A critique of Jim Aune's rhetoric, legal argumentation, and historical materialism.
--Chief Justice Roberts in Kiobel, citing Justice Story (Kiobel, 2013, p. 12). (1)
In December of 1792, America's first Secretary of State, Thomas Jefferson, was dealing with some thorny foreign policy problems. He was hearing complaints that slave catchers from the state of Georgia were being accused by the Spanish of trespassing into Spanish Florida so they could recapture or kidnap slaves. At the same time, the minister of France was lamenting the fact that an American crew aboard some vessel, moored in a harbor of St. Domingo, was enticing Africans on board their ship under pretext of employment (Simpson, 2013). The thriving slave trade created no shortage of domestic and international conundrums for the fledging American nation, and now Jefferson combed through some of the newly minted U.S. constitutional texts to see if there was any rule of law that could be applied to ameliorate the situation.
Jefferson quickly turned his attention to a part of the Judiciary Act of 1789, known as the Alien Tort Statute (ATS), (2) that conferred federal jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (3) In spite of the fact that the troubles with the slave traders had nothing to do with any ambassador, Jefferson determined that there was nothing wrong with "enlarging the jurisdiction of the courts," so that they could sustain "indictments and informations on the public behalf, for offences against the law of nations" (quoted in Simpson, 2013, para. 6). For the next several years, American courts served as the venue for a few foreign suits about piracy that were based on the Alien Tort Statute jurisdiction, but after that the ATS became a dormant fragment for almost 200 years.
Beginning in the early 1980s, all of this changed when entrepreneurial lawyers resurrected the tersely worded provisions of the ATS and used them for human rights activism in a variety of contexts. Lawsuits sprang up like weeds as the U.S. federal courts were now being asked to rule on cases that occurred overseas, even in situations where no U.S. citizen or American corporation was directly involved in specifically identifiable conduct (Ku & Yoo, 2013). For more than three decades, the ATS was being interpreted in ways that allowed foreign victims to sue in U.S. courts for internationally recognized human rights violations such as torture, genocide, and crimes against humanity (Bazyler & Green, 2012, p. 25).
Large oil companies, that had what lawyers call "deep pockets," were some of the favorite targets of all of this burgeoning litigation. Foreigners who happened to live in the United States were now suing other foreigners in American courts for alleged violations of international laws that took place overseas. For example, in 1996, the oil company, Unocal, was sued for allegedly aiding and abetting abuses perpetrated by the Myanmar military while constructing a natural gas pipeline, and subsequent ATS cases included civil actions on behalf of children and adults who worked on rubber plantations in Liberia for Bridgestone-Firestone, families of pro-union workers killed by Colombian paramilitaries that supposedly had links to Chiquita, and plaintiffs who tried to sue because of the trafficking of children into Cote d'Ivoire for work on cocoa plantations (Bisom-Rapp, 2013, para. 4). Critics of all of this judicial activism wondered whether the "Delphic ATS" was being read by human rights reformers in ways that had "little or nothing to do with the United States" (Neuborne, 2013, para. 2).
As one might imagine, these various usages of the ATS brought divisive federal district and appellate court decisions in the wake of all of this activism, and in April of 2013, Chief Justice Roberts and the rest of the U.S. Supreme Court decided the case of Kiobel v. Royal Dutch Petroleum. This was a case that was brought by Nigerian refugees who were suing Shell Oil Company, and the lawsuit argued that Dutch and United Kingdom subsidiaries of Shell had helped the Nigerian military systematically kill and torture environmental activists during the 1990s. After a federal appellate court determined that corporations could not be liable for human rights abuses overseas, the plaintiffs sought U. S. Supreme Court review, and on February 28, 2012 members of the Supreme Court heard oral arguments on the question of whether corporations were immune from tort liability for international human rights violations (The Center for Justice and Accountability, 2013, para. 1).
The viral circulation on the internet of the various majority and concurring opinions in Kiobel, corporate commentaries on the justices' legal reasoning in this case, and academic responses to the slip opinions generated heated controversies around the world as various audiences took up the question of whether the ATS conferred jurisdiction over transnational corporations who were accused of perpetrating human rights violations. Did the advent of this case really mean that American judges could no longer take "it upon themselves to right the world's wrongs," (Kontorovich, 2013, para. 1) and did this signal that liberal notions of "universal jurisdiction" could no longer serve as ideographs (McGee, 1980) for all types of human rights activities?
As we looked back on the corpus of work that has been bequeathed to us as a part of Professor Jim Aune's legacy, we became convinced that the public and legal disputation that is taking place over the Kiobel case provided us with the perfect type of discursive fragments that would serve as rhetorical vehicles for our critical engagement with Aune's theoretical and critical work. These ATS debates touch on so many topics that are related to our remembrances of Aune's passionate interests--his studies of ethics and social activism, his surveys of free markets (1994), and his critiques of notions of "economic correctness" (Aune, 2001). He also enjoyed dissecting and analyzing U.S. Supreme Court cases (especially legal decisions focusing on workers' rights) (Aune, 1985), the relationships between law and rhetoric (Aune, 1996, 1998), American politics (Aune, 2003b), and his long-lasting interest in the nature, benefits, and limits of assorted materialist positions (Aune, 1994, 2003a).
In an essay that he wrote for Williams' and Hazen's Argumentation Theory and the Rhetoric of Assent, Aune (1990) commented on the benefits that came from avoiding dogmatism, the study of the repression of rhetoric in some Marxist theorizing, and the need to study "public argumentation in Marxist terms" (p. 159). He was an eclectic scholar who loved studying the impish ways that rhetorical twists and turns made a mess of all types of legal, economic, and cultural faiths and determinisms, and he enjoyed studying both elite and vernacular ideologies that touched on everything from witchcraft to Supreme Court decision-making. He once described himself as "an old-fashioned socialist or social democrat," someone who respected the work of political heroes like Senator Henry Jackson. While he had many liberal and radical friends in communication studies, he was unabashedly "anti-Communist and pro-American" (Aune, 2002, p. 231). As he jokingly wrote some 17 years before his untimely death:
My advanced age appears to have landed me in a contradictory cultural location in which my preferences for opera over grunge, Trollope over cyberpunk, Rosa Luxemburg over Judith Butler, and Brooks Brothers suits over postmodern black are of a piece with my belief in democratic socialism. (Aune, 1996, p. 89)
A progressive at heart, he refused to believe that either Platonic elitism or agnostic deconstruction offered the practical or pedagogical solutions that were needed to achieve a more equitable society.
