas in Jerusalem. During the war he studied in London, receiving his B.A. in 1945.  Post-war, Werblowsky worked in an orphanage in the Netherlands where he helped to prepare survivors of the Holocaust to move to Palestine/Israel.  

He obtained a PhD from the University of Geneva and commenced an academic career in comparative religion at the University of Leeds. 

In 1956 Werblowsky moved to the new state of Israel, where he was a founding member of the Department of Comparative Religion at Hebrew University. He rose to serve as Dean of Faculty of Humanities 1965-1969, and he remained at Hebrew University until 1980.  

Werblowsky founded the Interfaith Committee in Jerusalem in 1958. He also worked at UNESCO serving as vice-president of the International Council for Philosophy and the Humanities.  He was the primary editor of the premier journal on comparative religion, Numen [4]. He also co-edited the encyclopedia of Jewish Religion.  He died in Jerusalem in 2015. 

From his perch atop the world of comparative religion, Werblowsky was in a unique position to recognize and describe some of the contradictions, dilemmas, and pitfalls faced by the new state of Israel. One example is his insights regarding Jerusalem and the relationship that each of the three monotheistic traditions have to confront with respect to that city.

Three Conceptions of Jerusalem

In 1978 Werblowski published a book The Meaning of Jerusalem to Jews, Christians, and Muslims.[5] He summarized the thesis of his book in an article recently handed to me by Rabbi Peretz Wulf-Prusan, Whose Jerusalem? Whose Land? The Meaning of Jerusalem to Jews, Christians, and Muslims. [6]

One way in which people have experienced and crystallized their sense of holiness, said Werblowsky, is in relation to space. There are holy lands. For example, said Werblowsky, there is a temple in Benares, India, in which the object of worship is a map of India.  We might look to similar spaces in American Indian religions [7]. There are holy places, as distinct from land, where the holy became manifest. And there are holy cities. Some cities are holy because they possess a shrine or holy object. When it comes to Jerusalem, the city is part of a holy land for the  Jews, it is a holy city for Christians because of things that happened there, and it is a holy place for Islam because tradition holds Muhammad ascended to heaven from that location. 

1. Islam

For Muslims, Jerusalem is Al-Kuds (the holy one). The holy status of Jerusalem in Islam, says Werblowsky, is derived in part from Judaism and Christianity. As best as historians can tell, Muhammad never set foot in Jerusalem.  But Muhammad looked to Judaism and Christianity for some of the core ideas of Islam. For example, the ideas of monotheism, judgment day, and man’s moral responsibility for his actions all were derived from the earlier religions. The Koran adopts and accepts the stories of the patriarchs as handed down by Judaism and Christianity. This inheritance necessarily brings Jerusalem into the picture. 

Sura 17:1 says “Praise be to Allah who brought his servant at night from the Holy Mosque to the remote Mosque.” This has been interpreted, from early days of Islam, as a miraculous journey by Muhammad from Mecca to Jerusalem . . . . and it was from there he made his ascent to heaven. The capture of Jerusalem by Kalif Omar in 638 was instrumental in the development of this belief and tradition, and it was consolidated with construction of the Dome of the Rock in 691 CE and the Al Aqsa mosque in 705 CE.  Over time, the Al Aqsa Mosque became identified as “the remote mosque” of Sura 17:1, said Werblowsky. 

For Islam, then, the city of Jerusalem is holy because it contains a shrine, a holy place where--according to tradition--Muhammad ascended to heaven. 

2. Christianity

Christianity has facts on the ground in Jerusalem: the last supper, the crucifixion, the resurrection of Jesus. Jerusalem is holy because of what happened there. But, significantly, Christianity also developed a heavenly abstraction of Jerusalem. Christians focused on a Platonic form of Jerusalem in heaven, which served to relegate the earthly Jerusalem to a kind of memento, said Werblowsky. 

