Peter Berkowitz

Bio: Peter Berkowitz is an academic researcher. The author has contributed to research in topics: International law & Politics. The author has an hindex of 3, co-authored 10 publications receiving 22 citations.

The Liberal Spirit in America

Abstract: I. Our liberalism NEVER HAS A people enjoyed a greater range of individual rights, or been more jealous of their freedoms, or been more convinced that the liberty they prize is good not only for themselves but also for other peoples than we in the United States today. The freest society in most respects that the world has ever seen has produced the world's most diverse society; the world's best army; the world's most organized, industrious, and productive economy; and a political order that to a remarkable degree contains the factions and divisions that have prevented so many other countries from innovating and solving collective problems. This represents the triumph in America of liberalism, a tradition of thought and politics stretching back at least to seventeenth-century England, whose fundamental moral premise is the natural freedom and equality of all and whose governing theme has been the securing of equal freedom in political life. Yet cause for anxiety comes from many quarters. Freedom in America has produced or permitted massive income inequalities. It has given rise to a popular culture that frequently descends into the cheap and salacious. It maintains a public school system that fails to teach many students the basics of reading and writing and arithmetic; and at higher levels of education, it breeds an academic culture that preaches the relativity of values and that cannot reach agreement on what a well-educated person ought to have learned by the time he or she graduates from college. It has contributed to a destabilizing erosion of the old rules, written and unwritten, that govern dating, sex, love, marriage, and family. It has fostered among opinion makers and intellectual elites a distrust that borders on contempt for religious belief. And it has fortified among the highly educated an uncritical faith in the coincidence of scientific progress and moral progress. To understand the challenge whole, it is first necessary to correct an unfortunate confusion of terms. In the United States, "liberal" commonly denotes the left wing of the Democratic Party. To be sure, as a result of bruising post-1960s political battles, many on the left have disavowed the term liberal, choosing instead the label "progressive," in fact a more apt designation for their outlook. Nevertheless, the term liberal retains a distinctive meaning, indeed a progressive one, in our political lexicon. It was not foreordained that "liberal" would become synonymous with progressive politics as it has in the United States. Witness the career of the term in Europe, where it has come to designate something much closer to libertarianism. Yet neither is the equation of liberalism with progressivism an accident, for there is a powerful progressive thrust inhering in the liberal tradition. When it arose in the seventeenth century, before it acquired its name, liberalism, particularly that of Locke, sought to limit the claims of religious authorities in politics and the claims of political authorities in religious matters. As these ideas took root, as religion receded from the center of politics (and as science and industry developed and markets spread), individual freedom acquired more space, more individuals began to enjoy its blessings, and power shifted to those who had long been denied it. When it came into its own in the nineteenth century, liberalism, particularly that of Mill, sought to limit the role in politics of status, wealth, and sex by assuring through the state formal equality. The result was to accelerate the pace at which power shifted to the people and to spread the blessings of freedom more equally. And when, in the United States in the last third of the twentieth century, it became synonymous with the left wing of the Democratic Party, liberalism aggressively sought to limit the role in politics of poverty, race, sex, old age, illness, and disability by guaranteeing to all individuals a certain minimum level of material goods and moral standing. …