With this in mind, we comment on some of Professor Aune's theoretical and pragmatic insights as we grapple with his views on a "historical materialist theory" (Aune, 2003a), and we extend some of his work as we evaluate and analyze the public and legal argumentation that has swirled around the recent Kiobel case. While we will not always agree with all of Aune's assessments of individual jurists, academic scholarship, or neo-Marxist interpretations, (4) we nevertheless believe that many of his rhetorical viewpoints regarding American jurisprudence have heuristic value, and they help us demystify a great deal of what passes for scientific, objective, and a rhetorical legal discourse (see Wetlaufer, 1990). We are convinced that our own historical materialist evaluation of the Kiobel case reveals many of the hidden material and structure features of current U.S. legal decision-making that are papered over and obfuscated in more formalistic ways of talking about domestic American tort litigation and international human rights in ATS contexts. As Aune (1996) once noted in his study of some of Judge Posner's pragmatic argumentation style, sometimes scholars need to go beyond the study of "utility-functions" as they analyze jurisprudential texts, "rhetoric, law, ethics, and politics" (p. 669). We therefore hope to provide the type of critical historical critique that he--and Michael McGee (1980) before him-believed was missing from contemporary communications studies (see Aune, 2003).
Professor Aune loved to study all types of personal, technical, and public contradictions, and he had this iconoclastic way of critiquing all types of scholastic work-regardless of one's political leanings. In the interests of engaging in the same type of playful--and yet serious--argumentative sparring that was the hallmark of Aune's incisive analytic style, we will attempt to point out some of the contradictions and tensions that we believe appeared in Aune's own work, and we will be juxtaposing those insights with our historical materialist critique of the Kiobel debates.
To accomplish these tasks, the rest of our essay has been divided into four segments. First, we offer a basic overview of Professor's Aune's work on historical materialism, drawing from our readings of materials that he wrote between 1985 and 2012. In that portion of the essay we provide a reading of Aune's interpretations of social democracy and critical historical materialism. The second part of the essay then shifts our attention to the current debates that are taking place over the Kiobel decision, and there we outline how non-materialists who defend the decision are crafting romantic rhetorics that underscore the importance of "judicial restraint" and the need to have U.S. federal courts avoid unnecessary entanglements in foreign affairs. The third segment provides readers with an alternative reading of the Kiobel debates, and there we draw from Professor Aune's work as we recontextualize these debates about the Alien Tort Statute so that readers can see that structural and material issues that are often elided in more formalistic analyses of these cases. Finally, in the conclusion, we invite argumentation scholars to take up the question of what still needs to be done in the theoretical and critical areas of materialist analysis, and we explain some of the unintended argumentative consequences that might be experienced in the aftermath of the Kiobel decision.
AUNE'S STUDIES OF SOCIAL DEMOCRACY AND CRITICAL HISTORICAL MATERIALISM
Aune (2002) once described himself as a "socialist or social democrat" (p. 231). As a self-proclaimed Marxist and rhetorical scholar, Aune believed that the Marxist and rhetorical traditions overlapped and informed each other in productive ways. He noticed that Karl Marx seemed to have been "silent" about the role that rhetoric should play in class struggles, yet he was also convinced that most rhetoricians who called themselves ideological scholars were somehow finding ways of writing without incorporating some key Marxist ideas. Aune (1990) was intrigued by the fact that the term "ideology" had "attained quasi-canonical status in rhetorical criticism," but he worried that this canonical status had been achieved while ignoring the issues of class that Marx was passionate about (p. 158). With an eye focused on the pedagogical benefits that might come from a more sustained application of Marxist work, Aune (1990) had this to say about the potential interanimation of rhetorical studies and Marxist studies:
What Marxism has taught us, in admittedly flawed ways, is that human beings have the potential to build a heroic society. What students of rhetoric and communication can give Marxism is a more humane way of bridging the critique of ideology with political action. The ultimate point is that audiences, when presented with the contradictions inherent in their social systems, have a choice about the ideological narratives to which they will subscribe or which they will create, (p. 172)
While Aune's work often tried to take into account the struggles of workers and the need to keep in mind class differences, he did not always follow the more deterministic pathways of Marx's social scientific thinking.
Aune's humanistic approach, that melded together Marxist theory and rhetorical theory, did focus attention on both the symbolic and materialist dimensions of key rhetorical situations. Like Marx before him, he was convinced that economic factors played a key role in the formation of competing and contradictory ideologies, and he viewed the critic as a type of facilitator who kept her/his eye on the relational interactions, the structures, and struggles that constituted a rhetorical space for potential change (Aune, 1996, p. 91).
Unlike some Marxists, who viewed rhetorics and superstructures as epiphenomenal materials that only hid the base, material conditions of economic disparities and power of the elites and the bourgeois, he did not see the rationale behind separating rhetoric and Marxism. In fact, he believed that using Marxist ideas in combination with rhetorical ones could avoid dogmas and determinisms while producing pragmatic benefits for those interested in substantive social justice.
Other reviewers who have reviewed some of Aune's work on capitalism and the free market have reached similar conclusions. In his review of Aune's Selling the Free Market, Houck (2002) insightfully observed that at various times Aune seemed to be both an "optimist and a pessimist," and Aune's "commitment to liberty" was linked to his enthusiasm "about the United States as a haven of liberty and equal opportunity" (p. 183). It would be this type of humanist faith in American opportunities that often drove Aune to write and talk "about rhetoric, about economics, and about their common points of intersection in our sociopolitical present and future" (Houck, 2002, p. 183). What made Aune's work so unique were the ways that Aune configured economic experts and others as rhetors who were trying to influence people as they promoted various ways of thinking the free market or occasional governmental intervention. As Houck (2002) explained in his review, "Aune begins by framing the battle over economic policy as fundamentally a battle of rhetorical skills--and who will carry the day with the public" (p. 183). From our vantage point, what Aune was trying to illustrate was the role that class ideologies played in both the discourse of laborers and those who advanced theories about that labor.