Werblowsky refers to a story about the pilgrimage of Philipp from Lincoln in 1129. Philipp did not get very far on his pilgrimage. He made it as far as Clairvaux (half-way between Paris and Switzerland). From there the bishop of Lincoln (on the east coast of England between Nottingham and Hull) received a letter from the Abbott of Clairvaux. The letter said:  “Philipp has entered the holy city and is no longer an interested onlooker but a devout citizen of Jerusalem. But this Jerusalem is Clairvaux. She is the Jerusalem united to the one in heaven through whole-hearted devotion, by conformity of life, and spiritual affinity." In other words, said Werblowsky, the true home of the Christian, according to the medieval conception, is the heavenly Jerusalem. Not that the good Christian must despise the terrestrial Jerusalem, but the true terrestrial Jerusalem “which is united to the one in heaven” is wherever the perfect Christian life is lived! 

St. Augustine promoted this deterritorialization of Jerusalem: in John 7:37 Jesus said “let him who thirsts come to me and drink,” and St. Augustine wrote, this means not a pilgrimage to a physical place, but to wander with the heart (on a spiritual journey).  The abandonment of concrete historical eschatology in the centuries between Revelation and St. Augustine, said Werblowsky, resulted in a Christian vision of the heavenly Jerusalem that is purely spiritual.  

Christian hymnology, notes Werblowsky, is almost exclusively heavenly.  For mainline Christians, to the extent Jerusalem has a terrestrial geographic location, it is mainly as a memento of holy events that occurred in certain places.

But the tendency to worship the place(s) and the tendency to de-territorialize have always been in conflict in Christianity, notes Werblowsky. Some Christians after St. Augustine re-focused on Israel as the holy place where all these events transpired, and where further things must happen before the second coming will transpire.  For example, evangelical pastor John Hagee and his followers [8][9] take a literal territorialist view of Jerusalem, as do American evangelicals in general [10]. It's what makes them staunch supporters of Zionism. 

3.  Judaism

The Jewish tradition is very different from St. Augustine's spiritualized Jerusalem.  

Jerusalem, of course, is not part of Jewish stories from Abraham through the Exodus; it was David who first turned Jerusalem into a cultic and religious center, and who made it a symbol of the national unification of Israel. Jerusalem became the symbol of transition from peoplehood to nation state. 

But Jerusalem was never completely identified with the state during temple times, said Werblowsky, so when the state ceased to exist (in 70 CE) Jerusalem survived as a symbol of importance for the Jewish people. “Jerusalem consciousness” continued into rabbinic Judaism. Jerusalem was the city God had chosen and the city became as much a part of the covenant with his people, as the covenant with David and his seed, said Werblowsky.

In the Talmudic vernacular, Jerusalem and Zion became synonymous and they came to mean not just the city of Jerusalem but the land of Israel as a whole, and the Jewish people as a whole. City, land, and people became one in a grand symbolic fusion.  Zion/Jerusalem is the “mother” says the Talmud, and upon the destruction of the second temple, the “mother” is widowed and orphaned and longs to rejoice one day upon the return of her children.

Rabbinic Judaism did take up a pale version of the Christian notion of a heavenly Jerusalem. For example, in midrash Tanhumah, section Pequday, said Werblowsky, there is a Jerusalem above. But in this rabbinic conception, God made himself a Jerusalem in heaven for sheer love of the earthly Jerusalem.  In other words, in this Talmudic conception the earthly Jerusalem does not reflect a heavenly archetype, but the other way round! The Jerusalem in heaven is a snow globe to remind God of the real thing.  

In rabbinic Judaism, piety, religious symbolism, and messianic hope are directed first and foremost to the earthly Jerusalem.  A definite strand of this-worldliness permeates all of normative Jewish religion, says Werblowsky. Jerusalem and Zion became geographical terms beyond geography, but not without geography.  It’s an existence that for religious Jews has religious dimensions, and that could be reformulated by secular Jews for Zionism.

