NEWS  

1101 Market Street, 11th Floor • Philadelphia, PA 19107

Phone: 215-238-6300 • Fax: 215-238-1267 • www.philadelphiabar.org

10/11/2001

FOR IMMEDIATE RELEASE


Contact: Daniel A. Cirucci

Phone: (215) 238-6340


"Remember, Renew and Resolve" -- Remarks by Villanova Law School Dean Mark A. Sargent at Oct. 11 Remembrance Ceremony

How do we remember what happened on September 11? Of course, the memory is indelible. We will all remember where we were when it happened. But making sense of that memory is something else altogether. Remembrance is an act of understanding, so how do we grasp the meaning of what happened on September 11? How do we satisfy our basic human need to create meaning?

Once in a great while something happens that is so incongruous, so at odds with our settled expectations, that we are trapped in dissonance. We don’t know how to attach meaning to the event. We don’t know where to place it. We can’t put a name to it. What happened on September 11 was one of those rare things.

It is not one of those things simply because so many died--horrible as that number was. We have seen mass death before. Far more than 6,000 died in Pakistan in a typhoon and flood just a few years ago. And not so long ago we left more than 6,000 bodies on the beaches of Normandy and the Pacific islands. But we understand those deaths. We understand what natural disasters can do. We understand what a conventional war can do. The mere scale of those deaths did not trigger the sense of unreality we are all feeling now.

Today’s sense of unreality flows from something other than the magnitude of the deaths. The sense of unreality is partly a matter of imagery. The image of a commercial airliner flying directly into a skyscraper is a violation not only of what we perceive as right or wrong, but our sense of what is possible. The images of those giant towers collapsing were so uncanny as to be literally breathtaking. Those images still seem impossible, figures of fantasy, or nightmare. But they were real. And we somehow have to come to grips with that fact.

The feeling of unreality also derives from what we might call the radical dislocation of the ordinary. The World Trade Center Towers were big, but they were pretty ordinary. They were full of people much like you or me, starting their jobs on an ordinary workday, after their ordinary commutes from Long Island or New Jersey or Battery Park City or Queens. They were in New York, which is a unique place, but one that is here, amongst us, where we all go from time to time to do the usual things. That familiar, comforting, ordinary reality was almost instantly transformed into something shockingly unfamiliar, uncomfortable, extra-ordinary. And we know that if it can happen there, it can happen here. If it can happen to them, it can happen to us. Do we have the language to give that some kind of meaning?

Finally, the sense of unreality comes from the sudden recognition that what was our reality for the last twenty-five years may have been an illusion, an idyll of peace and invulnerability that turned out to be a chimera. Something fundamental in our expectations for the world shifted, and the shift was so abrupt it left us disoriented and uncertain.

The feeling of unreality is an obstacle to language, and as an obstacle to language it hinders the creation of meaning. We feel, in a small way, the sense of enormity that most people felt after the facts of the Holocaust--perhaps the greatest enormity--became clear. We understand something of what the philosopher Theodore Adorno meant when he argued that "to write poetry after Auschwitz is barbaric." When faced with enormity, language seems so inadequate as to be offensive, and the quest for meaning seems to be futile.

But it is not futile. It cannot be. We will overcome the sense of unreality as the unreal becomes familiar, and as we find ways to talk about what happened and, more importantly, what is happening now. Occasions such as today’s are a beginning.

So we begin by remembering. First of all, we remember those who died, in all their irreducible human particularity. They are not just 6,000 bodies, a statistic. They were 6,000 individual human lives, each precious in its uniqueness.

And we remember those who were there, but somehow survived, whether by a stroke of fortune or by dogged courage, but whose hearts will be marked by the horror of their experiences. They will bear the weight of having survived, when so many did not.

And, of course, we remember those who gave their lives in the act of rescue. Their sacrifice means more than we can fathom. Through the attacks on the World Trade Center and the Pentagon we are confronted by evil and sin, but through the self-sacrifice of so many firefighters and police we are surprised by goodness. Religious believers have been challenged in the last month to explain the presence of overwhelming evil in the face of a loving God. But the acts of the rescuers challenge us all to explain the mystery of self-sacrificial love.

