Saturday, July 11, 2020

Co-Written by Dag-Erik Berg and Torjus Midtgarden

The scholarship of Bhimrao Ambedkar (1891-1956) has become visible during the last couple of years, but the discussion of his conceptual contribution and his relevance to contemporary political theory appears underdeveloped. Ambedkar was a scholar on caste, democracy and law; and he has been celebrated as the chairperson of the drafting committee of India’s constitution. Some comprehensive studies of Ambedkar’s political thought have recently emerged (see, for example, Kumar, 2015), and there are several other new publications on this topic. However, the focus on the fact that Ambedkar was a student of the American philosopher John Dewey remains celebrated to the point of representing a theoretical stalemate. The fact that Ambedkar studied under Dewey during his time as a student at Columbia University has been an important point in literature on Ambedkar and his movement since Eleanor Zelliot’s seminal study (2001). But this point may also end up blurring our understanding of Ambedkar’s theoretical contribution and his relevance in contemporary political theory.
The recurring inclination to highlight that Ambedkar was a student of Dewey has both advantages and disadvantages. The advantage is that one could learn about the intellectual history and one of Ambedkar’s main sources of inspiration. Yet the disadvantage is that existing trends in political thought is confirmed at the expense of realising the potential and scope of a radical political philosophy. This is why Ambedkar’s thoughts and concepts should be made more explicit.
As argued in Berg (2020) Ambedkar’s concepts can be brought in fruitful dialogue with the approach to hegemony of the late Argentinian philosopher Ernesto Laclau (2014). The political theorist Oliver Marchart characterises Laclau’s conceptual contributions as one of the main achievements in contemporary social and political thought (Marchart, 2018). But Ambedkar’s concepts, distinctions and thoughts do offer clear-cut contributions to such radical political theory developments as well. Laclau’s key concept in his approach to hegemony is antagonism by which he means that one pole dominates and breaks down the strength and power of the other pole (Laclau, 2014). His concept of antagonism differs from an ordinary and Marxist understanding of conflict. According to Marchart, it represents Laclau’s idea about political ontology. Ambedkar’s discussion of ‘touchables’ and ‘untouchables’ in the context of a system of ‘graded inequality’ can be effectively explained via Laclau’s approach in critical political theory. In fact, while Ambedkar’s concept of graded inequality could be viewed as a concept that explains the frequent atrocities and everyday forms of humiliation in the caste system, it also represents Ambedkar’s independent theoretical contribution.
Ambedkar was a thinker with a sustained interest in explaining and addressing caste-based oppression. His contribution to social and political theory should therefore bring into focus how he is engaging with an object of study that cannot be fully grasped through simply extending the application of Dewey’s concepts. Caste is a significant object of study, and Ambedkar’s conceptual innovation appeared bolstered by having addressed its multidimensionality.
Dewey’s relevance
One central task is nonetheless to delineate and specify how one could make sense of Ambedkar’s relationship to Dewey’s philosophy. It is clear that Dewey is a source of inspiration when reading Ambedkar’s most revolutionary text, Annihilation of Caste from 1936 (Ambedkar, 1989). Several scholars have described the relevance of Dewey and the American legacy (see, in particular, Zelliot, 2001). Recently, academic philosophers have followed up this relationship by introducing several insightful publications about Ambedkar and Dewey (Maitra, 2012; Mukherjee, 2009). Indeed, it has been valuable to have the American philosopher and Dewey-scholar Scott Stroud to engage with this topic. Stroud demonstrates how Ambedkar draws on Dewey’s texts in Annihilation of Caste. He also characterises Ambedkar as an Indian pragmatist (Stroud, 2016, 2017a, 2017b). However, while Stroud has presented several insightful observations, it would be inadequate to characterise Ambedkar as an Indian pragmatist. Nor would this label communicate the relevance that cultural context has for individual thinkers. Instead, one needs to follow up Keya Maitra’s suggestion (2012: 302) that Ambedkar’s personal experiences matter for his thinking, notably by focussing on his conceptual development and contribution.
Ambedkar’s relation to Dewey’s concepts
Stroud argues that Ambedkar’s interpretation and use of Dewey’s concept of democracy can be understood as reconstruction in Dewey’s sense (Stroud 2017a). ‘Reconstruction’ is a key concept in Dewey’s Democracy and Education (Dewey, 1985). In one of its main applications, it concerns a reorganisation and development of received practices and institutions in order to enhance social cooperation and individual learning (Dewey, 1985: 82-86, 107). Ambedkar’s Buddhist conversion could be understood as a reconstruction in Dewey’s sense. However, even though this term has been used in the part of the literature on Ambedkar dealing with his Buddhist conversion (Jondhale and Beltz, 2004), we argue that Ambedkar’s understanding of democracy cannot be made sense of in terms of a reconstruction. This point becomes clearer by examining how Ambedkar engages with Dewey’s Democracy and Education.
