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Dispatches from Kabul: On the Banks of the Kabul River

Shamshira

Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

A Public Murder

She was a 27-year-old student of Islamic law and a devout Afghan Muslim. After praying at the Shah-e Du Shamshira mosque at the center of Kabul, Farkhunda Malikzada confronted the caretaker about the practice of selling charms or tawiz, amulets containing Quranic verses and incantations. Like many other conservative Muslims, she believed they were superstitious and un-Islamic. As she admonished the caretaker and the confrontation escalated, he began shouting, “In the name of God, kill her! She has burned the Quran!” Within minutes, a mob of hundreds had assembled, and while the police stood idly by, Farkhunda was stoned, beaten, set on fire, and left to die on the banks of the Kabul River. Some of those present filmed the lynching on their mobile phones.

Violence is endemic in Afghanistan and modern political and legal institutions have faltered since the fall of the Taliban in 2001, but the brutal murder of Farkhunda – which took place just last March – was particularly shocking given the cultural understanding in Afghanistan that public violence toward women is taboo. Despite the outcry from within the country and abroad, a number of prominent Afghan officials and religious leaders immediately endorsed the murder, highlighting Afghanistan’s complicated relationship with Islam and shattering the cautious hopes of reformers, particularly women’s rights advocates. The official spokesman for the Kabul police characterized Farkhunda’s protestations as a publicity stunt with the aim of attaining U.S. or European citizenship, and during his Friday prayer sermon, Ayaz Niazi, the prominent imam of the Wazir Akbar Khan Mosque, said, “If someone disrespects the Quran, you cannot expect people to control their emotions and wait for judges to decide the punishment.” Mullah Hassam of the Bagh-e Bala mosque argued that mahkama—e sahrayi or arbitrary execution is the appropriate punishment for insulting Islam. Soon thereafter, an investigation by the Ministry of Hajj and Religious Affairs found no evidence that Farkhunda had burned the Quran, and concluded that she had been slandered.

I first read about Farkhunda while weighing the pros and cons of moving to Kabul to practice law. I knew about Afghanistan’s abysmal human rights record, and had read up on the fragile legal protections for women and girls, as well as the “moral crimes” they are Read more

Posted on by Robert J. Delahunty

The Burials of Greek Warriors

The ancient Greeks paid unusual homage to the bodies of soldiers – their own tomb-unknown-soldier-marble-sculpture-dying-ancient-greek-hoplite-warrior-holding-his-shield-spear-athens-greece-42949806city’s, or occasionally those of another – who had fallen in battle, and surrounded their funerals with solemn and impressive rituals. Thus, in the seventh book of Homer’s Iliad, the Trojan prince Hector challenges the invading Greek army to select its finest warrior to fight with him man-to-man, and so decide the outcome of the Trojan War by single combat. Hector promises that if he prevails and kills the Greek challenger, he will give him an honorable funeral and burial, so that the fame both of the Greek hero and of Hector himself will endure. The Elizabethan poet George Chapman, in a translation celebrated in Keats’s On First Looking into Chapman’s Homer, renders Hector’s speech as follows:

. . . if I can slaughter him

         (Apollo honouring me so much), I’ll spoil his conquered limb,

         And bear his arms to Ilion, where in Apollo’s shrine

         I’ll hang them, as my trophies due; his body I’ll resign

         To be disposed by his friends in flamy funerals

         And honour’d with erected tomb, where Hellespontus falls

         Into Aegeum, and doth reach ev’n to your naval road,

         That when our beings in the earth shall hide their period,

         Survivors sailing the black sea may thus his name renew:

         “This is his monument, whose blood long since did fates imbrue,

         Whom passing far in fortitude, illustrious Hector slew.”

         Thus shall posterity report, and my fame never die.

Much of the latter part of The Iliad is in fact occupied with detailed descriptions of funeral practices, including the elaborate feasting, games, gift-giving, ceremonies and sacrifices that Achilles staged in honor of his fallen comrade Patroclus and the building of the monumental mound that he erected as Patroclus’ temporary burial site. Among other things, Achilles slaughtered “twelve Trojan youths, born of their noblest strains,” to the memory of Patroclus (Iliad Book XXIII, l. 19). And we should recall that the conclusion of The Iliad is a warrior’s burial: it marks the funeral rites of Hector, tamer of horses (Iliad Book XXIV, l. 711).

But in the world Homer describes, such practices are reserved for heroes and lords like Patroclus. Ordinary soldiers killed in battle seem simply to have been cremated (see Iliad Book I, l. 52). Thus, Homer has the Greek king Agamemnon say that corpses should be given to the flames promptly after death, and the Greek army acts accordingly, gathering in both bodies and fuel (Iliad Book VII, ll. 417-32).   (The twelve young Trojans whom Achilles sacrificed were left unburied.)