Al Aqsa, Dome of the Rock and Western Wall Plaza at left/
photo Andrew Shiva/Wikimedia 

A Troubling Legacy and a Challenge for the Modern State

This historical and living symbolism that Jews have about Jerusalem--and that is supported by evangelicals--is troubling in the context of the modern state of Israel, notes Werblowsky.  Religious or secularized symbols drawn from mythological roots too easily become catch-words at odds with the needs of a modern and just nation state. 

This traditional Jewish symbolism of Jerusalem and Zion, drawn from mythological roots, said Werblowsky, is of dubious vitality as justification for a modern nation state. Can Israel engage in constructive and morally responsible politics by making itself a prisoner of symbolisms, no matter how venerable and hallowed? he challenged. These are questions not easily answered, suggested Werblowsky, because symbols cannot always be dismissed by a mere wave of the hand. 

Sometimes symbols are the conscious and unconscious repository of life-giving truths to a community. Nevertheless, concluded Werblowsky, all those who love Jerusalem and seek peace must not forget that part of the meaning of Jerusalem was expressed two and a half millennia ago by the prophet Isaiah (1:27) “Zion will be redeemed by justice and its inhabitants by righteousness.” 

He leaves it to the reader to ask himself or herself: if Judaism's ancient mythologies and religious symbolisms interfere with the creation of a Zion that is just and righteous, what has to change? How do Jews negotiate these symbols handed down to them in order to achieve a state redeemed by justice and righteousness?  


1.  EMET Prize biography: R. J. Zwi Werblowsky 
2.  God in the Age of Reason, My Jewish Learning
3.  Martin Buber (1878-1965), Jewish Virtual
4.  Numen on JSTOR
6.  R.J. Zwi Werblowsky, Whose Jerusalem? Whose Land? . . . 
7.  Native American Netroots: American Indian Sacred Places
9.  Hagee's organization Christians United for Israel is reported to have 1.8 million members; his Global Evangelism Television is said to have "several million" viewers. 
10.  According to Pew Research, 31 percent of Americans believe scripture should be read literally--which would be incompatible with a "purely spiritual" Jerusalem; one in four American households identifies as Christian evangelical.

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Friday, November 17, 2017

Sexual Harassment from Lin Farley to Al Franken

Roy Moore
Tarana Burke started the #metoo meme a decade ago after hearing a troubling story of sexual abuse from a young girl. Burke felt horrible that she was unable to comfort the girl who came to share her story, "at a time in my life when I really wasn't equipped to handle it." She referred the girl on to someone else after five minutes. "I couldn't even say me too," said Burke.

Burke is the real deal. She helped found a non-profit in 2006, Just Be, Inc. [1], to help empower young girls of color, and to help young girls of color overcome issues in the aftermath of sexual abuse and trauma. She has made it her life's work. Interviewed by Hari Sreenivasan on the PBS Newshour this Tuesday [2], she said "I think it's a mistake for us to keep creating boogeymen." Ultimately, it's about the systems in which people operate that make abuse possible, she suggested. 

Women Enter the Work Force in Large Numbers

After World War Two millions of women entered the workforce in North America. Initially they were largely kept in low-paid and low-status positions. My mother, an accomplished and powerful woman, tells a story from when she was a new immigrant, working as a waitress at the Steadman Motor Inn in Kamloops, British Columbia.  She had managed a major hotel back in Switzerland, and was looking to move into a management position.  When she approached the manager of the hotel to submit a resume, he rejected it, saying "We don't believe in women in management here." Sexual harassment came with the job and was expected. 

In 1975 Lin Farley headed an early women's studies department at Cornell. She and others there gave sexual harassment a name and a definition: "unwanted sexual advances against women employees by male supervisors, bosses, foremen or managers." [3] In 1981 Time Magazine reported that in the prior two years 18 million women had been sexually harassed at work, even as Phyllis Schlafly asserted that "virtuous women are seldom accosted." [4] 

By 1977 three court cases had established that women who were sexually harassed at work could sue their employers under the Civil Rights Act, which had established the Equal Employment Opportunity Commission in 1964. 