Aune used his own brand of neo-Marxist analysis as a springboard from which to launch what he called "historical materialism." Concerned with real-world issues, Aune's works were often "written from the honest perspective of an embodied, material person with real concerns" (Houck, 2002, p. 186). This involved a study of how workers and others talked about liberty, social justice, and rhetoric, and how they actually lived their lives based on those ideas.
We would argue that a review of Aune's work shows that he was often concerned with three key dimensions of any rhetorical situation when he wrote about his historical materialism-history, materiality, and ideology. This explains why he wrote in Rhetoric and Marxism that he was more interested in "advancing a persuasive argument for the cultural studies" of the "political" than just studying popular cultural or literary texts (Sells & Jaros, 1996, p. 85). We therefore would like to briefly explain what Aune tried to achieve by focusing on the historical, material, and ideological dimensions of his critical historical materialism.
Aune and the Historical Dimensions of Historical Materialism
Aune sometimes made the generalization that many postmodern studies were influencing generations without paying enough attention to historical inquiry. He did not see this as merely a manifestation of some theoretical problem or a lack that came from gatekeeping in academic disciplines. He worried that if rhetorical scholars and others did not take the time to study history, than this would in turn exacerbate the problems for those who were interested in fair labor practices and social mobility. If our "students' sense of history erodes still further," warned Aune (1987), then "the gap between elite discourse and popular understanding widens" (p. 69). The study of historical forces--especially historical studies of class struggles and histories associated with economic development schemes--fascinated him throughout his career, and we are convinced that his melding of rhetoric and Marxism was meant to provide an opportunity for like-minded social democrats.
In the same ways that Marx once wrote about the trials and tribulations of Irish farmers during the famine or the Welsh coal miners who toiled away for the British empire, Aune tinkered with the idea that fashionable academic ideas may also be ideologies that can mask material realities, and he commented on how there was a downside to all of the academic infatuation with postmodern ideas that he witnessed during the late 1980s. He averred that many postmodernists had abandoned, or denigrated, historical research, and this was bothersome because historical knowledge was a prerequisite for meaningful rhetorical studies. As Aune (1987) explained, "[Rhetoricians love those texts which are so despised by the rest of the academy, with the possible exception of those historians who strip mine them for larger purposes" (p. 70). For example, Aune (1996) enjoyed decoding and demystifying both the majority and dissenting opinions in the famous Lochner case, where jurists seemed to be using the Supreme Court as a forum for producing rhetorically powerful texts in debates about New York state regulation of bakers' "property" rights at the beginning of the 20th century.
At the same time, Aune (1987) was emphatic that the postmodernist's neglect of history can have grave material consequences. He explained that his interpretation of Marx should be "read as more than just another critique of Marxism," but rather should be viewed as a "warning," and he surmised:
If workers in the north of England and in the industrial and agricultural heartland of the United States are denied property, secure families, and stable mediating institutions such as unions, then they will become that audience of which Marx dreamed. Or, more fearfully, they will await, having been deprived of a history to name him, a new, doubtless very different, Louis Bonaparte. (Aune, 1987, p. 74)
This is an intriguing passage, because it explicates just how the pedagogical study of history is more than just a humanist endeavor that helps provide a well-rounded, liberal arts education. Aune is treating the historical aspect of his historical materialism as a vital element that societies need in their social struggles for a better world. One key question, of course, is how any of these insights helps with praxis.
Aune and the Importance of Materiality
One of the key issues for those who study Aune's version of "historical materialist" involves the question of how an argumentation critic brings together theory and practice. Aune (1987) went so far as to define rhetoric as a form of mediation "between theory and practice" (p. 69) that took place through practical activity, and he argued that it is only through studies of the material world that we can gain any appreciation of the heuristic value of theory. As Aune (1987) explained, "much 'advanced' rhetorical theory does not start with practice" (p. 70), and he viewed this as a problem because it led to solipsistic and logocentric studies that were detached from the real world problems of those who struggled for social change.
Instead, Aune (2003a) advocated for a "materialist understanding of how discourse functions as power" (p. 2). What he meant by this was that critics were obliged to find the ways that discourse had material consequences, something that Marx himself was "dangerously unselfconscious about" (Aune, 1987, p. 69). What seemed to have bothered Aune were the ways that Marx seemed to be maintaining a rigid theoretical line between the core, material lives of workers that were related to their economic conditions, and the superstructure that treated ideology and rhetoric as epiphenomenal concerns.
Aune's melding of Marxist theories and rhetorical traditions impacted the perspectival nature of his historical materialist studies. For example, his study of rhetoric informed the way he wrote about "the study of the realm of division" (p. 9), and, drawing from Kenneth Burke's work, he concluded that praxis involved the study of the "construction of identifications, themselves rooted in the properties (and property) of persons, groups, and objects" (Aune, 2003, p. 9). Drawing from Marxism's focus on the struggle over property and other materialist issues, Aune reviewed these same issues and texts and showed how these were also rhetorical issues.
Aune and Ideology
As far as Aune was concerned, the study of history and materiality were always inextricably linked to the studies of ideologies. Aune (2001) argued that the purpose of rhetorical criticism was "to identify the contradictions in an ideology and thus show opponents of that ideology effective ways to target arguments" (pp. 121-122). Like Marx before him, Aune was interested in lifting veils of ignorance, but his own particular take on historical materialism highlighted the didactic benefits that came from learning about these ideological forces.
Given the fact that ideology played such a significant role in much of his work, it should come as no surprise that Aune credited McGee, in addition to Marx, for his interest in the concept of ideology. Aune (2003) explained that his "historical materialist" approach was his "approach to the rhetorical criticism of ideology" (p. 16). One did this "not just to analyze the world, but to change it" (Aune, 2003, p. 17). Aune's interest in ideology could not be separated from his understanding of materiality; to him they were intertwined.