Liberal Education, Then and Now

Abstract: I. Our university AN AUTO REPAIR shop in which mechanics and owners could not distinguish a wreck from a finely tuned car would soon go out of business. A hospital where doctors, nurses, and administrators were unable to recognize a healthy human being would present a grave menace to the public health. A ship whose captain and crew lacked navigation skills and were ignorant of their destination would spell doom for the cargo and passengers entrusted to their care. Yet at universities and colleges throughout the land, parents and students pay large sums of money for--and federal and state governments contribute sizeable tax exemptions to support--liberal education, despite administrators and faculty lacking a coherent idea about what constitutes an educated human being. To be sure, American higher education, or rather a part of it, is today the envy of the world, producing and maintaining research scientists of the highest caliber. But liberal education is another matter. Indeed, many professors in the humanities and social sciences proudly promulgate in their scholarship and courses doctrines that mock the very idea of a standard or measure defining an educated person and so legitimate the compassless curriculum over which they preside. In these circumstances, why should we not conclude that universities are betraying their mission? To be sure, universities and colleges put out plenty of glossy pamphlets containing high-minded statements touting the benefits of higher education. Aimed at prospective students, parents, and wealthy alumni, these publications celebrate a commitment to fostering diversity, developing an ethic of community service, and enhancing appreciation of cultures around the world. University publications also proclaim that graduates will have gained skills for success in an increasingly complex and globalized marketplace. Seldom, however, do institutions of higher education boast about how the curriculum cultivates the mind and refines judgment. This is not because universities are shy about the hard work they have put into curriculum design or because they have made a calculated decision to lure students and alumni dollars by focusing on the sexier side of the benefits conferred by higher education. It's because university curricula explicitly and effectively aimed at producing an educated person rarely exist. (1) Universities do provide a sort of structure for undergraduate education. Indeed, it can take years for advisors to master the intricacies of general curriculum requirements on the one hand and specific criteria established by individual departments and proliferating special majors and concentrations on the other. The Byzantine welter of required courses, bypass options, and substitutions that students confront may seem like an arbitrary and ramshackle construction. In large measure it is. At the same time, our compassless curriculum gives expression to a dominant intellectual opinion. And it reflects the gulf between the requirements of liberal education and the express interests of parents, donors, professors, and students. The dominant opinion proclaims that no shared set of ideas, no common body of knowledge, and no baseline set of values or virtues marking an educated human being exist. To be sure, the overwhelming majority of all American colleges adopt a general distribution requirement. (2) Usually this means that students must take a course or two of their choosing in the natural sciences, social sciences, and the humanities, with perhaps a dollop of fine arts thrown in for good measure. And all students must choose a major. Although departments of mathematics, engineering, and the natural sciences maintain a sense of sequence and rigor, students in the social sciences and humanities typically are required to take a smattering of courses in their major, which usually involves a choice of introductory classes and a potpourri of more specialized classes, topped off perhaps with a thesis on a topic of the student's choice. …