The archaic tradition regarding burial is reflected in later Greek writing. In the seventh century, the Spartan poet Tyrtaeus, much revered in his native city (the Spartan army sang his poems on the way to battle), wrote in one elegy:

he that falleth in the van and loseth dear life to the glory of his city and his countrymen and his father, with many a frontwise wound through breast and breastplate and through bossy shield, he is bewailed alike by young and old, and lamented with sore regret by all the city. His grave and his children are conspicuous among men, and his children’s and his line after them; nor ever doth his name and good fame perish, but though he be underground he liveth evermore, seeing that he was doing nobly and abiding in the fight for country’s and children’s sake when fierce Ares brought him low.

Under Tyrtaeus’ influence, Spartan soldiers wrote their names on small sticks so that if they were killed, their bodies could be readily identified. See Diodorus Siculus, Book VIII, c. 27.

The funeral rites of Athens

Fifth century, democratic Athens, however, stands out for the remarkably full honors that it extended to ordinary citizen-soldiers.

The historian Herodotus relates the tale of the Athenian statesman Solon, who claimed that the happiest of all men was one Tellus, chiefly because of the manner of his death in battle and subsequent burial (Histories, Book I, 30):

Tellus was from a prosperous city, and his children were good and noble. He saw children born to them all, and all of these survived. His life was prosperous by our standards, and his death was most glorious: when the Athenians were fighting their neighbors in Eleusis, he came to help, routed the enemy, and died very finely. The Athenians buried him at public expense on the spot where he fell and gave him much honor.

Later Athenian authors tell us more about such funeral honors. Indeed, these honors occupied a central position in the city’s civic life.

In Plato’s curious dialogue Menexenus, perhaps intended as a playful comment on the Athenian practice of solemnizing the burial of dead with funeral orations, Socrates is made to say:

O Menexenus! Death in battle is certainly in many respects a noble thing. The dead man gets a fine and costly funeral, although he may have been poor, and an elaborate speech is made over him by a wise man who has long ago prepared what he has to say, although he who is praised may not have been good for much. The speakers praise him for what he has done and for what he has not done — that is the beauty of them — and they steal away our souls with their embellished words; in every conceivable form they praise the city; and they praise those who died in war, and all our ancestors who went before us; and they praise ourselves also who are still alive, until I feel quite elevated by their laudations, and I stand listening to their words, Menexenus, and become enchanted by them, and all in a moment I imagine myself to have become a greater and nobler and finer man than I was before. And if, as often happens, there are any foreigners who accompany me to the speech, I become suddenly conscious of having a sort of triumph over them, and they seem to experience a corresponding feeling of admiration at me, and at the greatness of the city, which appears to them, when they are under the influence of the speaker, more wonderful than ever.

No doubt the most famous passages in Greek literature to describe the honor Periclesthat is due to a city’s fallen soldiers are found in Thucydides’ rendition of the Funeral Oration delivered by the Athenian leader Pericles over those who died at the outset of the Peloponnesian War (431 BC – 404 BC), in which Athens and Sparta contended for supremacy in Greece. Less well known than Pericles’ speech, however, is Thucydides’ introduction to it, which describes the Athenians’ customary practices on such solemn occasions. Let us consider Thucydides’ remarks here. (Whether Thucydides’ description is wholly accurate is considered in Mark Toher’s 1999 paper, On “Thucydides’ Blunder”.

In Thomas Hobbes’ translation:

Having set up a tent, they put into it the bones of the dead three days before the funeral: and every one bringeth whatsoever he thinks good to his own. When the day comes of carrying them to their burial, certain cypress coffins are carried along in carts, for every tribe one, in which are the bones of the men of every tribe by themselves. There is likewise borne an empty hearse covered over, for such as appear not, nor were found amongst the rest when they were taken up. The funeral is accompanied by any that will, whether citizen or stranger; and the women of their kindred are also by at the burial, lamenting and mourning. Then they put them into a public monument, which standeth in the fairest suburbs of the city [the Ceramicus (RJD)]; in which place they have ever interred all that died in the wars, except those that were slain in the field of Marathon: who, because their virtue was thought extraordinary, were therefore buried there-right. And when the earth is thrown over them, some one thought to exceed the rest in wisdom and dignity, chosen by the city, maketh an oration, wherein he giveth them such praises as are fit: which done, the company depart.

In his splendid book Burial and Ancient Society: The Rise of the Greek City-State (1987), Ian Morris observes that Thucydides “presented death in battle as the apotheosis of citizenship, and, interestingly, the burial of the war dead is the only context we know of where funeral games took place in fifth-century Athens. Three inscribed bronze vases given as prizes in these games . . . are known.”