Aune's constant engagement with "real life" as he comingled theory and practice allowed him to see the world differently, and some of these ideas may not resonate with idealists or purists who are interested in the promotion of rational world paradigms that assume audiences or policy-makers need to be engaged in non-partisan disputation. He once explained, "Despite the inherent conservatism of audiences, public opinion is remarkably adaptable, mainly because few real-life audiences are interested in ideological consistency" (Aune, 2003, p. 70). The lack of consistency in ideologies may at times be problematic and can have grave material consequences, but Aune was convinced that in this capitalistic world, critics needed to study the audiences they had in front of them. As he averred, "The language of the free market has become everyday language, laden with certain ideologies" (Aune, 2003, p. 7). The material consequences of capitalist ideologies concerned Aune.
The ideologies of the free market, as Marx warned, will inevitably have disproportionate and undesirable consequences for different classes. Aune further argued that, "ideology," then, from a historical materialist standpoint, takes into account the epistemologies that circulate as truth claims and social fallacies-even in situations where people had limited social perspectives. In Aune's real world, one dealt not only with consistency and rationality, but "occupational psychosis," intellectual prostitution, and superstition (Aune, 2003, p. 4).
Aune wanted historical materialists to be cognizant of these influences as they worked for meaningful social change and social justice. In typical Marxist fashion, he surmised that class is "the central element of social and historical analysis" (Aune, 1994, p. x), and he added that there "is a real world" that had to be studied "where people suffer and die because of unequal and unfair distribution of resources" (Aune, 1994, p. x). Historical materialists recognize material circumstances and the history that has led to them, which allows for an increased opportunity for social change.
While we would argue that some of this is more postmodern than Aune would have admitted, there is little question that there were some reviewers of his work who were intrigued by his unorthodox framing of some of these problematics. For example, Aune has been criticized by some feminists who believed he should have included more Foucault or Deleuze in his theorizing, although they admitted that Aune had contributed a great deal to discussions on the intersectionalities, contradictions, and dialectics that were involved in merger of materialism and rhetoric. As Sells and Jaros noted in 1996, some of the most interesting aspects of Aune's work on "historical materialism" involved his recognition of "rhetoric's ability to restore Marxism's previous power as a conceptual system, and to actualize its potential power as a political system" (p. 83). Other academics commented that Aune's desire was to move past what he viewed as the current "rhetorical ineptness" (Houck, 2002, p. 183) as he looked at how the intersection of rhetorical theory, rhetorical practice, and Marxism could have material consequences in the world.
Obviously, applying some of this theorizing in concrete situations is a challenging enterprise, so we begin with an analysis of the Kiobel case that looks nothing like Aune's historical materialism. Following Aune's suggestions, we will be paying attention to which American or foreign communities- dare we say classes?-stand to profit from the exercise of judicial activism or judicial constraint in complex legal cases like Kiobel. At the same time, we will constantly be attentive to what Aune (1996) called the "arhetorical" features of judicial argumentation. In other words, as rhetoricians we highlight the very material impacts of this decision-making that Aune thought were sometimes hidden by the traditional formalism of legal argumentation.
THE IDEOLOGY OF JUDICIAL RESTRAINT IN KIOBEL V. ROYAL DUTCH PETROLEUM CO. (2013)
Aune (2002) once admitted that one of the targets of some of his studies of the free market and capitalism were some empowered social agents in society who "see no need for the state at all" (p. 233), and in this particular section we want to illustrate how the ideologies that swirl around legal discussions of "judicial restraint" can mask some of the societal struggles that Aune was talking about. While most of Aune's work focused on inequities within American society, we would argue that some of his insights regarding historical materialism can be extended to the impact that globalization is having on all types of domestic and international legal adjudication. More specifically, we are interested in those rhetors today who want to constrict the usage of the ATS to close off the possibility of equitable redress for struggling "foreigners" who face countless numbers of human rights violations.
In the Kiobel case, Chief Justice John Roberts, Jr. and the other members of the Supreme Court refused to get into any detailed discussions of the very topics that Aune was talking about. For example, the summary of the facts in the case tell us little about class relations in Nigeria, the power of Shell oil in the Niger Delta, the struggles of workers in that area, or amount of Nigerian oil that makes its way to American shores. What we are presented with is a fairly typical formalistic decision that focuses on interpretation of key statutes and legal precedents instead of including material about the grievances and activism that led to this case in the first place. The focus on the issues of corporate responsibility and "extraterritoriality" take center stage.
What Chief Justice Roberts does tell us in his selective summary of the facts is that the petitioners in the case were a group of "Nigerian nationals residing in the United States" who were filing suit in federal court against "certain Dutch, British, and Nigerian corporations" (.Kiobel, 2013, p. 1). The petitioners were characterized as residents of Ogoniland, an area of 250 square miles in the Niger delta region of Nigeria, a place that was populated by about half a million people. Esther Kiobel and the other petitioners were suing under the ATS, arguing that during the 1990s, Nigerian military and police forces attacked Ogoni villagers, and beat, raped, and killed residents during periods when some residents of Ogoniland were protesting the environmental effects of Shell Petroleum Development Company (SPDC) practices (Kiobel, 2013, p. 2). This is as close as these legal jurists come to talking about the material realities in Nigeria.
The majority opinion in Kiobel, where four other justices joined Chief Justice Roberts, is a text that treats the ATS as a jurisdictional statute that does not create any new cause of action. This strategy not only signals to the respondents, the oil companies, that things are going their way-it also means that the court may not get to the "merits" of the plaintiffs' case. By framing this decision as one that will focus on jurisdiction, the Supreme Court could then ask the question of whether or not the petitioners in this case had established claims that "rebutted" the supposed presumption that existed in American law against "extraterritoriality." In other words, there was a presumption that litigants could not come into federal courts and use the ATS if the conduct that they were objecting to was taking place on the "sovereign" and "foreign" soil of another country.