Most importantly, however, we must remember those who have been left behind - - the families, the children, the friends. The true cost of the attacks will be measured in the long grief of those still-living people: spouses and parents bereft, children whose sense of security in the world has been ripped away. They will have financial support, but will there be support for their pain? And we all understand that kind of pain, because it is universal. As Saint Augustine said in his Confessions: "The lost life of those who die becomes the death of those who are still living." For those who possess a religious faith, they may find solace in some other words of Augustine: "If we are afflicted, we still find consolation. Our weakness bears us down, but our faith bears us up. We sorrow over the human condition but find our healing in the divine promise." For those without religious consolation, we hope they will find solace in love of their families and friends and in the knowledge that an entire nation shares some small part of their pain.

Remembrance is, however, only a first step. The next step is renewal of some of our most basic commitments.

The most fundamental renewal is a reaffirmation of who we are as a civilization. Too often in recent years some have dismissed all voices celebrating Western culture as reactionary and xenophobic. To be sure, Western culture has its share of bigotry and the universal human tendency to marginalize those who are different, but too many tend to see nothing in Western culture but its worst aspects. What now ought to be exquisitely clear is that the very capacity to utter such self-criticism is what makes Western culture so extraordinary. It is that freedom that lies at the core of Western values. The products and expressions of that freedom are not always pretty, and they are often messy, and often threatening to certainties. That freedom thus is what our highly certain enemies hate; it is precisely what we must reaffirm.

We must use that freedom, however, to renew our capacity to engage in thorough and relentless self-examination, and, when appropriate, self-criticism. We must think very hard about the consequences of our actions overseas and about how our policies can engender resentment and reaction. All of this should be a focus for public debate, a rational conversation in the public square that will not only lead to more effective action, but will establish the legitimacy of those actions as the fruit of a just and democratic process.

In that process of self-examination, however, we should be careful to distinguish what we should be blamed for and what we should not. When we Americans are told to ask ourselves why we are so hated, we should answer very carefully. A reflexive, facile answer to the effect that the attacks are simply a matter of "blowback," of our own foreign sins coming home to roost, is not only dangerous, but wrong. The radical anti-Americanism prevalent in some parts of the world is essentially irrational. It expresses a hatred of the successful, and is spawned by envy and frustration. It attributes responsibility for all the ills of the world to one major source, and ascribes to that source a ruthless desire to dominate humanity. Significantly, it ignores the dysfunctional, oppressive and self-defeating characteristics of the cultures supposedly victimized by the United States. It is a conspiracy theory that is entirely self-referential and invulnerable to criticism. It conflates in a conveniently simplistic way a vast complex of economic, social, religious and national animosities in a murderous combination. So, as we engage in our own soul-searching, as we exercise the freedom to criticize our own policies, as we seek to understand our enemies’ pain, we should not succumb to uncritical, non-reflective self-condemnation. As we try not to demonize our enemies, we should not allow ourselves to be demonized.

We must also renew our commitment to the rule of law. This is a more complex proposition than it may seem. Indeed, the use of the word "law" in this context has its ironies. After all, the nineteen murderers were absolutely convinced that they were acting in accord with God’s law, and that they were acting against defilers who had forfeited their right to life under God’s law. I will leave it to others more learned than I to judge whether their position is an orthodox interpretation of Islamic law or a perversion. I merely wish to point out that we are not faced with a simple question of law versus lawlessness, but one of two competing conceptions of law. So if we are to respond properly to their acting out of their legal mandate, we must live up to our obligations under our own law.

This means that we must be conscious of legal restraints on our behavior, in at least two ways.

The first is a matter of rights. To the extent that our struggle is one that involves criminal prosecution or the coercive civil powers of the state, we must ensure that the requirements of due process be met, as appropriate, in every case. The principles of our jurisprudence, as well as our statutory law, that prohibit discrimination on the basis of race, national origin and religion also must continue to be honored, especially in an era of strong anti-Arab and anti-Muslim sentiment. The cluster of rights of free speech, assembly, freedom from unreasonable searches and privacy must be preserved, even during a period of great alarm and fear. I think all of us, as lawyers, would agree with these propositions, and I am sure that all of us feel a personal obligation to protect those rights that, after all, distinguish us from those who would destroy us. But let me strike a cautionary note about this conventional wisdom by quoting a recent statement by the communitarian thinker, Amitai Etzione:

We should avoid claiming that every limited change
in our policies and laws drives a stake through the
heart of our Constitution or allows terrorists to destroy
what America is all about. We should not automatically
reject any and all new measures to enhance our security.