Athenian burial practices and its democracy

David Pritchard adds to our understanding of Athens’ funeral rites for its dead warriors in his essay The symbiosis between democracy and war: the case of ancient Athens (2010).  The tombs in which the dead warriors were placed “were adorned with statues of lions and friezes depicting groups of generic hoplites and cavalrymen vanquishing their enemies, both of which signified the aretê [virtue or, more specifically, courage (RJD)] of those being buried.” Further, “each tomb displayed a complete list of the year’s casualties, including citizen sailors, which was organised [into the ten Athenian] tribes. . . . [T]hese casualty lists gave the same space to the name of every citizen, regardless of what his military rank and social class had been.” Pritchard observes that this austere form of remembrance “reinforces the impression that the principle of democratic equality . . . strongly shaped [the Athenians’] honouring of the war dead.” He notes that a surviving fragment of Euripides’ lost play “Erechtheus” says that those who “die in war they share a common tomb with many others and an equal fame” (added emphasis) (J.O. Burtt trans.).

Further, Athens’ dead combatants were not only equal, in the city’s eyes, in nobility and courage; they were also beyond death, perpetuated in the renewed and everlasting life of the city. W.R. Connor, in his 1988 article Early Greek Land Warfare as Symbolic Expression, calls attention to this aspect of the tribal war memorials:

The final commemoration . . . is a memorial consisting of names, just names, name after named, arranged by tribe. . . . These, unlike the battlefield trophaion [the trophy or victory marker erected on the field after a battle (RJD)], are intended to be permanent. As the impermanence of the trophy marks the transitoriness of human relationships, the inscribed names of the dead mark the endurance that comes from comes from the merging of the individual into the community.

Some conclusions

Reflection on the ancient texts and practices will lead us to several conclusions about the significance of the burial of a city’s own battle-dead.

First, we see (at least in democratic Athens) the heroization of the common soldier-citizen. Ordinary men who die fighting for their city can now enter the honor-world that in Homer is reserved for lords and heroes. If, as Eva Brann has suggested, the Iliad itself can be seen as a “tremendous war memorial” because it records the names, descent and homelands of the many leading warriors who died in its battles, so the Athenian mortuary list of names raises those it commemorates to the same heroic level. (See Eva Brann, Homeric Moments (2002)). Even a poor man, Plato remarks, receives “a fine and costly funeral” and an “elaborate speech.” And Thucydides tells us that Athens also honors its unknown soldiers: the funeral procession includes “an empty hearse covered over” to commemorate them. Furthermore, the families of those who have fallen are ennobled along with them. Democratic America, with its simple and egalitarian national cemeteries, its Tomb of the Unknown Soldier and its unadorned memorial listing the names of those who died in the Vietnam War, should readily grasp these points.

Athens may have been a democracy but, as Pericles argued in the Funeral Oration, it was a democracy of a singularly aristocratic kind, in which poverty and obscurity were not insuperable barriers to the achievement of honor by those who would serve the city. The ordinary citizen, Pericles says, “is not put back through poverty for the obscurity of his person, as long as he can do good service to the commonwealth” (Peloponnesian War, Book II, c. 37). And even if some of the dead were worthier of praise than others, Pericles insists that all must be honored equally: “even such of them as were worse than the rest, do nevertheless deserve, that for their valour shown in the war for defence of their country they should be preferred before the rest” (Peloponnesian War, Book II, c. 42). All the deaths that are being commemorated were honorable: “choosing rather to fight and die, than to shrink and be saved, they fled from shame, but with their bodies stood out the battle; . . . [and so] left their lives not in fear, but in opinion of victory” (id.).

Second, we should note the extraordinary sense of identity and common purpose that exists between the democratic city and those who fight for it. Thucydides has the Athenian general Nicias tell his soldiers that of themselves they make the city: “wheresover you please to sit down, there presently of yourselves you are a city” (Peloponnesian War, Book VII, c. 77). The city’s fate and their fates are the same, and even after death, they will live in the continuing and indestructible life of the city. The burial rites encapsulate the city’s promise, not only that it will remember its battle-dead, but also that it will recover their remains and inter them before the eyes of those they died defending. Everyone who has “given his body to the commonwealth,” Pericles affirms, will “receive in place thereof an undecaying commendation and a most remarkable sepulchre” (id. at Book II, c. 43).

Indeed, we might go even further. Robert Hertz, a pupil of the great nineteenth century sociologist Emile Durkheim, argued in the spirit of his teacher that we should conceive of the emotions aroused by a death and the rites by which death is marked, not simply as individual or private matters, but as social facts. (For an excellent summary of Hertz’s ideas, see Douglas J. Davies, The social triumph over death (2000). Hertz pointed out that the person who had died was not merely a biological individual but also “a social being grafted upon” that body. Hence the death of that individual represented a threat to the social order, and its destruction “is tantamount to a sacrilege” against that society. Society had to meet this threat somehow. It did so, Hertz argued, in a two-phased sequence of mortuary rituals: first, a phase of “disaggregation,” represented by the temporary disposal of the corpse; then by a phase of “reinstallation” or “secondary burial,” from which the society reconstituted itself and emerged triumphantly over death. In that final, reconstitutive ceremony, mourning came to an end and the departed soul was taken to have been incorporated into a social order of the dead that was continuous with the order of the living. The burial rites, in short, affirmed order as against the threat of disorder, and the unending life of the society as against the death of its individual members. As Morris summarizes this approach, “the funerary process re-presented society as pure and unblemished, in a perpetual youthful bloom through the preservation of the beautiful corpse, and its subsequent reduction to a permanent state via cremation.”