Interestingly enough, this formalistic language is sutured together with a public policy rationale for this analysis-protecting this presumption against extraterritoriality helped maintain respect for the sovereignty of other nations while preventing "unintended clashes between our laws and those of other nations." The Roberts majority thus created the impression that they were the ones that were protecting other countries from unwarranted judicial interference in foreign affairs (Kiobel, 2013, pp. 3-5), and it fed into the argument that the petitioners' broad interpretation of the ATS was relying on "inapposite" torts doctrines that were confusing causes of action with jurisdictional questions.
In order to support his claims, Chief Justice Roberts adopted a variant of an originalist framework when he argued that a study of the "historical background" shows that the Founders who passed the ATS were interested in three principle offenses--violations of safe conduct, infringements of the rights of ambassadors, and piracy. In theory, since none of the offenses that the plaintiffs were complaining about involved conduct occurring within the territorial jurisdiction of another nation, then this meant that Congress never intended to have the ATS interpreted in ways that made the United States a "uniquely hospitable forum" for the enforcement of international norms (Kiobel, 2013, pp. 5-14).
It is perhaps no coincidence that one member of the Roberts majority in Kiobel-Justice Antonin Scalia--was also the author of that "presumption" against extraterritoriality in the first place. Now Scalia had the chance to join other jurists who could share his ideas regarding "clear" interpretations of laws in ways that prevented American courts from being turned into international forums for all sorts of human rights cases.
In a key passage that appealed to many Americans who hated activist forum-shopping, Chief Justice Roberts elaborated on some of the formalistic jurisdictional language that precluded relief in the Kiobel situation:
On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required. (Kiobel, 2013, p. 14)
The very vagueness of the ATS allowed a group of literalist jurists to wear the garb of self-restraining justices who would not interfere with the sovereign affairs of other nations.
This self-characterization of self-restraining jurists who refused to get involved in foreign entanglements resonated with many patriotic audiences who believed that it was time to reign in foreign activist usages of American courts. John Yoo-yes, the same Yoo who authored the infamous "torture memos"--co-authored an essay that appeared in Forbes magazine that argued that the Court's decision in Kiobel provided a "wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy" (Ku & Yoo, 2013, para. 1). Ku and Yoo (2013) painted a valorizing portrait of the Roberts' Court as an institution that was willing to re-establish the balance of power between the various branches of government that had been upset when idealist jurists abused the ATS:
Some federal judges were all-too-eager to issue high-minded rulings involving broad principles of international law in such cases. International lawyers saw ATS lawsuits as a key tool for getting U.S. courts to interpret principles on international law in ways that the Executive Branch or Congress would not necessarily have approved of. Plaintiffs rarely won enforceable judgments or meaningful settlements in ATS lawsuits, but the idea that federal courts should freely develop and enforce international legal norms made the ATS sacrosanct among international lawyers.... By allowing ATS litigation, U.S. courts were vindicating the idea that any nation may assert jurisdiction over individuals, whether or not those individuals had any connection to the U.S. (para. 5)
Like the Roberts' Court before them, Julian Ku and John Yoo did not elaborate on what this "connection" looked like. As far as they were concerned, if any governmental bodies needed to be involved in redressing grievances involving alleged human rights atrocities by corporations, then those were issues that needed to be addressed by the foreign policy communities within the Congressional or Executive branches.
The reason that the Kiobel v. Royal Dutch Petroleum case (2013) is so important is that this is the first time that the U.S. Supreme Court has been willing to tackle the issue of the scope and limits of corporate liability under the ATS. This "obscure" statute (Carasik, 2013) was now going to be interpreted in ways that made corporations overseas unaccountable for their conduct in foreign lands. The rhetorical beauty of the Roberts' Court opinion is that it appears to be a reasonable way of protecting American companies and other corporations from lawsuits that have little to do with U.S. interests.
WHAT DOES A CRITICAL, HISTORICAL MATERIALIST REREADING OF KIOBEL REVEAL?
At first glance, a reader of Supreme Court opinions who is primarily interested in the "rule of law" might think that the case of Kiobel v. Royal Dutch Petroleum involves just arcane matters of jurisdiction and venue, where jurists use their hermeneutic abilities to arbitrate between conflicting interpretations of a one-sentence statutory fragment that is over 200 years old. For those who treat law as a legal science that involves the study of objective rules and principles, the last thing any readers should do is apply the type of materialist critique that looks at class struggle and social change in the way that Aune was talking about. Judicial restraint, after all, theoretically meant that maybe Congress was the right forum for studying the partisan politics, or the personal or collective ideologies of various constituencies.
By assiduously avoiding any study of Shell's activities in Nigeria and highlighting jurisdictional concerns, one might reasonably conclude that Chief Justice Roberts and the rest of the U.S. Supreme Court were acting apolitically when they concluded that foreign litigants should not use American courtrooms for human rights violations that take place overseas. A categorical, deductive approach might arrive at the position that the court was merely giving guidance for future cases and telling foreign litigants that they need to stop bringing ATS cases into U.S. forums when corporations-and not governments-are the defendants in these cases.
Yet, as we noted above, Aune (1990) admonished us to remember that those of us who are interested in historical materialism need to constantly make readers aware of the contradictions and the "ideological narratives" that were being constructed by motivated social agents (p. 172). In actuality, Chief Justice Roberts and the rest of the Supreme Court were intervening in complex social, public, cultural and legal debates about America's role in enforcing human rights violations here and abroad. Their judicial restraint was itself a performative act that had material and symbolic consequences, and it signaled to many corporations and their lawyers that they would probably be facing fewer lawsuits that had anything to do with human rights violations overseas, genocide, torture, environmental degradation, etc.
What a historical materialist approach would ask us to do is look carefully at the "history" behind the ATS, and ideologies that have swirled around that deceptively short statute. As Nzelibe (2012) explains, for more than three decades, presidents, judges, and members of Congress had operated as "strategic" political actors who defended "their partisan (or ideological) preferences" as they quarreled about the meaning and reach of the Alien Tort Statute (p. 1).