In Annihilation of Caste, Ambedkar explores Dewey’s conception of democracy in Democracy and Education. Dewey’s conception of democracy is wide. For both Dewey and Ambedkar, democracy is defined as ‘primarily a mode of associated living, of conjoint communicated experience’ (Ambedkar 1989: 57).  Ambedkar follows Dewey’s idea about how democracy represents an ideal for the organisation of society. Yet Dewey considers social conditions for the applicability of this ideal that differ from the conditions under which Ambedkar applies the same ideal. Dewey thinks that a modern society consists in constellation of loosely connected and overlapping groups, such as professional, religious, artistic, or political groups, or immigrant groups distinguished along ethnic lines (Dewey, 1985: 87-88). He thus takes social membership to consist in multiple memberships in various groups. Dewey does consider segregation based in race and class. Yet, in other cases, he observes, ‘many interests consciously communicated and shared; and there are varied and free points of contact with other modes of association’ (Dewey, 1985: 89). Dewey qualifies such cases as states of ‘social endosmosis’ (Dewey, 1985: 90). Identifying such states is crucial. He argues that in order to develop an ideal of democracy, one has to base it upon ‘societies which actually exist’ (Dewey, 1985: 88). Hence, in Dewey’s pragmatist approach, one first needs to ‘extract the desirable traits of forms of community life which actually exist and employ them to criticize undesirable features and suggest improvement’ (Dewey, 1985: 88-89). This qualifies Dewey’s conception of democracy as a socially immanent ideal (Good, 2006; Midtgarden, 2011, 2012).
Ambedkar adopts Dewey’s idea that democracy is characterised by ‘social endosmosis’ (1989: 57), but he redefines the discussion of democracy when examining different social conditions. Caste contradicts the kind of inter-group contact and sharing of interests across groups that democracy as an immanent ideal would entail. Additionally, the caste system legitimises social segregation in ways he fails to find in other cultural contexts. In other words, the social conditions for articulating and applying Dewey’s concept of democracy are radically different from those described in Democracy and Education. On Ambedkar’s account, the democratic ideal cannot be taken as socially immanent in the Hindu social order. This suggests that Ambedkar’s understanding and use of the concept of democracy cannot be seen as a reconstruction in Dewey’s sense as argued by Stroud (2017a). Instead, we think that Ambedkar’s use of concepts involves a far more radical approach.
Beyond the pragmatist frame
According to the intellectual historian Quentin Skinner (2002: 67), the exegetical literature in the history of philosophy would often find coherence between philosophers at the expense of understanding how each philosopher writes to address particular questions in one’s society. This also applies to Ambedkar’s text Annihilation of Caste. Ambedkar wrote this essay in the mid-1930s, which is around the time that he had claimed that he would abandon Hinduism as a religion because of the oppression and atrocities that he and his people experienced. This claim has caused well-known controversies, which includes the objections by M. K. Gandhi. However, the text has greater theoretical substance. It is argued by Berg (2020) that Ambedkar in Annihilation of Caste develops an account of what can be characterised as an ontological drive of caste or the ‘grip of caste’. The revolutionary text suggests the ways in which Ambedkar was engaged with an intellectual project of analysing caste and going beyond it. It is in the process of thinking and addressing questions of caste-based oppression that he develops several innovative sociological concepts (Herrenschmidt, 2004). Therefore, we suggest that Ambedkar’s philosophy and concept development should be made more explicit. In doing so, one may bring an innovative thinker into dialogue with global political thought and strengthen the ontological turn in political theory (Laclau, 2014; Marchart, 2018) if one also brings in caste as his object of study.
About the authors
Dag-Erik Berg, Associate Professor of Political Science, Molde University College. Berg teaches political theory and globalisation and is the author of “Dynamics of Caste and Law” (Cambridge, 2020). He tweets at @DagErikBerg
Torjus Midtgarden, Professor of Philosophy, University of Bergen, Norway. Midtgarden has specialised on American pragmatism and has written extensively on the philosophy of John Dewey.
References
Ambedkar BR (1989) Annihilation of Caste. In: Moon V (ed.) Dr. Babasaheb Ambedkar Writings and Speeches: Bombay: Education Department, Government of Maharashtra, pp. 23–96.
Berg D-E (2020) Dynamics of Caste and Law: Dalits, Oppression and Constitutional Democracy in India. Cambridge: Cambridge University Press.
Dewey J (1985) Democracy and Education. Vol. 9. In: Boydston JA (ed.) The Middle Works of John Dewey, 1899-1924: Carbondale: Southern Illinois University Press.
Good JA (2006) A search for unity in diversity: The “permanent Hegelian deposit” in the philosophy of John Dewey. Lanham MD: Lexington Books.
Herrenschmidt O (2004) Ambedkar and the Hindu Social Order. In: Jondhale S and Beltz J (eds) Reconstructing the World. B. R. Ambedkar and Buddhism in India: New Delhi: Oxford University Press, pp. 37–48.
Jaffrelot C (2005) Dr Ambedkar and untouchability: analysing and fighting caste. London: Hurst.
Jondhale S and Beltz J (eds) (2004) Reconstructing the world: B.R. Ambedkar and Buddhism in India. New Delhi: Oxford University Press.
Kumar A (2015) Radical Equality: Ambedkar, Gandhi, and the Risk of Democracy. Stanford California: Stanford University Press.
Laclau E (2014) The rhetorical foundations of society. London: Verso.
Maitra K (2012) Ambedkar and the Constitution of India: A Deweyan Experiment. Contemporary Pragmatism 9(2): 301–320.
Marchart O (2018) Thinking antagonism: Political ontology after Laclau. Edinburgh: Edinburgh University Press.
Midtgarden T (2011) The Hegelian Legacy in Dewey’s Social and Political Philosophy, 1915––1920. Transactions of the Charles S. Peirce Society 47(4): 361–388.
Midtgarden T (2012) Critical Pragmatism: Dewey’s social philosophy revisited. European Journal of Social Theory 15(4): 505–521.
Mukherjee AP (2009) B. R. Ambedkar, John Dewey, and the Meaning of Democracy. New Literary History 40(2): 345–370.
Skinner Q (2002) Visions of politics: regarding method, Vol. 1. Cambridge, U.K.: Cambridge University Press.
Stroud SR (2016) Pragmatism and the Pursuit of Social Justice in India: Bhimrao Ambedkar and the Rhetoric of Religious Reorientation. Rhetoric Society Quarterly 46(1): 5–27.
Stroud SR (2017a) What Did Bhimrao Ambedkar Learn from John Dewey’s Democracy and Education? The Pluralist 12(2): 78–103.
Stroud SR (2017b) The like-mindedness of Dewey and Ambedkar. Forward Press, 19 May.
Zelliot E (2001) From untouchable to Dalit: essays on the Ambedkar Movement. New Delhi: Manohar Publishers.

