Justice Antonin Scalia, in addition to being an originalist, also apparently believes in magic.  Or so we must conclude.  In yesterday’s argument over whether to certify a class-action alleging gender discrimination at Wal-Mart against female employees, the employees’ lawyers argued that Wal-Mart, by adopting a policy of delegating pay decisions to local managers, fostered a culture whereby pay and promotion decisions would knowingly result in decisions systematically biased in favor of male employees.  Scalia’s reaction to this argument was that the company had an “announced policy against sex discrimination” and expressed disbelief when the lawyer representing the women argued that the reality was just the opposite. I guess it must be the case that because Wal-Mart promulgated this policy, we can then assume, magically, that it was in fact implemented and observed in good faith.  An employer would of course never announce a policy that it had no intention of complying with in order to do something so crude as trick people into thinking they are in compliance with the law or that they are a progressive employer. Especially not a company like Wal-Mart, which already enjoys a stellar reputation as an exemplary employer.

Rolling Stone has just published a gruesome expose of the actions of a unit in the US Army that engaged in a killing spree of Afghan civilians for sport, even severing body parts for personal trophies.  The article makes clear that this was not the conduct of a few bad apples; rather, it was born of a deep hatred for Afghans that led Jeremy Morlock, a corporal in the US Army and of the soldiers accused of these crimes to say to one of the investigators “None of us in the platoon – the platoon leader, the platoon sergeant – no one gives a fuck about these people.”  It is probably the case that the scenes described in this story are being repeated on a wide scale in Afghanistan.  If the reports in this story are true, the only conclusion one can reach is that the US Army has now become depraved to the point of barbarism, something I say with deep sorrow.  The article clearly shows that the actions of this “rogue” unit were well-known, and they saw no need to hide what they had done.  In short, the evidence is pretty damning that the Army was aware of the conduct, and did nothing to stop it, until it was forced to, and even when it did respond, it has failed to take any action against officers who either knew, or were recklessly indifferent, to the conduct of soldiers under their command.  Even someone like myself who is not a flag-waving American nationalist likes to believe that the US Army tries to live up to the ideals of the American Republic.  This story shows with clarity that it no longer has the capacity to do so.  I also think that it follows from this conclusion that we have no business in Afghanistan and should leave immediately.

This detailed statistical analysis of the referendum vote, on a province by province basis, along with socioeconomic statistics such as voter turnout, literacy, per capita GDP and its ranking on the Human Development Index, provides very good evidence that the transformation we desire in Egypt will require substantial investment in the human capacities of the Egyptian people, in particular, in the countryside.  Click on “read more” to see the details.

Now that the official results of the March 19^th referendum are in and the constitutional amendments have been approved, one can confidently say that a new era of competitive politics has dawned in Egypt.  Whether it will lead to a progressive future, or one dominated by narrow sectarian and class politics, however, is a question that will only be answered over the next few years.  In the near term, there will be parliamentary elections, and most analysts seem to assume that these will be dominated by the only two organized political forces in Egypt: the Muslim Brotherhood and the remnants of the National Democratic Party.

I posted some thoughts on the March 19th Referendum earlier this week the sum and substance of which were that there were good arguments on both sides, but that ultimately, the result did not matter because the military was still in control, and it has proven that it will not make any changes unless the people force it to change.  Since that post, however, I have had occasion to revisit this agnosticism and now wish to clarify something important that was missing from my initial analysis.  While I continue to be agnostic regarding the substantive decision to approve or reject, I do think the following points are important:

1. Turnout needs to be high.  A weak turnout will be taken as a signal to the military the population is more or less satisfied with what has happened, i.e., the removal of Mubarak, and that this was about nothing more than succession.  The problem has been taken care of, and we need not worry about torture, democracy, etc.

2. Results must be transparent and voter fraud should be minimal and where instances of vote-rigging or vote-buying are documented, they should be aggressively publicized and punished.  There needs to be a strategy in place to monitor voting sites throughout the Republic.

3. Ideally, whatever the results are, it should be close.  A close outcome will signal a deeply engaged public that is going to keep the military on the hot seat with respect to the transition.

I don’t believe the current Egyptian military has the stomach for a long fight over democracy with the Egyptian people, but they also are not keen in having Egypt become a democracy either.  They will come along, but only crying, kicking and screaming, like a spoiled-child.  The parents, in this case, the Egyptian people, have to be patient enough to put up with their spoiled behavior, which is a reflection of the 50-plus years of privileges they have enjoyed.

Marc Lynch, a/k/a “Abu Ardvark,” reported today via his twitter feed that al-Qaradawi stated that each Egyptian citizen must choose for himself whether to vote yes or no, implicitly rejecting the position of some who have claimed that it is a religious obligation to vote yes.  I was happy to hear this because it is consistent with Qaradawi’s previous teachings on voting, which he classifies as a special kind of shahada, namely, testimony pertaining to the public interest.  A witness has a legal duty to tell the truth in a court case, not provide testimony that will further his or her own interest.  So too, according to Qaradawi, a Muslim voter, when voting, is being asked for his considered opinion on what constitutes the public good, and the voter is therefore under a religious duty to provide that considered opinion honestly and in good faith.  Because what constitutes the actual public interest is something that can only be known prospectively, a voter’s decision can only be based on judgment, ijtihad, under conditions of uncertainty, and accordingly, all that is required is a good-faith belief on the part of the voter that his decision is the correct one.  Note, however, that what this view of voting prohibits is self-interested voting, i.e., voting based on how it will benefit the voter as an individual rather than as a member of the citizenry.  In this respect, Qaradawi’s model of voting is similar to civic republicanism and rejects voting as a self-interested enterprise whose purpose is to maximize individual welfare.  For those with more of an interest on his theory of the ethics of voting, I believe he has a discussion of this in his book “Fiqh al-Dawla fi al-Shari’a al-Islamiyya,” published by Dar al-Shuruq.