The Anita Hill Hearings

Anita Hill worked for Clarence Thomas as a newbie lawyer when he was at the Department of education in 1981. She moved with him to the EEOC in 1982 and quit in mid-1983. She was interviewed as part of the Thomas vetting process for his appointment to the Supreme Court and she reported that, while he was her boss, he harassed her with sexually explicit stories, describing the scenes of pornographic films, and once asking "Who left the pubic hair on my coke can?" 

During the hearings, her memo, gathered by the FBI and the Senate Judiciary Committee, was leaked to Nina Totenberg, legal affairs correspondent for NPR at the time.  Anita Hill recounted her testimony in a three day hearing that riveted the nation. It was an ordeal. Joe Biden mishandled the hearing. [5] Her credibility was drawn into question, she was sharply cross-examined, and at the end of the process Clarence Thomas's nomination was affirmed.  

Have we made Progress since 1991?

In the wake of the Harvey Weinstein expose in the New York Times [6] countless women latched onto the #metoo meme to tell their stories of harassment in the work place. Most of these stories did not name names, but some did. Collectively they are powerful evidence that,  sexual harassment in the workplace remains prevalent. 

In my law firm in Oakland I did not see it. We employed up to 50 people and we had the usual office politics, frictions, and personality clashes, but no sexual harassment as best I could tell.  Which is not to say we did not have sex. Over my twenty years with the firm we had the janitor stumble across an associate having sex with a client in his office after hours, we had another associate sleep with the office manager, and we had some folks download pornographic images from the internet. All of these incidents were dealt with discreetly, and I thought well. 

The EEOC reports fewer than 13,000 sex-based harassment charges filed each year (2010-2015). [7] Even if 75% or incidents go unreported [8] this suggests a number in the range of 52,000 possible sex-based harassment charges.  But these numbers seem like guess work.  In a 2016 study, the EEOC said that 25% to 85% of women had experienced sexual harassment in the workplace! [9] That's a remarkably vague number--tantamount to "we haven't a clue."  

So we are left to evaluate and respond to the current Sex Panic [10] anecdotes largely without meaningful data. 

Vilifying Moore

In the wake of the Harvey Weinstein scandal thousands of women have come forth, responding to the #metoo meme to tell their stories. Nine women [11] have accused 70-year old Roy Moore who is running for the Alabama Senate seat vacated by Jeff Sessions as having inappropriate sexual relations when they were teenagers, and he was a county prosecutor in his 30's.  One of the women says she was 14 years old when Moore picked her up near her house, drove her to a remote location in the woods, plied her with alcohol and removed her pants and shirt and had her touch his penis through his underwear. Another alleges Moore offered her a ride home after her waitressing shift ended when she was 16 years old, but instead of driving her home, Moore drove behind the diner, locked the door, attempted to remove her shirt, grabbed her neck and forced her head down towards his crotch. 

Like Mitch McConnell, I believe these women. But how are we to think of these 35 year-old allegations against Roy Moore? 

First, we must note that Roy Moore is unfit for office independent of his past sexual transgressions.  There is his ignorance of the U.S. Constitution as a judge[12],  there is his rejection of the rule of law (Moore disobeyed a federal court order to remove the 10 Commandments from the courthouse, and he ordered his probate judges to continue to refuse gay marriage after this was found unconstitutional by the Supreme Court), there is his belief that Christianity should order public policy, there is his leadership in the nutty "birther movement," there is his opposition to the voting rights act, etc. All of these things make Moore unfit to serve.  Yet the Alabama voters and the GOP leadership in Washington were and are o.k. with all of that. 

But now Mitch McConnell, the Senate Majority Leader, is afraid that these sexual allegations would negatively impact GOP races next year. Steve Bannon continues to stick by his man. Mitch McConnell wants him gone--but it has nothing to do with advancing the goal of reducing sexual assaults on women. It's all about next year's elections. In Washington, Moore's alleged sexual transgressions, more than three decades in the past, are about party politics, not about his ability to serve, and not about protecting women. 