Coronavirus
If the coronavirus is really airborne, we might be fighting it the wrong way

Airborne transmission would mean there are certain solutions we really need to focus on.



Neel V. Patel July 11, 2020

This was the week airborne transmission became a big deal in the public discussion about covid-19. Over 200 scientists from around the world cosigned a letter to the World Health Organization urging it to take seriously the growing evidence that the coronavirus can be transmitted through the air. WHO stopped short of redefining SARS-CoV-2 (the virus that causes covid-19) as airborne but did acknowledge that more research is “urgently needed to investigate such instances and assess their significance for transmission of COVID-19.”

“I honestly don’t know what people are waiting for,” says microbiologist Chad Roy of Tulane University in the US. “It doesn’t take WHO coming out to make a proclamation that it’s airborne for us to appreciate this is an airborne disease. I don’t know how much clearer it needs to be in terms of scientific evidence.”

So what does “airborne” really mean in this context? It’s basically an issue of size. We’re pretty sure that SARS-CoV-2 is spread through tiny droplets that contain viral particles capable of leading to an infection. For a virus to be airborne, however, means a few different things, depending on the expert you’re talking to. Typically it means it can spread via inhalation over long distances, perhaps even through different rooms, of small particles known as aerosols.

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“That’s why when you ask some of the professionals if the virus is airborne, they’ll say it’s not, because we’re not seeing transmission over those sorts of distances,” says Lisa Brosseau, a retired professor of public health who still consults for businesses and organizations.

There is also some debate on what we mean by “aerosol.” The droplets that carry viral particles through the air can come in all sorts of sizes, but while the larger ones will drop quickly to the ground or other surfaces, the smaller ones (just a few microns across) can linger in the air for a while, giving them a chance to be inhaled. The word is mostly used to describe these smaller particles, although Brosseau would prefer the term “aerosol transmission” to cover the entire gamut of inhalable viral particles being expelled into the air—large and small alike.

If SARS-CoV-2 is airborne, it’s far from the only disease. Measles is notorious for being able to last in the air for up to two hours. Tuberculosis, though a bacterium, can be airborne for six hours, and Brosseau suggests that coronavirus superspreaders (people who seem to eject a larger amount of the virus than others) disseminate the virus in patterns that recall the infectiousness of tuberculosis.

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The evidence that this type of transmission is happening with SARS-CoV-2 arguably already exists. Several big studies point to airborne transmission of the virus as a major route for the spread of covid-19. Other studies have suggested the virus can remain in aerosolized droplets for hours. One new study led by Roy and his team at Tulane shows that infectious aerosolized particles of SARS-CoV-2 could actually linger in the air for up to 16 hours, and maintain infectivity much longer than MERS and SARS-CoV-1 (the other big coronaviruses to emerge this century).

We still don’t know what gives SARS-CoV-2 this airborne edge. “But it may be one reason this is a pandemic, and not simply a small outbreak like any other coronavirus,” says Roy.
How to stay safe

Whether the virus is airborne isn’t simply a scientific question. If it is, it could mean that in places where the virus has not been properly contained (e.g., the US), the economy needs to be reopened more slowly, under tighter regulations that reinforce current health practices as well as introducing improved ones. Our current tactics for stopping the spread won’t be enough.