Finally, the burial rites renew and magnify the city, not only in the eyes of its own citizens, but also in those of the foreigners who watch the spectacle. Plato’s Socrates says that if there are foreigners present at a funeral speech, he experiences “a sort of triumph over them,” while they “seem to experience a corresponding feeling of admiration at me, and at the greatness of the city.” Pericles too notes in his oration that it will be “profitable to the whole company [of his audience], both of citizens and strangers,” to hear the battle-dead praised and, more especially, to hear the democratic constitution of Athens described (Peloponnesian War, Book II, c. 3).

(Note: For those who may be interested in exploring these topics further, volume IV of Kendrick Pritchett’s monumental The Greek State at War (1985) provides a wealth of information).

Posted on by Robert J. Delahunty · 2 Comments

The Just War in Greek Tragedy: Euripides’ “Suppliants”

Woman and Skull
American Woman Writes a Thank You Note for Souvenir Japanese Skull, Life Magazine, 1944

I am very grateful to the editors of this website for offering me the opportunity to return to its pages. I would like to use the opportunity to pursue what I hope will be a fresh approach to the just war tradition. I plan to explore just war thinking through an extended consideration of Greek tragedy – specifically, Euripides’ Suppliants (or Suppliant Women).

Just war theory has undoubtedly become the predominant account of the morality of war in contemporary secular thought. As Michael Walzer, who has done so much to stimulate the development, has observed, ever since the War in Vietnam, American debates over the morality of war have been structured in terms of Just War theory. See Michael Walzer, The Triumph of Just War Theory (and the Dangers of Success) (2002). So firm is its hold that it was not surprising to hear President Obama consider it at some length in his 2009 Nobel Prize acceptance speech, or to read that his Administration claims to be following it in its military activities, including drone warfare. (For critical discussion, see this piece. Likewise, just war theory has long been the mainstream tradition in Catholic and other Christian thought about peace and war.

The Just War Canon

Part of the explanation for the dominance of just war theory is the pedigree that scholars have assigned to it. In most standard accounts, such as Alex Bellamy’s excellent Just Wars: From Cicero to Iraq (2008), the tradition of just war thinking begins with the Roman politician, orator and thinker Cicero, is Christianized by St. Augustine, is then reconfigured by St. Thomas Aquinas, and afterwards is handed down through the early modern Spanish scholastics and their secular successors, including Hugo Grotius and Emer de Vattel to the modern period. In this narrative, the tradition waned in the “positivist” period of international law in the nineteenth century, but was revived in the aftermath of the First World War, see Cornelius van Vollenhoven, Three Stages in the Evolution of the Law of Nations (1919), and then came into its own in this country with writers of the Cold War period such as Paul Ramsey, see The just war: Force and political responsibility (1968) and others.

In my judgment, this standard narrative is at best incomplete, at worst false. If nothing else, it fails to account for the centuries-long gap between Augustine and Aquinas. As Philip Wynn has recently argued in a monumental work of scholarship, Augustine on War and Military Service (2013), Augustine’s writings on the justice of war are scattered and episodic, reflecting more his pastoral concerns as a bishop than his intellectual preoccupations as a systematic theologian. Moreover, as I have argued myself, the long interval between Augustine and Aquinas, Christian thought and practice concerning war and peace was not filled by continuing reflection on, and elaboration of, a just war doctrine stemming from Augustine. Instead, Christian thought exhibited several different tendencies, one of which emphasized the sinfulness of all wars, including just ones, and required returning warriors who had taken life in their campaigns to confess their sin and do penance for it. See Robert Delahunty, The Returning Warrior and the Limits of Just War Theory (2014). Just war theory, with purported roots in Augustine, was in fact largely the creation of canon lawyers working for the Papacy in the great eleventh century Reform (or Revolution) undertaken by Popes such as Gregory VII (Hildebrand).   Later scholars have accepted as legitimate the pedigree that these canonists confected for just war doctrine.

A Different “Canon”

There is, moreover, another important, but largely neglected, stream of Western thought about just war that flows outside the current canon. I would hesitate to say that these other writings constituted a “tradition,” but they certainly equal the current just war canon in terms of antiquity, depth, and the distinction of their authors. This body of thought and reflection is found primarily in works of literature and history, rather than in theology, philosophy, jurisprudence, or statecraft. In this counter-canon (to call it that), the Roman historian Sallust would loom as large as Cicero does in the current canon, and Shakespeare would be as important as Aquinas or Grotius. In this series of postings, I will argue that the Athenian tragic poet Euripides, writing in the late fifth century BC, deserves inclusion in any canon of great Western writers on the subject of justice in war.