We must not confuse the politics with the sex. That was true for Clarence Thomas. The Anita Hill memo would not have been leaked, and she would never have been pressured--not by Democrats anyway--if Thomas's politics were the politics of Thurgood Marshall. Anita Hill, who only reluctantly testified, would never have taken the stand. The Anita Hill hearings turned into a partisan circus, and the same is true for Roy Moore. Does that matter? I think it matters to this extent: if we expect that politically motivated disclosures against politicians will result in meaningful reform of any kind, we are fooling ourselves. 

The Passage of Time

Does it matter that all of these incidents alleged against Roy Moore, except one, date to when Moore was in his early 30's--he is now 70 years old. Moore married a 24-year-old in 1985 when he was 38 years of age, violating the Franklin Rule[13], but it worked out. The couple has now been married for 32 years, they have four grown children, and his wife vouches for him. "He is the most gentle, most kind man I have ever known," she told CNN [14]. We have no more reason to doubt her than to doubt the stories of the accusers. Only one of the accusers who have come forward ("he grabbed my buttock as I left his office", 1991) post-dates his marriage.  

These women who accuse Moore are in their 50's today. Seven of the incidents are likely not crimes, two would certainly be if proven. But this is not about criminal accountability. All of the women who have come forward are now in their 50's and any applicable statute of limitations has long run its course. 

The reason we have a statute of limitations for crimes is we recognize that with the passage of time memories fade, memories change, they conform to imposed narratives. Proving a case or offering a defense becomes more difficult as time passes: corroborating or exculpating witnesses disappear or they forget crucial details. To give great credibility to a victim's story, and no credibility to the accused, when an accuser first comes forward after 35 years is problematic. This is especially true with sexual encounters where everything depends on the nuance of the situation. 

These accusations of old transgressions are certainly relevant to Roy Moore's character. They are appropriate and important stories that should be considered by the voters. If the voters elect Roy Moore, I'm not sure the Senate has any business not to seat him. 

Deterrence and Punishment

Criminal statutes typically have two purposes: punishment and deterrence. 

The #metoo campaign aims to have a deterrent effect. But must we really live in fear for the duration of our natural lives that, should we ever become famous, we may be humiliated and shamed with any sexual transgressions, missteps, awkwardness, or misunderstandings we ever had with the other sex? Will such a fear realistically affect our behavior? Will this be any more effective than the deterrence effect of the death penalty? I'm skeptical.  

Harvey Weinstein is different. He was a sexual predator in a position of power. The point of the women who finally managed to go on record about him was not deterrence of future behavior; the point of telling these stories was about accountability for current behavior.  But that is not a  #metoo campaign, that is about victims stepping forward and making their complaints stick. That takes courage, and is hard. Will the #metoo campaign make it easier for women to step forward against their current tormentors in the future? As Tarana Burke suggests, only to the extent procedures and systems are put in place to handle such complaints. 

Due Process as a Value

Some who are coming forward with these #metoo stories are after something other than the public good: revenge. When a man becomes a celebrity, like Moore, these women who have been sitting on their secrets for 35 years are suddenly in a position of power. In a moment such as this they have an opportunity to inflict pain on a past harasser. 

Revenge, however, is not something we should encourage as a matter of policy. It brings to mind the Marcel Ophuls film, The Sorrow and the Pity, [15] and the revenge and persecution in post war France of perceived collaborators. What public shaming as revenge lacks is any due process. Along with the deserving, people get hurt who are innocent, and some who may not be innocent get hurt in ways that are disproportionate to the offense.

In the case of public figures like Roy Moore, the allegations do the damage. The mere allegation results in punishment without trial. Punishment without a fair hearing.  One of the element of the #metoo campaign is to believe the victim. We turn the traditional "innocent until proven guilty" on its head and we say, "guilty as charged until proven otherwise." Such suspension of the need for proof, such a Gadarene rush to judgment by a gullible public will surely encourage unscrupulous accusers to take advantage.  The power of social media to spread slanders and falsehoods should make us think twice whether we want to rely on #metoo campaigns to achieve the betterment of mankind. 