Roy would like to see aggressive mandates on strict mask use for anyone leaving home. “This virus sheds like crazy,” he says. “Masking can do an incredible amount in breaking transmission. I think anything that can promote the use of masking, to stop the production of aerosols in the environment, would be helpful.”

Brosseau, however, says that though masks can limit the spread of larger particles, they are less helpful for smaller ones, especially if they fit only loosely. “I wish we would stop relying on the idea that face coverings are going to solve everything and help flatten the curve,” she says. “It’s magical thinking—it’s not going to happen.” For masks to really make a difference, they would need to be worn all the time, even around family.

Brosseau does believe the evidence is trending toward the conclusion that airborne transmission is “the primary and possibly most important mode of transmission for SARS-CoV-2.” She says, “I think the amount of time and effort devoted to sanitizing every single surface over and over and over again has been a huge waste of time. We don’t need to worry so much about cleaning every single surface we touch.” Instead, the focus should be on other factors, like where we spend our time.
Crowded spaces

One of the biggest questions we still have about covid-19 is how much of a viral load is needed to cause infection. The answer changes if we think it is aerosols that we need to worry about. Smaller particles won’t carry as large a viral load as bigger ones, but because they can linger in the air for much longer, it may not matter—they’ll build up in larger concentrations and get distributed more widely the longer an infected person is around to expel aerosolized virus.

The more people you have coming in and out of an indoor space, the more likely it is that someone who is infected will show up. The longer those infected individuals spend in that space, the higher the concentration of virus in the air over time. This is particularly bad news for spaces where people congregate for hours on end, like restaurants, bars, offices, classrooms, and churches.

Airborne transmission doesn’t necessarily mean these places must stay closed (although that would be ideal). But wiping down surfaces with disinfectant, and having everyone wear masks, won’t be enough. To safely reopen, these spots will not just need to reduce the number of people allowed inside at any given moment; they will also need to reduce the amount of time those people spend there. Increasing social distancing beyond six feet would also help keep people safer.

Ventilation needs to be a higher priority too. This is going to be a big problem for older buildings that usually have worse ventilation systems, and areas with a lot of those might need to remain closed for much longer. The impact of asymptomatic spread (transmission by people who don’t feel ill) and superspreaders only compounds the problem even further. But research conducted by the US Department of Homeland Security has shown that in the presence of UV light, aerosolized particles of the size the Tulane researchers studied would disappear in less than a minute. A number of businesses have begun deploying UV-armed robots to disinfect hospital rooms, shopping malls, stores, public transit stations, and more.

For many places, considerable delays in economic reopening might ultimately be the price of getting the virus under control. Otherwise the kind of thing that happened when a single open bar in Michigan led to an outbreak of more than 170 new cases could become commonplace.

For Brosseau, the best strategy is simply to behave as we did in the early days of lockdown—stay home, and avoid coming into contact with anyone you don’t live with. And if you have to leave home, she says, “all I can say is spend as little time as possible in an enclosed space, in an area that’s well ventilated, with as few people as possible.”