Many observers contend that the Carter Administration helped inaugurate this debate when it submitted an amicus brief in the case of Filartiga v. Pena, a case that involved two citizens from Paraguay, Filartiga and Pena. In 1976, Americo Norberto Pena Irala allegedly kidnapped and tortured to death Dr. Joel Filartiga's son, Joelito Filartiga. Pena at that time was the Inspector General of Police in Asuncion. In 1978 both Pena and some members of the Filartiga family came to the United States, and Dolly Filartiga, Joelito's mother, eventually told the U.S. Immigration and Natural Service about Pena's activities. The U.S. government decided to deport Pena, and while his deportation hearings were going on, the Center for Constitutional Rights dusted off the old ATS provision and convinced Dolly Filartiga that they might be able to win a civil case for wrongful death by torture in U.S. courts against Pena. The claimants argued that Pena had violated the U.N. Charter, the Universal Declaration of Rights, the American Declaration of Rights and Duties of Man, and America's wrongful death statutes, and eventually an appellate court noted that "the torturer has become--like the pirate and slave trader before him--Aosto humani generis, an enemy of all mankind." The Carter administration sent the 2nd Circuit Court of appeals an amicus brief that warned that if the American judiciary refused to recognize a private cause of action in cases like this under the ATS, then this "might seriously damage the credibility of our nation's commitment to the protection of human rights" (Memorandum for the United States, Filartiga, 1980, pp. 22-23).
Within a matter of a few years, human rights activists and liberal humanitarian lawyers were bringing cases under the ATS that involved Swiss banks and restitution for Holocaust survivors, the alleged human rights violations of Marcos in the Philippines, and the prosecution of Radovan Karadzic for activities that took place in Kosovo during the 1990s. From an ideological standpoint, the ATS was being interpreted in ways that allowed many foreigners to believe that they could get some justice--and win some large damage suits--even in situations where the alleged violations took place thousands of miles from American courtrooms.
Several Republican administrations, from Reagan to George W. Bush, have had members who have been skeptical about these usages of the ATS, and many of the Solicitor Generals who worked for these conservative presidents have prepared briefs that argued that the ATS was originally intended to help aliens avoid, not provoke "conflicts with other nations" (Reply Brief for the U.S., Sosa, 2004, p. 49). Note how Chief Justice Roberts' (2012) opinion in Kiobel, that talked about avoiding "friction," simply echoed these remarks.
Conservatives were worried that all of the liberals who were using the ATS for trying overseas human rights violations were circulating idealist ideologies that interfered with diplomatic efforts overseas, and oftentimes they commented on how these same liberals did not appreciate the consequences of their own actions. For example, didn't the defenders of the ATS realize that the U.S. has to occasionally negotiate with foreign individuals or nations that did not always have the most savory of human rights reputations? In Sosa v. Alvarez Machain (2004), one member of the U.S. Justice Department argued that "making any violation of customary international law actionable is profoundly flawed and would routinely generate the potential for judicial pronouncements at odds with the policies of the political branches on matters of foreign policy, which courts seek to avoid" (Reply Brief for the U.S., Sosa, 2004, p. 35). This raised the thorny problem of how to maintain the balance of powers between the three major branches of government, and presidents who were dealing with matters of national security and terrorism needed to be the ones who retained their unitary executive powers. In theory, they did not want human rights activities filling the U.S. federal courts with cases that angered potential allies in the global war on terrorism. One law review writer, who supported these conservative interpretations of America's role in the world, argued that those who were finding some principle of corporate liability under the ATS were building "shaky, indeed illusory, analytical and jurisprudential foundations" (Ku, 2011, p. 353).
By the time that Barack Obama took over the White House, the ideological battle lines had been drawn--many liberals continued to believe that the ATS was an essential part of the judicial toolkits that were needed by progressive Americans who were interested in the international "responsibility to protect," (R2P), but conservatives believed that it unnecessarily hurt corporations, encouraged problematic litigiousness, and even lead to some forms of judicial "imperialism."
At first it looked as though the Obama administration would have amicus brief writers who would support the Kiobel claimants, because Harold Hongju Koh would write one of those early briefs. Years before this, in a book review essay entitled "Why Do Nations Obey Laws," Koh (1997) argued that some experts in international law who theorized about the ATS simply did not appreciate the ways that it helped with the internalization of important legal norms. Fourteen years later, Koh was one of the legal advisers to the Obama administration who helped write an amicus brief on the Kiobel case for Donald Verrilli, the Solicitor General. In that brief, Koh argued that the U.S. Second Circuit had misread the legal precedents that had allowed litigants to hold corporations liable for "violations of the law of nations." He noted that since the time of the Nuremberg trials, national and international communities had grown "accustomed" to the idea that they could impose tort liability on corporations, and he observed that other countries--including the Netherlands and the United Kingdom--had incorporated the Rome Statute's three crimes--genocide, crimes against humanity, and war crimes-into their domestic jurisprudence (Koh, 2011, pp. 24-29).
This may have pleased representatives of the U.S. State Department who liked to think of themselves as the defenders of human rights and humanitarian interventionism, but it apparently infuriated some members of the U.S. Justice Department and set the stage for the type of contradictory ideological positioning that we believe would have entertained Professor Aune. For example, what if some defenders of the Kiobel case liked the idea of preventing the "extra-territorial" usages of the ATS, but did not necessarily like the idea of expanding corporate power or the vastness of legally-protected corporate rights? Was the Obama administration always this solicitous of corporate rights?
In June, 2012, Donald Verrilli sent the U.S. Supreme Court a very different "supplemental" amicus brief in the Kiobel case, that contained many sections that read much like the critiques of the ATS that were circulating during the Reagan administration years. Moreover, the tone of the supplemental brief created the impression that fragments of this text were serving as rebuttal arguments to the liberal positions that were taken by Harold Koh and others who defended the deployment of the ATS. For example, Verrilli argued that the Nigerians who brought the Kiobel case should have exhausted all of their other remedies against Dutch and British corporations elsewhere before trying to use the ATS in U.S. courts (Verrilli, 2012, p. 22). Other parts of his brief talked about "comity," respect for other jurisdictions, and the balancing of interests that might help "mitigate the potential for international friction" (pp. 22-23). While Verrilli was willing to argue that the 2nd Circuit had been wrong on the question of whether a corporation could be a defendant in an ATS suit, he did agree with the lower court's reasoning regarding actions that occurred "within the territory of a foreign sovereign" (p. 27). Unlike Koh, he was doing more than just hint that some of these cases that were being brought by foreigners living in the United States needed to be litigated abroad.
