In Documents, Other

Dear Lara Khaldi and Yazan Khalili,

Being present yesterday afternoon during the performance at the Prince Claus Foundation in Amsterdam, we listened to different stories being the heart and mind of your theatre in Jenin, Palestine.

Let me add a story that took place during the first night of philosophy in Felix Meritis in Amsterdam, at the same time as the attack by the Israeli army on the refugee camp in Jenin April 6, 2002. It reveals the never-ending debate about power and justice, and its interrelationship, in this case between Noam Chomsky and Michel Foucault.

After viewing the debate, I asked the public the question:

How do you think the Palestinians would answer the question about power and justice?

With kind regards,

Fons Elders


The First Night of Philosophy

April 6, 2002 Felix Meritis, Amsterdam


A story by Fons Elders

For Freedom, Theatre, and the Oppressed  – Jenin, Palestine


The evening of April 6, 2002 I drove by car to Amsterdam listening to the BBC that reported about an attack by the Israeli army on the refugee camp in Jenin.

That evening happened to be the first Night of Philosophy – the beginning of an event that continues each year in April until today.

The organization asked me to comment that night on the debate between Noam Chomsky and Michel Foucault that took place in 1971. The lecture room in Felix Meritis was filled with people. I entered the place having in mind the horror stories about the attacks that were going on simultaneously in Jenin.

These were the sentences the audience got to hear:

Elders: Well, perhaps it would be interesting to delve a little deeper into this problem of strategy. So, for example in the case of Holland, we had something like a population census. One was obliged to answer questions on official forms. You would call it civil disobedience if one refused to fill in the forms?

Chomsky: Right. I would be a little bit careful about that, because, going back to a very important point that Mr. Foucault made, one does not necessarily allow the state to define what is legal. Now the state has the power to enforce a certain concept of what is legal, but power doesn’t imply justice or even correctness, so that the state may define something as civil disobedience and may be wrong in doing so. For example, in the United States the state defines it as civil disobedience to, let’s say, derail an ammunition train that’s going to Vietnam; and the state is wrong in defining that as civil disobedience, because it’s legal and proper and should be done. It’s proper to carry out actions that will prevent the criminal acts of the state, just as it is proper to violate a traffic ordinance in order to prevent a murder. If I had stopped my car in front of a traffic light which was red, and then I drove through the red traffic light to prevent somebody from, let’s say, machine-gunning a group of people, of course that’s not a violation of law, it’s an appropriate and proper action; no sane judge would convict you for such an action. Similarly, a good deal of what the state authorities define as civil disobedience is not really civil disobedience: in fact, it’s legal, obligatory behavior in violation of the commands of the state, which may or may not be legal commands. So one has to be rather careful about calling things illegal, I think.

Foucault: Yes, but here I would like to ask you a question. When, in the United States, you commit a clearly illegal act…

Chomsky: …which I regard as illegal, not just the state.

Foucault: No, no, well, the state’s…

Chomsky: …that the state regards as illegal…

Foucault: …that the state considers as illegal. Are you committing this act in virtue of an ideal justice, or because the class struggle makes it useful and necessary ? Do you refer to ideal justice, that’s my problem.

Chomsky: Again, very often when I do something which the state regards as illegal, I regard it as legal: that is, I regard the state as criminal. But in some instances that’s not true. Let me be quite concrete about it and move from the area of class war to imperialist war, where the situation is somewhat clearer and easier. Take international law, a very weak instrument as we know, but nevertheless one that incorporates some very interesting principles. Well, international law, in many respects, is the instrument of the powerful: it is a creation of states and their representatives. In developing the presently existing body of international law, there was no participation by mass movements of peasants. The structure of international law reflects that fact; that is, international law permits much too wide a range of forceful intervention in support of existing power structures that define themselves as states against the interests of masses of people who happen to be organized in opposition to states. But, in fact, international law is not solely of that kind. And in fact there are interesting elements of international law, for example, embedded in the principles and the United Nations Charter, which permit, in fact, I believe, require the citizen to act against his own state in ways which the state will falsely regard as criminal. Nevertheless, he’s acting legally, because international law also happens to prohibit the threat or use of force in international affairs, except under some very narrow circumstances, of which, for example, the war in is not one. This means that in the particular case of the Vietnam War, which interests me most, the American state is acting in a criminal capacity. And the people have the right to stop criminals from committing murder. Just because the criminal happens to call your action illegal when you try to stop him, it doesn’t mean it is illegal. A perfectly clear case of that is the present case of the Pentagon Papers in the United States, which, I suppose, you know about. Reduced to its essentials and forgetting legalisms, what is happening is that the state is trying to prosecute people for exposing its crimes. That’s what it amounts to.