The Supreme Court of the United States has barely had time to gather its collective breath this last few days.  Among its decisions, including those dealing with President Donald Trump’s financial records, was that of McGirt v Oklahoma. The case furnishes a detailed discussion on the extent Native American self-governance survived the assaults of the US Congress and the creation of the State of Oklahoma in 1907.
The Creek (Muscogee) Reservation itself arose from circumstances of predation and cruelty.  Forcibly relocated from Georgia and Alabama, “the Creek nation,” wrote Justice Neil Gorsuch, “received reassurances that their new lands in the West would be secure forever.  In ceding their land East of the Mississippi River, a pledge by the 1832 treaty was made that the “Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.”
By the narrowest of decisions, the court found 5-4 against the state of Oklahoma.  The state authorities had claimed that the Creek Reservation did not survive the “allotment era” and had been “disestablished”.  Jimcy McGirt, convicted by an Oklahoman state court of three sexual offences that had taken place on the Creek Nation Reservation in the north-eastern part of the state, had claimed otherwise.  As a member of the Seminole Nation, he submitted in post-conviction proceedings that the State lacked jurisdiction to prosecute him.  The relevant statute was the federal Major Crimes Act, which provided that, within “the Indian country”, any Indian committing certain offences “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States”.  His initial effort to seek a new trial in federal court failed, leading to the Supreme Court petition.
That period of central government nastiness in the late nineteenth century known as the “allotment era” had a purpose common to other frontier societies: the assimilation of the native intransigents through means designed to wean them off their traditional customs.  As the zealous Captain Richard Pratt opined in 1892, the United States needed to “kill the Indian in him, and save the man.”  Enough with the physical massacres; what was needed was a concerted effort to Americanize and civilise, a form of spiritual genocide.  Pratt envisaged doing so through education, including the US Training and Industrial School he founded in 1879 at Carlisle Barracks in Pennsylvania.  Out with the “savage” habits: tribal language, identity and long hair; in with the new American, albeit a stunted one with his nerves extracted.  Such education was to be rudimentary or, in the words of President Teddy Roosevelt, “very, very limited.”
In terms of property, the allotment era was trumpeted by the passage of the Dawes Act of 1887, also known as the General Allotment Act.  This entailed breaking up tribally owned reservations and allocating them to individual households, though the process came with a nasty catch: such divided land would initially be held in trust; Native American households would have to prove their competence in exercising full “fee simple” property rights.  The result, in many instances, was also the selling of Indian land to non-Indian purchasers.
In his address to Congress in 1901, Roosevelt gave his boisterous assessment of the statute.  “The General Allotment Act is a mighty pulverizing engine to break up the tribal mass.  It acts directly upon the family and the individual.” The Act had enabled sixty thousand Indians to become US citizens.  It was now essential, Roosevelt suggested, to “break up the tribal funds, doing for them what allotment does for tribal lands; that is, they should be divided into individual holdings.”
The majority, ruling in favour of McGirt, affirmed that the land in question remains a reservation that gives the federal government exclusive jurisdiction over crimes committed on it.  In doing so, the court also confirmed the continuing existence of a reservation stretching some 19 million acres including eight counties and most of Tulsa.
In their skirt through the legislative record, the majority found no statute “evincing anything like the ‘present and total surrender of all tribal interests’.”  The transfer of individual plots, whether to Native Americans or others, “did not disestablish the reservation”.   A body of statutes and treaties over time confirmed the legal standing of the Creek Reservation.  The majority rebuked the argument that States had claimed powers “to reduce federal reservations within their borders”.  To imagine such a power would enable States to “encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States.”  Despite various efforts by Congress to intrude upon Creek self-governance, these were not sufficient to suggest disestablishment.  “Oklahoma and the dissent have cited no case in which this Court has found a reservation disestablished without first concluding that a statute first required that result.”
Chief Justice John Roberts, who managed to avoid being in the majority in all 5-4 court decisions this term, was glum about the consequences.  The decision was a torch taken to state governance.  “Across the vast area, the State’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out.  On top of that, the Court has profoundly destabilized the governance of eastern Oklahoma.”  The majority judgement had also created “significant uncertainty for the State’s continuing authority over any area that touches Indian affairs, ranging from zoning and taxation to family and environmental law.”
Roberts further bristled at the idea that Congress needed to be wordily explicit in terminating a reservation, having “made abundantly clear its intent to disestablish the Creek territory”.  Just look at the historical record, the chief justice urged.  Congress “supplanted the Creek legal system with a legal code and court system that applied equally to Indians and non-Indians.”  It “systematically dismantled the governmental authority of the Creek Nation, targeting all three branches.”  It “destroyed the foundation of sovereignty by stripping the Creek Nation of its territory.”
Justice Gorsuch, in his judgment for the majority, had little time for such worries.  To suggest an army of inmates rushing to seek new trials in federal courts was “admittedly speculative, because many defendants may choose to finish their state sentences rather than risk prosecution in federal court where sentences can be graver”.  Besides, no actual intention to terminate the legal standing of the Creek Reservation could ever be found.
In all the excitement, it would have been easy to have overlooked the predecessor case of Sharp v Murphy, in which the court heard argument on the same question as that of McGirt.  The case stalled in its tracks in 2018 as Gorsuch had recused himself, having served on the 10th circuit of the US Circuit Court of Appeals, comprising Oklahoma.  Instead of going through re-arguments there, Sharp was restored to this calendar term and duly decided in favour of the inmate Patrick Murphy “for the reasons stated in” McGirt.  Murphy had also committed his crime within the boundaries of the Creek Nation.
Having anticipated the decision, somewhat, Oklahoma Attorney General Mike Hunter, along with all Five Tribes affected by the decision, including the Cherokee, Chickasaw, Choctaw, Seminole Nations, issued a statement committing the parties “to ensuring that Jimcy McGirt, Patrick Murphy, and all other offenders face justice for crimes for which they are accused.  We have a shared commitment to maintaining public safety and long-term economic prosperity for the Nations and Oklahoma.”