During oral arguments, both Justice Scalia and Justice Roberts clearly amused themselves by pointing out the contradictory positions that had been presented by Koh and Verrilli. Note, for example, this exchange that took place during oral argumentation in October of 2012:
Solicitor General Verrilli: Well Justice Scalia, in a case like this one, in cases under the Alien Tort Statute, the United States has multiple interests. We certainly have foreign relations interests in avoiding frictions with foreign governments; we have interests in avoiding subjecting United States' companies to liabilities abroad. We also have interests in ensuring that our Nation's foreign relations commitments to the rule of law and human rights are not eroded.
Justice Scalia: I understand that, but--
Solicitor General Verrilli: It's my responsibility to balance those sometimes competing interests and make a judgment about what the position of the Unites States should be, consistent with existing law.
Justice Scalia: It-it was--
Solicitor General Verrilli: And we have done so.
Justice Scalia: It was the responsibility of your predecessors as well, and they took a different position. So, you know, why--why should we defer to the views of the current administration? (Transcript of Oral Argument in Kiobel, October 1, 2012).
Scalia may have thought during this exchange that he was pointing out some of the formalistic legal flaws that existed in the contradictory positions that were taken by the U.S. government in Kiobel, but he was also inadvertently providing an illustration of what Aune (1996) was talking about when he explained how legal opinions involved a nexus between judicial rhetoric and "politics" (p. 669). What Justice Scalia was not talking about was his antipathy toward human rights advocacy by foreigners in U.S. courts that he believed had nothing to do with American interests. He, of course, was one of the jurisprudential decision-makers who was hiding his subjective politics behind the objectivist judicial mask afforded by jurisdictional argumentation.
No wonder that Nzelibe (2012) opined "that the ideological battles over judicial enforcement under the ATS has mirrored many of the broader debates about the role" that "human rights should play in shaping American foreign policy" (p. 54). For many conservative jurists and American citizens, expansion of ATS litigation threatened the marketplace that Aune wrote about, the supposed health of domestic and foreign corporations. To add insult to injury, the human rights cases that had proliferated since 1980 led to meddling in the sovereign affairs of other nations, and filled the coffers of left-leaning plaintiff lawyers who enriched themselves by finding more and more naive tort claimants. In spite of the fact that the Roberts' Court tried to create the appearance that they were merely exercising judicial restraint and helping clarifying the history and textual meanings of the ATS, these choices were themselves highly partisan decisions that intervened in some complex debates.
Yet as Aune reminded us, the study of ideology was just one dimension of what a historical materialist critic needed to keep an eye on as they studied the rhetorics surrounding corporations and legal forums. By extending some of his work and focusing on material events on the ground in Nigeria we get another perspective that allows us to see how courts, executive branches, and legislatures can become entangled in reviews of overseas corporate activities.
In the Kiobel case, it would be combination of poverty, petroleum, and pollution in the Niger Delta (see Amnesty International, 2009) that would influence the material conditions of those who eventually brought this ATS. If Karl Marx and Friedrich Engels (1852/1965) were right when they commented on the importance of class struggle and the study of wages for radical social change, then we need to realize that there are times when resources in Africa have been called a "curse," in that they have enriched some leaders who live in the midst of poverty.
All of this interest in suing oil companies began during the 1990s, when an organization known as the Movement for the Survival of the Ogoni People (MSOP) began protesting against some of the activities of Royal Dutch Shell and a few of its subsidiaries in the Ogoni region of the Niger Delta. MSOP brought together alliances of activists who were interested in the pursuit of both environmental and social justice in the Niger Delta, and eventually several members of the movement, including Dr. Barinem Kiobel were arrested and charged with what some have called "specious" charges (Carasik, 2013).
In their complaint that was filed in a U.S. federal district court, the plaintiffs argued that Shell Oil, and its parent company Royal Dutch Petroleum, had been complicit with the Nigerian government in "a widespread and systematic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings constituting crimes against humanity to violently suppress this movement" (Hoffman, 2013, p. 3; De Vogue, 2012, para. 3). For more than 16 years this case gained notoriety because the plaintiffs were not suing in Nigerian courts or asking for equitable remedies from the International Criminal Court. Instead, they were trying to pursue redress for alleged human rights violations and crimes against humanity in U.S. federal courts, and when the Robert's decision was announced, many felt that they had been betrayed by the Americans who had prided themselves on their human rights records.
RHETORICAL WORK, HISTORICAL MATERIALISM AND IMPLICATIONS
When Chief Justice Roberts in Kiobel argued that no nation in world history had ever pretended to be the guardian of morals for the entire planet, he may have been espousing a principle that taken in isolation may have appeared to be reasonable and pragmatic when it was penned by Justice Story in the early nineteenth century. Yet from a material standpoint, we live in an age of globalization, a time when Americans are hearing about European austerity and high domestic unemployment, and we can understand why the present Supreme Court's rhetoric might resonate with conservatives and others who are worried about economic conditions. The thought that U.S. courts are being used by lawyers to win hundreds of millions of dollars for foreign plaintiffs does not sit well with audiences who already have reason to believe that their nation had become overly litigious. The notion that U.S. courts should not be used by foreigners who want to sue transglobal corporations also resonates with patriotic communities who are already tired of all of the "lawfare" that has come from the politicizing of the federal courts since 9/11 as countless former detainees or other plaintiffs complain about conditions in places like Abu Ghraib, Bagram, or Guantanamo.
During the late 1970s, many Congressional leaders and some of their constituents may have welcomed how the Alien Tort Statute was being adopted in ways that allowed aggrieved parties to go after individuals living in the U.S. who once were involved in genocides overseas, or banks that helped finance the Holocaust or corporations that aided and abetted the cause of other states that may have been involved in human rights violations, but for some, enough was enough. Even if one did not believe in isolationist principles, there had to be limits, and the majority's decision in Kiobel could be configured as a desirable, and necessary exercise in the type of judicial restraint that allowed Americans to focus on U.S. concerns.