In other words, we are faced with a question of balance. Our shock and outrage and our concern for security must not lead to the abuses of our civil liberties prevalent in the Red Scare of 1919, the racist internment of the Japanese in the 1940's and the McCarthyite hysteria of the 1950's. Conversely, our desire to protect those liberties should not be used to condemn reflexively even rational, transparent and measured attempts to improve the relevant laws and procedures in a time of genuine national emergency. It is particularly our responsibility as lawyers to use our dispassionate, analytical capacity to make essential distinctions about rights and supervening necessities, and to eliminate the cant and hyperbole from our public conversation and our policy-making.

The rule of law also constrains the way we should make war. Of course, the concept of applying the rule of law to war-making seems contradictory. The difference between criminals and enemies is that enemies are not entitled to due process of law. The difference between police and soldiers is that soldiers are far less restrained in the amount of force they can bring to bear. "Law" and "War" thus may seem to have little to do with each other. Nevertheless, liberal democracies such as ours accept the premise that wars must be conducted in accordance with a set or restraints that have both legal and moral authority.

This is a well-established position--although perhaps more honored in the breach than the observance--that is derived from the Christian just war tradition and is fully elaborated in secular terms in the international law of war. There are many implications of this tradition, but we must emphasize three basic elements.

First, there must be a just cause for war. Imperialistic ambition, racially-motivated aggression, and religiously-inspired hatred of those who hold different beliefs are, for example, not justifiable reasons for going to war. Self-defense, in contrast, is a legitimate reason for the use of force.

Second, the amount of force used must be strictly proportional to the threat.

Third, purposeful targeting of civilians is always wrong, and strenuous efforts must be used to minimize injury to non-combatants. So far, we have been waging a just war under the rule of law, but whether that can be sustained in a struggle with an enemy that rejects those rules, or whose conception of a just war is vastly different from ours, remains to be seen.

With renewal must come resolve. We must resolve, most of all, to persist in our struggle. We recognize that the struggle will not simply be war in a conventional military sense, although it will include that. Our enemy is too elusive for a conventional war. Our struggle will be in the twilight of law enforcement and intelligence. It will involve diplomatic arrangements that may appear unsavory or too expedient. It will require the judicious application of economic power in ways that may be costly to us as well as our enemies. It will be a struggle fraught with moral ambiguity.

But we must resolve to face those ambiguities because we are engaged in a just war. It is just because we have a moral obligation not to stand by when our neighbor - - which includes all of us in this country--is threatened with harm. For Thomas Aquinas, whose conception of the just war still informs both religious and secular thinking about war, the resolution to fight the just war is ultimately an expression of caritas, or the love of others. When we fight out of love for others we are drained of vitriol and vainglory, and we merely resolve to do what must be done.

We must also resolve to endure. As a culture, we are not very good at enduring. We don’t expect pain to last very long. We expect neat resolutions and quick, happy endings. Our media-saturated consciousness makes it difficult to distinguish between real conflict and the latest mini-series. We must accept, however, that there will be no neat resolution, and that some aspects of our lives have changed for the worse, and that we must endure, as bravely as possible, a new reality.

Finally, we must resolve to affirm, in as many ways as we can. What I mean by that was expressed best by the English poet W.H. Auden in a poem entitled "September 1, 1939," which is about another awful September day, the day the Nazis invaded Poland. He ends his poem with these words:

Defenceless under the night
Our world in stupor lies;
Yet, dotted everywhere,
Ironic points of light
Flash out wherever the Just
Exchange their messages;
May I, composed like them
Of Eros and dust,
Beleaguered by the same
Negation and despair,
Show an affirming flame.

-30-