The decision of McGirt masks the crude realities of institutional, colonial violence.  It perpetuates an illusion, a discredited understanding between Native American nations and the US federal government.  That was the lingering “promise”, as Gorsuch claims, “[o]n the far end of the Trail of Tears”, one that was never kept.  Chief Justice Roberts was very much on to it.  In letting the cat out of the bag on Native American-Indian relations, he suggested that Congress had acted in a manner entirely inconsistent with preserving any semblance of Creek sovereignty.  We are left with the Native American Indian in confused legal dress, trampled, abused, deceived by history but with only a symbolic heartbeat.
Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com
The U.S. Supreme Court ruled Thursday that about half of the land in Oklahoma is within a Native American reservation. The court ruling will have major consequences for both past and future criminal and civil cases in the U.S.
The U.S. court’s ruling hinged on the question of whether the Creek reservation continued to exist after Oklahoma, one of the 50 states constituting the United States, became a state.
The case was steeped in the U.S. government’s long history of brutal removals and broken treaties with Indigenous tribes, and grappled with whether lands of the Muscogee (Creek) Nation had remained a reservation after Oklahoma became a state.
“Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of fed­eral criminal law. Because Congress has not said otherwise, we hold the government to its word,” Justice Neil Gorsuch wrote in the majority opinion.
The decision was 5-4, with Justices Gorsuch, Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer in the majority, while Justices John Roberts, Brett Kavanaugh, Samuel Alito and Clarence Thomas dissented.
Some 1.8 million people, of whom about 15% are Native American, live on the land, which spans three million acres.
The ruling will have significant legal implications for eastern Oklahoma. Much of Tulsa, the state’s second-largest city, is located on Muscogee (Creek) land. The Muscogee (Creek) Nation cheered the court’s decision.
Dissenting opinion
In a dissenting opinion, Chief Justice John G. Roberts Jr. wrote that the decision “will undermine numerous convictions obtained by the State, as well as the State’s abil­ity to prosecute serious crimes committed in the future,” and “may destabilize the governance of vast swathes of Oklahoma.”
John G. Roberts Jr. warned in a dissenting opinion that the court’s decision would wreak havoc and confusion on Oklahoma’s criminal justice system.
“The state’s ability to prosecute serious crimes will be hobbled and decades of past convictions could well be thrown out,” Chief Justice Roberts wrote. “On top of that, the court has profoundly destabilized the governance of eastern Oklahoma.”
The ruling has a number of significant consequences for criminal law in the relevant portion of Oklahoma.
The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said Washburn.
Then there is the issue of past decisions — many of them are now considered wrongful convictions because the state lacked jurisdiction. A number of criminal defendants who have been convicted in the past will now have grounds to challenge their convictions, arguing that the state never had jurisdiction to try them.
The case before the court, McGirt v. Oklahoma, concerned Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma who was convicted of sex crimes against a child on Creek land. In post-conviction proceedings, McGirt argued that the state lacked jurisdiction in the case and that he must be retried in federal court. The high court agreed.
The ruling will affect lands of the Muscogee and four other Oklahoma tribes with identical treaties. Civil court issues are also affected.
Jurisdiction, not land ownership
It is important to note that the case concerned jurisdiction, not land ownership.
Ruling that these lands are in fact reservations “doesn’t mean the tribe owns all the land within the reservation, just like the county doesn’t own all the land within the county. In fact, it probably doesn’t own very much of that land,” said Kevin Washburn, dean of the law school at the University of Iowa, where he teaches a course on federal Indian law, explained. “That’s not what a reservation is these days.”
Washburn compares a reservation to a county — terms that describe jurisdictional boundaries.
Oklahoma Attorney General Mike Hunter released a joint statement with the Muscogee (Creek), Cherokee, Chickasaw, Choctaw and Seminole nations on Thursday, indicating that they “have made substantial progress toward an agreement to present to Congress and the U.S. Department of Justice addressing and resolving any significant jurisdictional issues.”
Ian Heath Gershengorn, an attorney at Jenner & Block, argued McGirt’s case before the Supreme Court. He said his team was thrilled with the result and had felt optimistic knowing that Gorsuch could prove to be the deciding vote.
Gorsuch joined with the court’s more liberal members in the decision. Prior to his appointment to the high court, Gorsuch was a judge on the 10th U.S. Circuit Court of Appeals, which frequently sees cases involving Native American lands.
“Justice Gorsuch has made very clear in his short time on the bench that he takes the text deeply seriously,” Gershengorn said. “And I think you saw that the core of his analysis today was a textual one. We felt like we had the right argument at the right time for the right justice.”
The court decision, potentially one of the most consequential legal victories for Native Americans in decades, could have far-reaching implications for the people who live across what the court affirmed was Indian Country.
The decision puts in doubt hundreds of state convictions of Native Americans and could change the handling of prosecutions across a vast swath of the state. Lawyers were also examining whether it had broader implications for taxing, zoning and other government functions. But many of the specific impacts will be determined by negotiations between state and federal authorities and five Native American tribes in Oklahoma.
Establish sovereignty
“The Supreme Court today kept the United States’ sacred promise to the Muscogee (Creek) Nation of a protected reservation,” the tribe said in a statement. “Today’s decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries.”
An extraordinary time
The ruling comes at an extraordinary time for Native Americans.
They are being ravaged by the coronavirus both in the soaring numbers of cases and deaths and the economic distress caused by closed casinos. But at the same moment, the U.S.-wide movement to confront systemic racism has infused new energy and attention to generations-long fights by tribal nations and Indigenous activists over land, treaty rights and discrimination.
In the past few weeks, tribal activists garnered international attention after they blocked the roads outside Mount Rushmore to condemn President Trump’s visit to what they called stolen lands. They won a fight to shut down an oil pipeline that crossed sacred ground in North Dakota. In the face of growing pressure from corporate sponsors, the Washington Redskins of the N.F.L. recently promised to re-evaluate their team name, which activists have denounced for years as racist.
On social media, people celebrated Thursday’s decision with the declaration Native Lives Matter.