Garish Carnival Entertainment

As Larry Derfner noted on his facebook page, one of the things driving this present #metoo moment is we love to see big men fall: men like Harvey Weinstein, Kevin Spacey, Bill O'Reilly, etc. It is tabloid entertainment. We can't avert our eyes at the grocery check-out. It's a salacious public shaming of big-shots. We don't want it to stop. 

When there's blood in the water we come swimming and we join the frenzy. As Masha Gessen asks, when does a watershed #metoo moment turn into a sex panic? [10] We may just have crossed the line with Al Franken. 


1.  Just Be, Inc. about page
2.  PBS Newshour, Hari Seenervasin interview with Tarana Burke
3.  Wikipedia, Lin Farley
6.  New York Times (10/18/17) How the Harvey Weinstein Story has Unfolded
7.  EEOC data.
9.  EEOC  Report, Select Task Force on the Study of Harassment in the Workplace (June 2016)
10. The New Yorker, Masha Gessen (11/14/17) When Does a Watershed Become a Sex Panic?
11.  Washington Post (11/16/17) A Complete List . . . 
12.  Jonathan Adler, On Roy Moore's Constitutional Ignorance (11/15/17)
13.  Benjamin Franklin, I understand, had a rule of thumb for taking up with younger women: no younger than half your age plus seven--26 years old when Moore married.
14.  CNN (11/16/17) Who is Kayla Moore . . . 
15. Marcel Ophuls (1969), The Sorrow and the Pity (Shaming of women scene)

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Tuesday, November 14, 2017

National Identity for the Modern World: Fluid, Open, and Many-Layered

[Note: all references are in footnotes with links at the bottom; it’s an experiment. A drawback of links in the text is it’s often ambiguous which links you might want to explore. So let me know if you prefer this, or links in the body of the text]

Irish Fest in Chicago/credit Patty Wetli
In Brexit’s Irish Question (NYR, 9/28/17)[1] Fintan O’Toole writes of the importance of maintaining our modern, complex, multi-layered conceptions of national identity. It’s what our ever shrinking, but ever more populous world needs: to deal with shocks such as global warming, economic displacement, refugees. It’s what we need to coexist peacefully. Brexit, and other atavistic nationalist movements on the European continent, in the Middle-East, and in the United States are headed in the wrong direction. The blood and soil nationalism of Steve Bannon and Donald Trump won’t do.

In order to end their thirty years conflict known as The Troubles, the Ulster counties of Northern Ireland made a necessary shift in their identity and in their nationalism: they abandoned blood and soil nationalism and adopted a sovereignty of the mind that is fluid, open, and many-layered.

The Troubles—which began in 1968 and ended with the Good Friday Accords in 1998—reflected “a territorial conflict, not a religious one,” says the BBC [2]. “At its heart lay two mutually exclusive visions of national identity and national belonging.” The Troubles were sparked by competing British and Irish nationalisms. In order to resolve the conflict, the Republic of Ireland relinquished its territorial claim to Northern Ireland, and Britain, too, relinquished its territorial claims over Northern Ireland. Both gradually embraced things that nation states generally do not like, says O’Toole: ambiguity, contingency, and multiplicity. Anyone born in Northern Ireland was left to forge their own identity: they could apply for a British passport, they could apply for an Irish passport, or both. The Good Friday Agreement made residents of Northern Ireland British, or Irish, or both, as they each individually chose. Territory was no longer destiny with respect to your national identity.

Such a fluid, open, and contingent national identity for Northern Ireland was enabled, in part, by the European Union. Ireland and Britain entered the EU together in 1973. With Britain and Ireland partners in the EU, the residents of Northern Ireland—no matter which identity they chose—would still come together as citizens of the EU. This belonging to a greater whole made a fluid sub-grouping of identities much easier. Within a greater whole, national identities can have many different dimensions and guises.