I am not, of course, arguing that one can find the term “just war,” or any near equivalent, in the writers of drama and history whom I have in mind. (For that matter, it is not so easy to find occurrences of the term in any ancient writers, including Cicero.) What I am saying is that the concept of a just war can be identified there, and that the application of that concept is studied in ways that can be of profound interest. To be sure, dramatists and historians pursue their studies in ways that are necessarily different from those of philosophers or lawyers, whose function it is to frame general rules. The former are essentially concerned with individual situations, and their presentation of the issues is concrete and unsystematized. To use Wittgenstein’s distinction, they show rather than say. But the very complications that are added by fixing on the unique and unrepeatable can deepen and enrich our reflections on the morality of war.

The Relevance of “The Suppliants”: Humanitarian Intervention

I am not especially concerned with whether Euripides’ play is relevant to contemporary concerns or not, but in fact it is.

Written (likely) sometime in the late 420s, The Suppliants is the product of wartime conditions. Athens and its great rival Sparta had gone to war for hegemony in Greece some years earlier, in 431. The end of the conflict came only in 404, long after any plausible date for the play. The war saw the collision of two very different types of system: Sparta was a conservative, land-based power of a somewhat autocratic cast, Athens had been a popular democracy for decades (an unusual political régime in the ancient world), a naval power, and a commercial hub, the center of a sea-based empire. Euripides’ drama is not overtly about the Peloponnesian War (though many readers have heard echoes of it in the play), but about a mythic conflict many centuries before, between Athens under its legendary King Theseus and the city-state of Thebes, long a rival and often an enemy of Athens.

In the play, Theseus and Athens are persuaded to intervene militarily against Thebes on behalf of a third Greek city state, Argos. Argos has gone to war against Thebes in support of a claimant to the Theban throne. Argos’ war, as the play will reveal, was impious and unjust. Argos has been defeated, and many of the warriors in the Argive expeditionary force have been killed in battle before the gates of Thebes. The Greek war convention called for the defeated side to request a truce so that it could recover the bodies of its battle-dead and bury them; the victorious side was expected to grant the truce and permit the recovery of the dead bodies. Thebes had denied the Argive request, and the bodies of the Argive soldiers remained unburied. Led by Adrastus, the King of Argos, the bereaved mothers of the unburied Argive soldiers come as “supplicants” to Athens, seeking its intervention against Thebes, whether by arbitration or, if need be, by war, to recover their sons. After considerable delay and debate, Theseus and Athens finally agree to march on Thebes. Their campaign is bloody and closely fought, but successful, and the bodies are recovered and brought back to Athens. That might seem a natural point at which to end the play, but Euripides has several surprises left for us, including the spectacular suicide of the widow of one of the Argive soldiers (a scene without precedent in Greek tragedy) and the unexpected appearance of the goddess Athena, a dea ex machina, at the end, who issues orders that countermand those just given by King Theseus.

The action of the drama poses, in stark form, the core questions arising from armed military interventions for humanitarian purposes. In recent decades, the United States has repeatedly faced the same question: in Kosovo; in Libya; in central Africa (against the Lord’s Resistance Army); and currently in Syria. Euripides forces his audiences and his readers to ask themselves what humanitarian interventions ultimately achieve, and whether they resolve conflict or only perpetuate it. Further, the play provokes reflection on the question of the motivations for humanitarian intervention: is the intervening power truly acting altruistically or for the sake of some international common good, or does intervention usually stem from hegemonic or imperialistic motives? (On the contemporary debate, see Michael W. Doyle, The Question of Intervention: John Stuart Mill & the Responsibility to Protect (2015)).

The treatment of the bodies of dead enemy combatants

There is a second issue dramatized by the play that holds contemporary interest – though our concern with it seems less than that of the Greeks. This is the question of the treatment of the bodies of enemy warriors who have been killed in battle.

Our contemporary war convention is clear and emphatic in its rules for the treatment of battle-dead soldiers. Article 15 of the First Geneva Convention of 1949, requires the “Parties to the conflict” “particularly after an engagement” “to search for the dead and prevent their being despoiled.” Article 17 further provides that the Parties to the conflict “shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged.” As the 1952 Commentary by the International Committee of the Red Cross (ICRC) notes, the Articles refer to the “Parties to the conflict,” thus making it plain that these obligations apply to both sides.

The ICRC Commentary also emphasizes the respect with which the dead bodies must be treated:

The dead must also be looked for and brought back behind the lines with as much care as the wounded. It is not always certain that death has taken place. It is, moreover, essential that the dead bodies should be identified and given a decent burial. When a man has been hit with such violence that there is nothing left of him but scattered remains, these must be carefully collected.