Earlier, the Justice Department raised concerns about how federal prosecutors would cope with a new onslaught of cases they would be suddenly responsible for investigating. Lawyers were parsing whether the decision might affect taxes, adoption or environmental regulations on the reservation lands.
But experts in Indian law said the decision’s effects would be more muted, and would change little for non-Natives who live in the three-million-acre swath of Oklahoma that the court declared to be a reservation of the Muscogee (Creek) Nation.
“Not one inch of land changed hands today,” said Jonodev Chaudhuri, ambassador for the Creek Nation. “All that happened was clarity was brought to potential prosecutions within Creek Nation.”
Jonodev Chaudhuri, also a former chief justice of the Muscogee Nation’s Supreme Court, dismissed talk of legal mayhem.
He told the Tulsa World newspaper: “All the sky-is-falling narratives were dubious at best.
“This would only apply to a small subset of Native Americans committing crimes within the boundaries.”
The decision could have far-reaching implications on tribes beyond the reservation boundaries in eastern Oklahoma.
McGirt argued that Congress had created the reservation and had never clearly destroyed the sovereignty of the Creek Nation over the area, even as much of the land was parceled off to private ownership.
Forced relocation
Justice Gorsuch’s opinion, tracing that history, began: “On the far end of the Trail of Tears was a promise.” The reference is to the forced relocation of some 100,000 Native Americans from their home in the Southeast in the 1800s.
The opinion said that the promise was that Congress had guaranteed the Creek land for a permanent home in what became Oklahoma in exchange for forcing them from their ancestral lands in Georgia and Alabama during the 1830s.
The court was faced with the question of whether lands of the Muscogee (Creek) Nation had remained a reservation after Oklahoma became a state and the tribe’s lands were fractured and sold off and its powers of self-governance were attacked by Congress.
Some Indigenous activists and lawyers said they were not surprised that Justice Gorsuch had broken with his fellow conservatives.
On the court, he had provided the pivotal vote in favor of Indigenous rights in cases dealing with a Native American cited for illegal hunting in Wyoming, and about fuel taxes imposed on a business owned by a member of the Yakama Nation.
“Reading it, the understanding of what has happened to our people was nice to see acknowledged at this level of the government,” said Sarah Deer, a lawyer and a professor at the University of Kansas, who is also a citizen of the Muscogee (Creek) Nation. “It’s not something we’ve seen from the court very often. It has a lot of meaning.”
Legal scholars
Some legal scholars said that Justice Gorsuch did not favor the tribes, but had simply adhered to the language of the treaties. For generations, tribes have been asking the U.S. to honor the written agreements they made.
Kevin Washburn said: “It’s basically 15 weeks of how the law in the United States has failed my people.”
He served as assistant secretary of Indian affairs from 2012 to 2016, and he is a citizen of the Chickasaw Nation of Oklahoma. He called the court’s ruling “a great decision.”
“For Indian people, their land is really important, and treaties are really important. They are sacred. And this reaffirms the sacredness of those promises and those treaties.”
“Now and then there is a great case that helps you keep the faith about the rule of law,” he said. “And this is one of those.”
Lindsay Robertson, who teaches federal Indian law at the University of Oklahoma College of Law, said Justice Gorsuch did just that: “It does not matter that a million-plus non-Indians live there now. It does not matter that the state of Oklahoma has been acting as if it were subject exclusively to state jurisdiction. What matters is what the language said.”
In arguing against the tribes, the solicitor general of Oklahoma took the opposite view, saying during arguments in May that “it was never reservation land, and it’s certainly not reservation land today.”
The case, McGirt v. Oklahoma, No. 18-9526, an appeal from a state court’s decision, was the Supreme Court’s second attempt to resolve the status of eastern Oklahoma.
In November 2018, the justices heard arguments in Sharp v. Murphy, No. 17-1107, which arose from the prosecution in state court of Patrick Murphy, a Creek Indian, for murdering George Jacobs in rural McIntosh County, east of Oklahoma City.
After he was sentenced to death, it emerged that the murder had taken place on what had once been Indian land. Murphy argued that only the federal government could prosecute him and that a federal law barred the imposition of the death penalty because he was an Indian.
Murphy and McGirt are expected to be retried in federal court. Legal experts said that other Indigenous people who had been prosecuted by the state for crimes on Creek land would have to ask federal courts to review their cases.
The war continues
Madonna Thunder Hawk, an organizer with the Lakota People’s Law Project, said the court’s decision and a recent federal ruling that ordered the shutdown of the Dakota Access Pipeline in North Dakota had been cause for celebration. Just not too much.
“It’s a war for us,” she said. “There are some victories, but the war continues.”
The Trail of Tears
The Trail of Tears is the forcible 19th Century relocation of Native Americans, including the Creek Nation, to Oklahoma. The U.S. government said at the time that the new land would belong to the tribes in perpetuity.
The rape case
The ruling overturned McGirt’s prison sentence. He could still be tried in federal court. McGirt, now 71, was convicted in 1997 in Wagoner County of raping a four-year-old girl. He did not dispute his guilt before the Supreme Court, but argued that only federal authorities should have been entitled to prosecute him. McGirt is a member of the Seminole Nation.
An analysis by The Atlantic magazine of Oklahoma Department of Corrections records found that 1,887 Native Americans were in prison as of the end of last year for offences committed within the boundaries of the tribal territory.
But fewer than one in 10 of those cases would qualify for a new federal trial, according to the research.
Other tribes
In a joint statement, the Five Tribes of Oklahoma – Cherokee, Chickasaw, Choctaw and Seminole and Muscogee Nation – welcomed the ruling.
They pledged to work with federal and state authorities to agree shared jurisdiction over the land.
“The Nations and the state are committed to implementing a framework of shared jurisdiction that will preserve sovereign interests and rights to self-government while affirming jurisdictional understandings, procedures, laws and regulations that support public safety, our economy and private property rights,” the statement said.
Muscogee leaders hailed the decision as a hard-fought victory that clarified the status of their lands. The tribe said it would work with state and federal law enforcement authorities to coordinate public safety within the reservation.
“This is a historic day,” Principal Chief David Hill said in an interview. “This is amazing. It’s never too late to make things right.”
“This brings these issues into public consciousness a little bit more,” said John Echohawk, executive director of the Native American Rights Fund, a nonprofit organization that has spent five decades fighting for issues like tribal sovereignty and recognition. “That’s one of the biggest problems we have, is that most people don’t know very much about us.”