The Goldstone Report and International Law

Abstract: THE CONTROVERSY OVER the "Report of the United Nations Fact Finding Mission on the Gaza Conflict" (1) (September 15, 2009), more commonly known as the Goldstone Report, seems to have died down. But its larger significance has yet to be appreciated. For the most part, the controversy has swirled around the reliability of the Goldstone Report's factual findings and the validity of its legal findings concerning Operation Cast Lead, which Israel launched on December 27, 2008, and concluded on January 18, 2009. But another and more far-reaching issue, which should be of great significance to those who take seriously the claims of international law to govern the conduct of war, has scarcely been noticed. And that pertains to the disregarding of fundamental norms and principles of international law by the United Nations Human Rights Council (HRC), which authorized the Goldstone Mission; by the Mission members, who produced the Goldstone Report; and by the HRC and the United Nations General Assembly (of which the HRC is a subsidiary organ), which endorsed the report's recommendations. Their conduct combines an exaltation of, and disrespect for, international law. It is driven by an ambition to shift authority over critical judgments about the conduct of war from states to international institutions. Among the most serious political consequences of this shift is the impairment of the ability of liberal democracies to deal lawfully and effectively with the complex and multifarious threats presented by transnational terrorists. Notwithstanding a veneer of equal interest in the unlawful conduct of both Israel and the Palestinians, the Goldstone Report--informally named after the head of the UN Mission, Richard Goldstone, former judge of the Constitutional Court of South Africa and former prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda--overwhelmingly focused on allegations that in Operation Cast Lead Israel committed war crimes and crimes against humanity. The purpose of Israel's three-week operation was to substantially reduce the rocket and mortar fire that Hamas, long recognized by the United States and the European Union as a terrorist organization, had been unlawfully raining down upon civilian targets in southern Israel for eight years, and which Hamas had intensified after its bloody takeover of Gaza from the Palestinian Authority in 2007. While the Goldstone Report indicated that here and there Palestinian armed groups may have committed war crimes, it purported to find substantial evidence--based primarily on the testimony of Palestinians either affiliated with, or subject to, Hamas--that Israel had repeatedly violated international law by using disproportionate force. At its most incendiary, the Goldstone Report purported to find solid evidence that Israel had committed crimes against humanity--among the gravest breaches of international law--by implementing a deliberate policy of terrorizing Palestinian civilians, both by targeting civilian noncombatants and destroying civilian infrastructure. Israel has provided three major responses to the Goldstone Report. The most recent came from the Intelligence and Terrorism Information Center (ITIC), an Israeli NGO that works closely with the Israel Defense Forces (IDF). In March 2010, the ITIC published and posted online a 349-page study, "Hamas and the Terrorist Threat from the Gaza Strip: The Main Findings of the Goldstone Report Versus the Factual Findings." (2) Like the two previously published accounts by the Israeli government of the country's continuing investigations of allegations of unlawful conduct committed by its armed forces during the three weeks of Operation Cast Lead--"The Operation in Gaza: Factual and Legal Aspects" (3) (July 29, 2009), and "Gaza Operation Investigations: An Update" (4) (January 29, 2010)--it garnered next to no attention in the press, from international human rights organizations, from the HRC, or from the General Assembly. …

Leviathan Then and Now

Abstract: UNTIL RELATIVELY RECENTLY, students of politics and ideas generally regarded Thomas Hobbes's Leviathan (16 51) as the outstanding work of political philosophy in the English language. Over the past several decades, however, professors of political science and philosophy have largely relegated Hobbes's masterpiece to the back shelves. At best, they tend to view Leviathan as an historical artifact, an early and influential stepping stone on the way to the development of those Kantian-inspired theories--Rawlsian and Habermasian at the forefront--that aim to vindicate the rights-based, progressive welfare state and dominate academic teaching and research. This demotion of Hobbes's masterpiece is unwarranted and impedes understanding of Leviathan. The demotion rests on the assumption, common among today's scholars of political ideas, that after millennia of confusion and error they have at long last constructed the complete and adequate--or soon-to-be-complete and very nearly adequate--theoretical approach to politics. It also is grounded in their belief that the issues of immediate concern to them are alone of moral and political significance, while the issues that occupied thinkers of earlier generations are at best of antiquarian interest. Accordingly, if they turn to it at all, professors tend lazily to ask of Hobbes's Leviathan--as they lazily ask, if they turn to them at all, of other classic works of political philosophy--how it anticipated or failed to anticipate the contemporary agenda. An alternative, obscured by today's methodological doctrines and moral blinders, is to read Leviathan on its own terms, open to its assumptions and arguments and alive to the possibility that Hobbes's agenda is of interest in its own right. Of course, interest in Hobbes's agenda is not to deny Leviathan's contemporary relevance. To the contrary. To read Hobbes on his own terms is to discover a provocative rival to contemporary perspectives on morals and politics, one that challenges widely shared assumptions about the roots of our rights and calls into question common conclusions about the scope of political authority in a society based on the consent of the governed. At the same time, it is to encounter a complement to contemporary perspectives on the liberal state, one that offers a distinctive and powerful basis for a political order that conforms to reason and secures the conditions under which human beings with differing conceptions of the best life can pursue happiness as they each understand it. To be sure, what it means to read a thinker on his own terms is subject to dispute. Of the small number of scholars who continue to devote themselves to the serious study of Hobbes, a substantial proportion contend that priority should be given to understanding the historical context in which Hobbes lived and wrote. Despite their tendency to exaggerate it, they have a point. For example, one is likely to be baffled by the intellectual energy Hobbes devotes to the critique of religion in Parts I and IV of Leviathan and to his alternative derivation of the true principles of politics from biblical sources in Part III if one fails to appreciate that he lived in a deeply Protestant political culture, the governing beliefs of which he was forced to pay deference to even as he interpreted them innovatively and elaborated opinions about the natural world and human nature that undermined them. One cannot properly understand Hobbes's critique of Aristotle without being aware that his target was in many cases the decayed version of Aristotelianism--in Chapter XLVI Hobbes mockingly calls it "Aristotelity"--that had prevailed in English universities for centuries, rather than the actual doctrines of Aristotle's Ethics, Politics, and Metaphysics. And one will miss the mixture of bluntness and circumspection with which Hobbes writes about human nature, politics, and ultimate questions if one lacks knowledge of the dangers to which he was exposed during the English Civil War as a defender of the Crown who nevertheless antagonized both sides by criticizing divine-right monarchy as well as parliamentary supremacy. …