Similar prescriptions have also been laid down in religious teaching, and have long formed part of the customs and practices of war. Consider, e.g., early Islam. “Following the desecration of his own uncle by enemy soldiers, Mohammad (570-632) banned the mutilation of the dead. Following suit, Abou Bekr (571-634), explicitly told his soldiers going out to fight enemies that ‘see that none deals with treachery. You shall mutilate none.’ The scholar Abd al-Rahman al Awza’i (704-74) reiterated this rule against mutilation of the enemy dead.” Alexander Gillespie, A History of the Laws of War, vol. I (2011). Or consider the customs of war in early modern Europe. Shakespeare closes his Richard the Third with lines intended to show the magnanimity of the victor:

RICHMOND

What men of name are slain on either side?

DERBY

John Duke of Norfolk, Walter Lord Ferrers, Sir Robert Brakenbury, and Sir William Brandon.

RICHMOND

Inter their bodies as becomes their births.

Transgressions

Notwithstanding the clear prescriptions of international law and military custom, the norm in question has often been violated, even by democratic armies fighting in recent wars. For whatever reasons, men at war often experience an overpowering desire to dishonor, despoil or mutilate the bodies of the enemy soldiers they have killed. Short of that, they or their governments may refuse to release the bodies of enemy battle-dead. The norms against such practices have to be powerful indeed, because the urges that they attempt to control are so compelling themselves.

Instances of violations are plentiful. In 2012, photographs and a video of four US Marines in Afghanistan urinating on the bodies of dead Taliban fighters. An outcry ensued, and the military promised a criminal investigation. In 1967, a US Army sergeant was court-martialed after photographs came to light in which he was shown holding the decapitated heads of two enemy corpses. The Army declared the mutilation of dead enemy bodies to be “subhuman” and “contrary to all policy.”

The United States military is of course not alone in this. Israeli human rights groups have complained of their government’s policy of refusing to return bodies of Palestinians killed in bomb attacks they initiated or in conflict with the Israeli army. And in the civil war in Syria, both ISIS forces and those fighting them appear to have mutilated enemy combatants’ dead bodies.

Moreover, there is nothing new about these practices, nor are they common only in developed societies. In Two Leggings: The Making of a Crow Warrior (1967), Peter Nabokov presents the autobiography of Two Leggings, a celebrated nineteenth century Native American. Towards the end of his story, Two Leggings reminisces about the joys of warrior life. He recounts the fate of a dead Sioux whom he had killed the day before:

Riding over into the bushes, I found the Piegan’s body. After scalping his whole head I cut it into four parts, giving one to White Eye, one to Short Bull, and keeping the other two. Also I carried away his rifle. We discovered that they were Sioux and not Piegans. . .

When we returned to our camp we drove the captured horses through the tipis and I carried my scalp pieces tied to the end of a long pole. Soon the camp was alive, men brought out their drums, and the women began the scalp dance. . . .

Everyone joined in. For several days there was feasting and dancing. I was invited everywhere and told the story over and over again.

We were happy.

Why?

Why this happens is not well understood. Frances Larson, an anthropologist at Durham University in England, has studied the question of mutilation in her fascinating book Severed: A History of Heads Lost and Heads Found (2014). During the Second World War in the Pacific, American servicemen regularly mutilated the corpses of dead Japanese soldiers, often decapitating them and preserving their skulls as trophies. “It was not particularly hard to find human heads on display during the Pacific Campaign of the Second World War. . . Skulls were hung from bulletin boards and lashed to the front of US tanks and truck cabs as macabre mascots.” Later inquiries seem to confirm the anecdotal evidence. “One forensic report estimated that the heads were missing from 60 per cent of the Japanese dead repatriated from the Mariana Islands in 1984. And a Japanese priest who visited Iwo Jima regularly in the decades after the war to conduct services for the dead reported that skulls had been taken from many of the remains . . . . Customs officials in Hawaii, the gateway home for returning American troops, routinely asked soldiers whether they had any bones in their bags.”   Larson’s book illustrates her narrative with remarkable images and photographs, one of which, taken from Life magazine, shows an attractive young American woman gazing smilingly on a Japanese soldier’s skull. She is writing a “Thank you” note to her Navy boyfriend for sending the souvenir to her. Around the time the photograph was first published, a Pennsylvania Congressman presented President Franklin Roosevelt with a letter-opener fashioned from the arm bone of a Japanese soldier. (Roosevelt returned it.)

Legal warnings accomplished little if anything. The War Department pronounced the desecration of the Japanese dead to be a “grave violation of law and decency.” US Navy commanders in the Pacific theater threatened servicemen with “stern disciplinary action” if any of them were caught taking enemy body parts as souvenirs. But the harvesting of heads, teeth and fingers continued.

