Arms and rights: Rawls, Habermas and Bobbio in an age of war
New Left Review, vol. 31, 2005, pp. 5–40
Abstract
Learning how to recognize and anticipate the legal risks associated with student affairs practice is a crucial skill all successful administrators must develop. This can be done by developing a sense for scanning the broad legal environment and being aware of legal issues in other parts of the education enterprise. Good professionals make a considerable effort to remain current in their career fields. Professional associations assist their members in this task by developing training and professional development programs that address the critical skills that professionals need to do their jobs. In higher education and student affairs, many practitioners acknowledge the importance of knowing how the law affects what they do. Constitutional law affects what kinds of rules and regulations public institutions promulgate. Contract law affects the type of business relationship administrators have with students and other constituents. Tort law affects how managers maintain facilities and supervise student events. As a result, professional associations have been created to focus attention solely on legal issues in higher education (e.g., Education Law Association and the Association for Interdisciplinary Initiatives in Higher Education Law and Policy), programs on a wide variety of legal topics appear on almost every national conference schedule, many professional associations devote part of their Web sites to law and legislation (e.g., American College Personnel Association, National Association of Student Personnel Administrators, and the Association for Student Judicial Affairs), and private companies publish newsletters designed to inform their readers about the latest court rulings (e.g., The College Student and the Courts by Gehring and Letzring, Synfax weekly report by Pavela). Some of these resources examine events that may be several years old since litigation takes time and initial decisions may be appealed. Many of the authors of these publications restate the facts of the particular case and give some guidance on appropriate administrative practice. These resources, however, may not always be able to identify what administrators might face on their own campuses in the near future or define decision-making processes that might help administrators avoid legal pitfalls. The purpose of this paper is to identify two important mechanisms that college administrators can use to more actively anticipate the legal issues that may occur on their own campuses. First, practitioners should scan the broad legal environment. Secondly, they should be aware of legal issues in other parts of the education enterprise. Anticipating
Quotes from this work
In The Law of Peoples, this circular knowledge resurfaces as the ‘political culture’ of a liberal society. But just because such a culture inevitably varies from nation to nation, the route to any simple universalization of the principles of justice is barred. States, not individuals, have to be contracting parties at a global level, since there is no commonality between the political cultures that inspire the citizens of each. More than this: it is precisely the differences between political cultures which explain the socio-economic inequality that divides them. “The causes of the wealth of a people and the forms it takes lie in their political culture and in the religious, philosophical and moral traditions that support the basic structure of their political institutions.” Prosperous nations owe their success to the diligence fostered by industrious traditions; lacking the same, laggards have only themselves to blame if they are less prosperous. Thus Rawls, while insisting that there is a right to emigration from ‘burdened’ societies, rejects any comparable right to immigration into liberal societies, since that would only reward the feckless, who cannot look after their own property. Such peoples ‘cannot make up for their irresponsibility in caring for their land and its natural resources’, he argues, ‘by migrating into other people’s territory without their consent’.
Decorating the cover of the work that contains these reflections is a blurred representation, swathed in a pale nimbus of gold, of a statue of Abraham Lincoln. The nationalist icon is appropriate. That the United States owes its own existence to the violent dispossession of native peoples on just the grounds—their inability to make ‘responsible’ use of its land or resources—alleged by Rawls for refusal of redistribution of opportunity or wealth beyond its borders today, never seems to have occurred to him. The Founders who presided over these clearances, and those who followed, are accorded a customary reverence in his late writings. Lincoln, however, held a special position in his pantheon, as /The Law of Peoples—/where he is hailed as an exemplar of the ‘wisdom, strength and courage’ of statesmen who, unlike Bismarck, ‘guide their people in turbulent and dangerous times’—makes clear, and colleagues have since testified. The abolition of slavery clearly loomed large in Rawls’s admiration for him. Maryland was one of the slave states that rallied to the North at the outbreak of the Civil War, and it would still have been highly segegrated in Rawls’s youth. But Lincoln, of course, did not fight the Civil War to free slaves, whose emancipation was an instrumental by-blow of the struggle. He waged it to preserve the Union, a standard nationalist objective. The cost in lives of securing the territorial integrity of the nation—600,000 dead—was far higher than all Bismarck’s wars combined. A generation later, emancipation was achieved in Brazil with scarcely any bloodshed. Official histories, rather than philosophers, exist to furnish mystiques of those who forged the nation. Rawls’s style of patriotism sets him apart from Kant. The Law of Peoples, as he explained, is not a cosmopolitan view.