The Court, the Constitution, and the Culture of Freedom

Abstract: IT IS NOT CONTROVERSIAL to contend that in the United States, constitutional law serves as a decisive battleground in the struggle over freedom's moral and political meaning. It is another matter to assess the impact of the battleground on the battle, to clarify the current balance of power, and to anticipate the battles to come. By design, the American Constitution is the supreme law of the land. Because it is a liberal constitution, one whose first purpose is to protect individual freedom, the supreme law of the land avoids taking a stand on the supreme issues. It does not aim to instruct people on the virtues, or the content of happiness, or the path to salvation. That's not because it supposes that virtue is irrelevant, happiness has no content, or salvation is a delusion. Rather, the Constitution presupposes that the people, as individuals and through the various associations and groups they form, will pursue these goods. And it lays down a framework within which we, as a people, can maintain a society where each has the liberty to pursue, consistent with a like liberty for others, virtue, happiness, and salvation in the way each regards as fitting. This constitutional framework consists of the enumeration of government powers and the elaboration of individual rights. It establishes minimum requirements and imposes outer boundaries on state action and personal conduct while largely leaving substantive judgments about morals and policy to individuals and democratic politics. Accordingly, as Alexander Bickel dryly observed more than . years ago in The Least Dangerous Branch, to say of some law or action or institution that it is constitutional is not to offer very high praise. For the Constitution permits much--from those in as well as out of office--that is foolish, vulgar, and degrading. Yet the enshrinement in the supreme law of the land of a large latitude for the exercise of individual freedom has consequences. It cannot but give direction to our moral life, incite and inspire habits and hopes, inform our sense of what is possible and of what is necessary, and instruct our understanding of what we owe others and what we owe ourselves. To recognize the role of constitutional law in establishing a culture of freedom takes nothing away from the formative role played by economic life, popular entertainment and the arts, friendship and family, love and war, religious faith and faith in reason. Our opinions about freedom, as well as our capacities to enjoy its blessings and maintain its material and moral preconditions, are formed by many forces. The supreme law of the land, however, is of special interest. By establishing authoritative limits, by proclaiming, with the backing of the coercive power of the state, what is forbidden, what is permitted, and what is required, it creates comprehensive background conditions for, and sets a tone that reverberates throughout, all spheres of our lives. Between progress and preservation BY AND LARGE, since Marbury v. Madison (1803), when it settled the matter, the Supreme Court has been understood to have principal--though in our separation of powers system not exclusive or ultimate--responsibility under the Constitution for saying authoritatively what the supreme law of the land is. Yet most of the 80 to 90 formal written opinions the Court delivers each year involve technical issues which, when they are noticed at all by the public at large, do not excite much enthusiasm or cause much consternation beyond the confines of the parties involved. Nor do they have much discernible impact on how we experience or think about freedom. Of those cases that, because of the morally and politically fraught issues at stake, do capture the public's attention, a preponderance arise under the Fourteenth Amendment. And the most morally and politically fraught of these concern abortion, which involves a contest over the interpretation of the Fourteenth Amendment's due process clause, and affirmative action, which involves a contest over the interpretation of the Fourteenth Amendment's equal protection clause. …