What causes such behavior? Larson refers to the work of another anthropologist, Simon Harrison’s Dark Trophies (2012), for a possible explanation. Harrison has argued that “trophy-taking tends to take place when men’s virility and power is expressed through hunting metaphors,” as when the military tracks “kills” and “body counts.” And a possible explanation is that such trophies have “conferred status” on their owners. Larson herself suggests what seems to me more plausible explanations. “[I]n the field of battle they performed many different functions. As heterogeneous as the soldiers who acquired them, they could symbolize fury or fear. Some were treated like hunting trophies, but others were transformed into tokens of love, mascots, pseudo-scientific specimens or playthings. And they were as likely to inspire moments of introspection as they were to encourage displays of bravado: after all, a human skull is the shell of a person that sits deep within us all. It is little wonder that soldiers, so close to death in more ways than one, were drawn to human skulls.”   Taking enemy skulls “helped soldiers regain a sense of empowerment, because the trophy head, held aloft, is an assertion of control in the chaos of battle. The same could be said of the executioner who holds up a traitor’s head on the scaffold: order is declared anew.”

Posted on by Marc O. DeGirolami

Welcome (back) Robert Delahunty!

10-113 robert delahunty law magMark and I are delighted to welcome back Professor Robert Delahunty to the Forum for the next month or so. Robert teaches at the University of St. Thomas School of Law and is an expert in the constitutional law of foreign relations, the law of war, and public international law. He is also the author of a wonderful book on Spinoza and here at CLR Forum he has written a brilliant series on Tocqueville and religion, among others. It’s a pleasure to have him again with us.

Posted on by geraldrussello

You’ve Been HADD

Thanks again to Marc and Mark for letting me bog here for the past few weeks. It has been great fun.  Just another couple of items before I go.

I wrote a piece recently in The National Catholic Register on the upcoming Court term. The article focuses mostly on decisions that affect religious liberty.

Also, this piece purports to explain to us the real origins of religion. It is not supernatural or transcendent at all of course; scientists are here to make us recognize what we think of as divine reality are only misfired genetic cues. We want to attribute agency to things, so for things that don’t have a clear agent (the weather, natural disasters), we invent one: God. The scientists have even come up with a name for our disorder: HADD, the hypersensitive agency detecting device.

Not to worry if you don’t like that explanation, however: the folks in white lab coats tell us religion could simply be an adaptation of “normal” evolutionary drives like cooperation. People who were religious were better playing with others, and so had a better chance of surviving.

Of course, all this is quite beside the point, and very old hat. Historian Christopher Dawson was complaining in 1931 that “[a] theory is not regarded as ‘scientific’ unless it explains religion in terms of something else – as an artificial construction from non-religious elements.” But as he also explained in his work, religion is something else entirely, a mode of being and experience that cannot be reduced to a byproduct of something else.  One would have thought these points would be retired by now.  As Russell Saltzman explains in First Things, one thing the scientist don’t consider as a spur to religious thought is our common experience of death. The sense of existential loss of ourselves and others opens a potential meeting space for the divine, and may be the true precursor to religious experience.

Besides, arguments like this always seemed to beg the question. Even if religious feelings “evolved,” why wouldn’t that also be consistent with them being true? I tend to think a God would use our natural development and capabilities to bring us to Him, at least in part.

Posted on by geraldrussello · 1 Comment

Is Christianity Part of the National Heritage?

There is a fair amount of moral preening in this article from Slate on an ill-advised (at best) move by a city council in Coolidge, Arizona to allow Christian-only prayers at their meetings. The piece, by Dahlia Lithwick, is a little overheated. The resolution went nowhere. She acknowledges that prayers at council meetings are allowed under a 2014 Supreme Court decision. Town of Greece v. Galloway, so long as there is no intent to discriminate, and that the Coolidge City Council rescinded the resolution shortly after the 4-2 vote in favor (which in any event needed to be voted on again to pass). Not to mention that the council assured one member that if he didn’t like what he was hearing from another faith, he didn’t have to listen.

Lithwick thinks both the actual proposed Coolidge resolution and one that simply permitted religious groups within the town limits to offer prayers at council meetings are examples of religious “intolerance” (Lithwick calls the latter “sneaky and subversive” even though it is perfectly reasonable and constitutional to only allow those groups actually present in a town to offer prayers). This theocracy-under-every-bed approach is tiresome and implausible, without disagreeing that the council’s decision was not a good one.

What interests me here is that Lithwick and others (such as historian Kevin Kruse, who has written a very interesting book on the rise of the Religious Right) mocked the proponent of the resolution for saying that Christianity was “our heritage.” As a historical matter, I don’t think this is remotely debatable, and Lithwick has the losing side. Further, as a constitutional matter, there is voluminous evidence that the Founders were very much influenced by the Reformed Protestant tradition, which is reflected in the documents they wrote.