Chief Justice Roberts' majority opinion in Kiobel, that required future claims under the Alien Tort Statute to have connections to the U.S. in ways that had "sufficient force to displace the presumption" against extraterritorial application, was welcomed by corporate communities who viewed themselves as victims of idealistic plaintiffs who did not understand the damage that they were inflicting. Lily Fu Claffee, the chief legal officer at the U.S. Chamber of Commerce, remarked that the ruling was good "news for businesses all around the world that were being punished in U.S. courts with costly, reputation-damaging litigation" (Hurley, 2013, para. 6). From a class perspective, the wealthiest of Americans who depended on unfettered capitalism could hail this decision as a victory for those who disliked having their court turned into forums for human rights deliberation.
All of this sounds coherent and rational when we view the principle of judicial self-restraint in isolation, but what happens when we start to apply some of Professor Aune's insights regarding the roles that critical history, ethics, and class struggle play in the constitutive formation of various jurisprudential principles? Part of the reason that Aune worked so hard to find some type of rapprochement between Marxism and traditional argumentation studies is that he was convinced that the study of various discursive and material contradictions led to a productive understanding of ideology, class struggle, academic power, and democratic governance (Aune 1990, p. 159), and a materialist recontextualization of the Kiobel case tells us a great deal. It helps us demystify some of the ways that these formalistic and arcane arguments about extraterritoriality in Kiobel are being used to paper over the problems in the Niger Delta or the ways that foreign contractors or military units are used to prevent the growth of the very social movements that Aune admired.
A critical historical materialist approach may help us decode some of the beguiling appeal of decisions that appear in the garb of judicial restraint, but it also has heuristic value in that it refuses to accept logocentric ways of conceptualizing problems that focus exclusive attention on discursive argumentation. Although Professor Aune often disagreed with some of his more liberal or radical friends about the relative merits of some forms of postmodern thinking or post-structuralist ways of approaching the study of rhetorical influence or meaning, he shared many of their grounded, materialist interests regarding social justice, the need to study the view of "the people," labor unions, and jurisprudential fairness.
For example, given Professor Aune's interest in pragmatism, an argumentation approach that is based on a historical materialistic critique might rightfully ask: What will be the long term, intended and unintended consequences of the Kiobel decision, and will this help the cause of those seeking economic or social justice? Aune might have been disappointed in the way that the Supreme Court seemed to brush aside some of the substantive concerns about human rights violations overseas, but he may have partially agreed with those American jurists who were worried about overreaching.
Moreover, is it possible that the closing of some ATS avenues for foreigners will end up providing new, unanticipated opportunities for social justice? One interesting answer to that question has been posed by historian Samuel Moyn, who makes this argument about the possibility that human rights advocacy might profit from the abandonment of the ATS:
Far better would be to move on to other ways of protecting human rights-less centered on courts, less rushed for a quick fix, less concerned with spectacular wrongs to individuals and more with structural evils, and less disconnected from social movements abroad. And there are also better ways to protect humanity in the age of powerful multinational corporations, notably regulatory schemes that connect far more clearly to the originally welfarist meaning of human rights. It if moved in these directions, the human rights movement would give its conservative adversaries reason not to gloat but to tremble, (quoted in Spiro, 2013, para. 4)
We are not so sanguine. We worry that in the absence of the ATS, neither Congress nor the American executive branch will be that interested in regulating corporations that are accused of getting entangled in human rights violations overseas. Ironically, the U.S. has little trouble finding rationales for geographically extending the reach of our drones or other counterterrorist measures in the name of national security, but like to reign in our global reach when it means that U.S. or foreign corporations might be held accountable for their activities overseas.
As scholars, our ability to change the legal and material circumstances created by the Kiobel decision is limited. We have another kind of work to engage. Aune often pointed out that ideological critics have the obligation to underscore in their work the material consequences of rhetorical practices of which, oftentimes, the advocate is even unaware (Aune, 2003a, p. 15). If Aune (2003a) was right when he claimed that a "rhetorical reading" should take into consideration all "available means of persuasion," including, "ideological raw materials," structural possibilities, collective action, historical evidence, and the presence of opponents (p. 15), then we need to highlight the social agency of all empowered actors, including those like Chief Justice Roberts as he writes about judicial restraint and the ATS. We hope that our analysis of the contradictions and contentious nature of the ideologies that swirl around the Kiobel case will contribute to the goal of making the "un- if not antidemocratic" nature of rhetoric more democratic (Aune, 2003a, p. 70), and open the door to more productive rhetorical criticism in the materialist vein that Aune both pioneered and invited us to engage.
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(1) Justice Story's quotation on the custos morum of the whole world first appeared in United States v. La Jeune Eugenie (1822).
(2) The ATS provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States" (28. U.S.C. Section 1350). Another part of the Federal Judiciary Act of 1789 stipulated that the "Supreme Court shall have exclusively all the jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations."
(3) A tort is a civil wrong for which the law provides a remedy. In Anglo-American law it is considered to be one of the major areas of law that include jurisprudential suits against persons, states, or corporations that involve various equitable remedies, including monetary compensation for damages or requests for abatement.
(4) For example, given Aune's interest in the work of Marx and other materialists, it is puzzling that this did not lead him to extend the arguments of members of the Critical Legal Studies movement who viewed jurisprudence as the study of material conditions, power, and ideology (see Lucaites, 1990). Instead, most of Aune's work built on the insights that came from the work of James Boyd White and the Law and Literature communities (see, for example, Aune, 1996). We would argue that some of his critiques of corporate rhetorics were much more radical than his commentaries on legal cases.
Marouf Hasian, Jr. is Professor in the Department of Communication at the University of Utah and Megan D. McFarlane is a Ph.D. candidate at the University of Utah. Correspondence concerning this article should be addressed to Marouf Hasian, Jr. Professor, University of Utah, 255 S. Central Campus Drive, University of Utah, Salt Lake City, UT 84112.
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|Author:||Hasian, Marouf, Jr.; McFarlane, Megan D.|
|Publication:||Argumentation and Advocacy|
|Date:||Mar 22, 2014|
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