Vulnerability in the Marketplace: Concepts, Caveats, and Possible Solutions

Abstract: Vulnerable consumers fail to understand their preferences and/or lack the knowledge, skills, or freedom to act on them. To protect them, some want to censor information, restrict choices, and mandate behaviors. One-fifth of the American public is functionally illiterate, K-12 performance is declining, and yet a substantial majority of American consumers (adolescents included) appear to be marketplace literate. Rather than curtail consumer prerogatives to protect a vulnerable minority, education reform focused on the values, knowledge, and skills necessary to create and navigate responsive markets is proposed. Reformed adult and K-12 education can refine, expand, and accelerate learners’ informal and experiential understanding of marketplace fundamentals. The aim is to significantly replace trial and error with a robust understanding of markets, markets habitually governed by social virtues. Evidence suggests that these aims can be better achieved via K-12 choice and should be the focus of adult basic educ...

Rethinking agency & responsibility in contemporary international political theory

Abstract: The core argument of this work is that the individualist conceptions of agency and responsibility inherent in the contemporary ethical structure of international relations are highly problematic, serve political purposes which are often unacknowledged, and have led to the establishment of an international institutional regime which is limited in the kind of justice it can bring to international affairs. Cosmopolitan liberalism has led to the privileging of the discourse of rights over that of responsibility, through its emphasis on legality and the role of the individual as the agent and subject of ethics; this has culminated in the establishment of the International Criminal Court (ICC). The ICC, described by its supporters as the missing link in human rights enforcement, is a result of changing conceptions of agency and responsibility beyond borders – normative discourse has moved from state to individual, from politics and ethics to law, and from peace to justice, but I argue that it has not yet moved beyond the dichotomy of cosmopolitan and communitarian thinking. I contend that neither of these two positions can offer us a satisfactory way forward, so new thinking is required. The core of the thesis therefore explores alternative views of agency and responsibility – concepts which are central to international political theory, but not systematically theorized within the discipline. I outline models of agency as sociality and responsibility as a social practice, arguing that these models both better describe the way we talk about and experience our social lives, and also offer significant possibilities to broaden the scope of international justice and enable human flourishing. I end the research by considering the implications of these more nuanced accounts of agency and responsibility for ongoing theorising and practice.

Tracking Global Corporate Citizenship: Some Reflections on 'Lovesick' Companies.

Abstract: This paper provides an outline of some of the issues I am dealing with in connection to a research project being undertaken on Global Corporate Citizenship (GCC). This research is in its early stages so what is provided here is preliminary and designed to raise rather more issues than it solves. In particular, I am concerned to deal with what it might mean for companies to be described, or to describe themselves, as Global Corporate Citizens. In the general literature on corporate responsibility there is a move away from companies being described, or describing themselves, as Corporately Socially Responsible (CSR) to them re-describing themselves as Global Corporate Citizens (GCC). I want to ask what is involved in this (self)description as 'citizens'? Can citizenship be applied first to companies and then extended into the global arena in which they operate? When looking at the actual practices of companies that claim to be either simply socially responsible or more recently corporate citizens, there is not much difference between them. Much the same 'content', as it were, in terms of the claims to what they are doing or should do, adheres under both titles. So is it merely a matter of words? Does it make any difference that on the one had they claim to be socially responsible or on the other to be global citizens? I will argue that this is a very significant change in terminology that is having, and will continue to have, significant affects that need to be analysed and appreciated. To explore these implications, the following analysis situates GCC in a wider framework of the progressive juridicalization and constitutionalization of the international arena more generally.