This topic came up during a recent Libertas conference I had the privilege of attending, and has deep roots. (Thomas Jefferson, for example, argued that Christianity did not form part of the “law of the land.”) Lithwick’s view dovetails with a good article by Stuart Banner on Christianity and the common law. Banner finds that the decline of the belief that “Christianity forms part of the common law” coincides with the rise of a notion that the law was made by judges and not simply reflective of underlying truths, be they religious or otherwise. He writes: “Law was a body of principles separate from other bodies of principles, not just in its source (the decisions of government officials), but in its field of application. Religious norms, even those universally subscribed to, did not qualify as ‘law,’ not just because they were not made by government officials, but also because they were not enforced by government officials.” This conception of law increased (unsurprisingly) the power of lawyers and judges, who now presided over an autonomous realm untouched by the beliefs of the people, yet somehow superior to it.

Holding that law and culture are not the same is different from believing that culture need not influence law. Lithwick’s position has its own history, one that is not self-evidently true (and, in light of the “clerisy” theme these posts have been developing, arguably not desirable as well).

Posted on by JCPW

Dispatches from Kabul: Warlords and Takeout

KabulU
Former CLR Fellow Jessica Wright ’14 recently moved to Kabul, Afghanistan, where she works with a team of local and international lawyers at Rosenstock Legal Services, a commercial law firm. In this series of dispatches from Kabul, she will share her insights on issues of law and religion in the context of practicing law in the Islamic Republic. The following personal narrative is an introduction to the series.

Mostly, I was exhausted. There was the packing and repacking, a sleepless night, the flight from Milan to Istanbul, and a four and a half hour layover in the dead of the night. When I arrived at the overcrowded international terminal at Atatürk International, a dark sense of dread came over me. I ordered a venti chai tea latte, bought two bags of Haribo Gold Bears, and sat in front of the lounge monitor watching GO TO GATE flash across the screen for destinations like Najaf, Sulaimaniyah, and Baghdad. When “impoverished, Taliban-infiltrated, suicide-bombed city” is all you have to associate with your destination, it’s hard to rally. KABUL–3:10–WAIT FOR GATE. I wasn’t overcome by the urge to buy a one-way ticket back to Chicago, but as the minutes ticked by slowly I became increasingly angry with myself for having made this decision in the first place.

I couldn’t quite will myself out of the lounge on time, so I ended up sprinting down the terminal to the gate where all but one anxious-looking passenger had been loaded onto the bus that would take us to the outer reaches of the airfield. I remember passing rows of shipping containers and other miscellaneous cargo and wondering if I hadn’t read the fine print well enough.

The flight was full of Westerners. Men with buzz cuts, prominent biceps, and army green t-shirts; tall bespectacled Dutch men with reporter notebooks; women wearing Western tunics and headscarves and speaking the language of project management. A beautiful Afghan girl with kind and vibrant eyes sat next to me. She looked very stylish in her elegant black tunic and hijab, and we struck up a conversation about Islamic dress. She asked me if this would be my first time in Afghanistan – pronounced in a lilting and graceful accent – and then enthusiastically told me all the things she loves about her country. Later, I fell asleep to her conversation with another Afghan woman, the singsong words bale, bale playing in my head. Dari, the Afghan version of Persian and one of the national languages of the country, is really beautiful.

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I woke in time to see the sun rising ahead of us in the east, and as we approached Kabul, the desert disappeared and the Hindu Kush came into view. I thought about Antoine de Saint-Exupéry’s Little Prince and his tiny asteroid, and about the surface of Mars and the moon. “Kabul might as well be outer space,” I whispered to myself. From high above, it looked as though you could be stuck forever in this place surrounded by a vast mountain Read more

Posted on by ddrakeman

The Value of the Humanities and Heterodoxy

Readers of the CLR Forum see every day how scholarship in the humanities and social sciences directly affects the laws and policies that govern our lives. That important perspective is not shared widely enough. On that score, two items of interest appeared last week.

First, TIME reported that “[m]ore than two dozen Japanese universities … will reduce or altogether eliminate their academic programs in the humanities and social sciences, following a dictum from Tokyo to focus on disciplines that ‘better meet society’s needs.'”

In tough times, policymakers tend to think of the academic disciplines outside the sciences as a luxury good, easily abandoned in favor of more practical pursuits. But, in fact, really good scholarship across the humanities and social sciences is necessary to help us try to figure out what kind of society we want to be, and what it will take for us to figure out how to work together to get there.

One reason for society’s lack of enthusiasm for the humanities and social sciences is that it tends to be politically monotonal. The best recent studies suggest that less than 5% of academics in these fields at research universities have right-of-center social and political views. Not surprisingly, this can lead to scholarship that downplays, misunderstands, or simply overlooks views widely held among the public and policymakers.

The Heterodox Academy, recently reported in The American Interest, looks like a very important effort to bring more balance into academic scholarship. A politically diverse group of scholars is setting out to bring a greater degree of viewpoint diversity to scholarship, especially in the social sciences. This effort should not only make scholarship more useful, but it will make it more intellectually invigorating, as well.

For what it’s worth, I have much more to say on these topics in a book coming out in just a few weeks called, Why We Need the Humanities.

Posted on by geraldrussello

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.