Foucault: So it is in the name of a purer justice that you criticize the functioning of justice. It is important for me to know this because we currently have in France a debate on the issue of justice and about the institution of popular tribunal – you know the issue. And a certain number of people, like Sartre for example, think that today in order to critique the penal system in France, or to critique police practices – of the way the police behaves – we must create a kind of tribunal which in the name of an ideal justice, of a superior justice, of a generally humane justice, will condemn the practice of both French judges and French policemen. Then there is another group of people with whom I feel, well, with whom I work, who say no, we should not do that because when you refer to ideal justice which the tribunal is supposed to implement, you actually refer to a certain number of ideas of justice which were formed in our time, by a certain group of individuals who are themselves in spite of everything either directly or indirectly the product of the society in which we find ourselves. We must attack the ways in which justice is practiced, we must attack the police and their practices, but in terms of war and not in terms of justice.

Chomsky: Yeah, but surely you believe that your role in the war is a just role, that you are fighting a just war, to bring in a concept from another domain. And that, I think, is important. If you thought that you were fighting an unjust war, you couldn’t follow that line of reasoning. I would like to slightly reformulate what you said. It seems to me that the difference isn’t between legality and ideal justice; it’s rather between legality and better justice. Now this better system will certainly have its defects. But if one compares the better system with the existing system, and not being confused into thinking that our better system is the ideal system, we can then argue as follows: The concept of legality and the concept of justice are not identical; they’re not entirely distinct either. Insofar as legality incorporates justice in this sense of better justice, referring to a better society, then we should follow and obey the law, and force the state to obey the law and force the great corporations to obey the law, and force the police to obey the law, if we have the power to do so. Of course, in those areas where the legal system happens to represent not better justice, but rather the techniques of oppression that have been codified in a particular autocratic system, well, then a reasonable human being should disregard and oppose them, at least in principle; he may not, for some reason, do it in fact.

Foucault: I wanted simply to reply to your first sentence, in which you said that if you didn’t consider the war you make against the police to be just, you wouldn’t make it. Well, I would reply to you a little in terms of Spinoza and say that the proletariat doesn’t wage war against the ruling class because it considers such a war to be just. The proletariat wages war against the ruling class because, for the first time in history, it wants to take power. And it is because it wants to take over power from the ruling class that it considers such a war to be just. Chomsky: Yeah, I don’t agree.

Foucault: One makes war to win, not because it is just.

Chomsky: I don’t, personally, agree with that. For example, if I could convince myself that attainment of power by the proletariat would lead to a terrorist police state, in which freedom and dignity and decent human relations would be destroyed, then I wouldn’t want the proletariat to take power. In fact the only reason for wanting any such thing, I believe, is because one thinks, rightly or wrongly, that some fundamental human values will be achieved by that transfer of power.

Foucault: Here is what I would respond. When the proletariat will take power, it may be quite possible that the proletariat will exert towards the classes over which it has just triumphed, a violent, dictatorial, and even bloody power. I can’t see what objection somebody could make to this. But then you could still ask me about the case in which the proletariat exerts bloody, tyrannical, and unjust power towards itself. Then I would say that this could only occur if the proletariat hadn’t really taken power, but that a class outside the proletariat, or a group of people inside the proletariat, a bureaucracy, or what’s left of petite bourgeoisie had taken power instead.

Chomsky: Well, I’m not at all satisfied with that theory of revolution for a lot of reasons, historical and others. But even if one were to accept it for the sake of argument, still that theory maintains that it is proper for the proletariat to take power and exercise it in a violent and bloody and unjust fashion, because it is claimed, and in my opinion falsely, that that will lead to a more just society, in which the state will wither away, in which the proletariat will be a universal class and so on and so forth. If it weren’t for that future justification, the concept of a violent and bloody dictatorship of the proletariat would certainly be unjust. For example, I am not a committed pacifist. I would not hold that it is under all imaginable circumstances wrong to use violence, even though use of violence is in some sense unjust. I believe that one has to estimate relative justices. But the use of violence and the creation of some degree of injustice can only itself be justified on the basis of the claim and the assessment – which always ought to be undertaken very, very seriously and with a good deal of skepticism that this violence is being exercised because a more just result is going to be achieved. If it does not have that grounding, it is really totally immoral, in my opinion.

Foucault: I don’t think that as far as the aim which the proletariat proposes for itself in leading a class struggle is concerned, it would be sufficient to say that it is a greater justice. What the proletariat wants to achieve by expelling the class which is at present in power and by taking over power itself, is precisely the suppression of class power in general.

Chomsky: Okay, but that’s the further justification.

Foucault: That is the justification, but one doesn’t speak in terms of justice but in terms of power.

Chomsky: But it is in terms of justice; it’s because the end that will be achieved is claimed as a just one. No Leninist or whatever you like would dare to say ‘We, the proletariat, have a right to take power, and then throw everyone else into crematoria.’ If that were the consequence of the proletariat taking power, of course it would not be appropriate. The idea is – and for the reasons I mentioned I’m sceptical about it – that a period of violent dictatorship, or perhaps violent and bloody dictatorship, is justified because that will mean the submergence and termination of class oppression, a proper end to achieve in human life.

Foucault: But it seems to me that, in any case, the notion of justice itself functions within the society of classes as a claim made by the oppressed class and as justification for it by the oppressive class. And in a classless society, I am not sure that we would still need to use this notion of justice.

From: Philosophers in Debate





Fons Elders moderator and commentator


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