Englishness, notes O’Toole, has for centuries been wrapped up in different dimensions and guises. Englishmen (and women) were citizens of Great Britain, subjects of Empire, and more recently (1993) citizens of the EU [3]. Now that the Empire is long gone, and England is losing its grip on Great Britain—Scotland is becoming more and more its own country, and the hold on Northern Ireland has been relinquished—the Englishmen (and women) who opted for Brexit were asserting a much older, inward looking English nationalism: an atavistic blood and soil nationalism.

For these reasons, says O’Toole, the question of Northern Ireland lies at the heart of the Brexit negotiations. As Britain leaves the EU, will the parties reimpose a hard border across the island? Can the ambiguous, fluid, and contingent nationalism of the Good Friday Agreement survive Brexit?

It’s important that it does, suggests O’Toole, but it will be devilishly difficult.

In the United States, we’ve always had an ambiguous, fluid, and multi-layered national identity. Pilgrims arrived on these shores for religious freedom. Thirty-five million of Irish ancestry—4.5 million arrived between 1820 and 1930 [4]—account for more than 10 percent of the population [5]. They brought a rich tradition of music, poetry, and writing that harkens back to Ireland; they retain a special bond with that island. Millions are eligible for or are dual citizens, and through their Irish dual-citizenship, these Americans are also citizens of the European Union. The fluid and multi-layered tapestry of American citizenship is further enriched by all those of Italian, German, French, Polish, etc. ancestry. Many of these are dual citizens and have their own ties to the old countries and to the EU. They all bring their special traditions to create our multi-layered identities.

Six million Jews in the U.S. have a strong identity with Israel as well as America, and more than all of them—e.g. non-Jewish spouses too—can become overnight citizens of Israel anytime they should choose to.

Some of these national identities are contingent. Eleven million, mostly from Central America are undocumented, living and working and raising families in the United States, their identities more American than Mexican or Honduran or Nicaraguan, paperwork or no paperwork.

Thirteen percent of the population (43 million) is of Black or African ancestry [6]. Just ask Ta Nehisi Coates [8] what layers this introduces for national identity.

Nearly six percent of the population is of Asian ancestry, and what tremendous contributions they have brought.

It’s the American melting pot. We come together around an idea—we hold these truths to be self-evident, that all men are created equal. Our national identity, like that of Northern Ireland is more of the mind than of the soil. Our identities are fluid, open and multi-layered; and as in the case of the undocumented, contingent. We are all immigrants, free to love guns, God, apple pie, and the flag.

I am twice an immigrant. I was born in Switzerland, Berner Deutsch as far back as anyone has figured out. I remain a Swiss citizen to this day. My family emigrated to Canada when I was 12 years old. Canada treated me well. I became a citizen at 18 years of age. Canada provided me with an education. It provided state support for my ambition to become a triple jumper. It taught me philosophy. I was also a British Columbian. I competed for B.C. in the Canada Games. I received my five BC shares [7]. And I emigrated a second time, south, to Washington State, then California: to the United States. Washington educated me in the law, and I started my career in the King County Prosecutor’s Office in Seattle. There I passed the bar exam, got my first law job, and became a U.S. citizen all in one week in 1983. California offered her roads for bike riding, her tennis courts and squash courts, her mountains, and her law courts for a career in construction law.

Today, shocked and appalled by Trump, I am as fervently American as any Trump voter. Here I will take my stand and do my duty as a citizen if authoritarianism comes. But, like all Americans, my identity is fluid, ambiguous, and multi-layered, based on the ideas of freedom, individual rights and individual responsibility. Our world is far too global and integrated to allow for national identities based on blood and soil.

The Kurds, the Catalans, the Brexiters, the Israelis, and Donald Trump all have the wrong idea. If we are going to live in peace with each other, productive, with justice and opportunity for all, we need fluid, open, and many-layered conceptions of national identity, not a blood and soil identity. We need more of the UN, not less. We need more multilateralism, not less. We need more internationalism, not less.


2.  BBC History, The Troubles.
4. Library of Congress: Irish immigration
5. Wikipedia: Irish Americans
8. Ta Nehisi-Coates: Between the World and Me.

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