Morality: The Lust For Pleasure -The Case of Peter Kropotkin

iLife/Philosophy — by Milan Djurasovic — October 23, 2016


According to N. Lebedev, Kropotkin’s editor with whom he frequently corresponded both in person and through letters, two central reasons prompted the celebrated anarchist to devote the last years of his life to writing about the fundamental questions of ethics. The last decade of the nineteenth century saw an influx of ideas about the relativity of ethical conduct and even its obsolescence, particularly in the a-moralist and deeply individualist interpretation of Friedrich Nietzsche’s philosophy.[1] Russian literature of the mentioned period is replete with Nietzschean influences and extremely subjective and individualist themes (the abstract ideas of Helena P. Blavatsky and Nicholas Roerich, the obsession with the notion of fin de siècle of many artists and Symbolist writers such as Alexander A. Blok and Andrei Bely, the preoccupation with eternal life, the overbearing fear of the looming Asiatic invasion, etc.). Additionally, a number of predominantly English influential thinkers and scientists had isolated and focused only on the Malthusian aspects of Darwin’s theory of natural selection (intraspecific competition and overpopulation), and had manipulated these ideas to justify the brutal conquests of foreign lands as well as the extreme economic inequality in their own country.[2]

Noticing the signs of approaching death, Kropotkin set out to write a book that would extract and highlight the foundation of moral behavior, a book that would serve as a reliable guide and inspiration for people in their daily conduct, and a book that would delineate the harmful consequences of seeking moral guidance in mysticism, religion, and the apocryphal conclusions of social Darwinists. Such a book would serve as a clarification of moral goals, which was especially needed at the time when human thought was going back and forth from Nietzsche to Kant. Kropotkin was adamant in his belief that ethics ought to be a concrete scientific discipline, a distinct study that had to distance itself from the unconfirmed claims and teachings of religion and/or metaphysics. But just as dangerous were the views of those scientists (e.g. Thomas R. Malthus and Thomas H. Huxley) whose reasoning was muddled due to their inability to zoom out of their surroundings and shield their judgment from the cultural influences and traditional ways of interpreting information.

After analyzing the discoveries of his scientific research as well as careful observations of everyday life, Kropotkin arrived at the conclusion that individualism leads to psychological alienation and physical isolation, consequences that have a negative impact on the development of one’s physical and mental faculties. Moreover, Kropotkin set out to demonstrate that nature was not a-moral but quite the opposite, “that morality constitutes the natural product of the evolution of social life not only of man, but of almost all living creatures, among the majority of which we find the rudiments of moral relations.”[3]



After a meticulous study of the major works of Western philosophy, starting with the ancient Greek philosophers and ending with his own contemporaries, Kropotkin concluded that there are three elements of moral conduct without which a society cannot claim to care about ethics, and they are: mutual aid/cooperation, justice/equity, and self-sacrifice. It is only with the full realization of these elements that a society can create an atmosphere in which the optimal physical and intellectual development of an individual can take place. If any of the three elements is neglected, the society is not going to possess the necessary foundation for the best possible development of its inhabitants and therefore deserves to be criticized and altered. I believe that this is the essential idea of Kropotkin’s revolutionary thought and it will be elaborated later on in this article. I will only add that Kropotkin’s support for resistance against any form of authority is based on the idea that the very existence of authority automatically neglects at least one of the mentioned principles, that of justice/equity.

Kropotkin believed that science has infused man (at least those who engage in it and understand it) with modesty by revealing that he/she is a tiny speck in a vast universe. It has taught him that a single individual, regardless of his/her intelligence and strength, cannot achieve anything on his/her own, but that with others, the advancement of knowledge can guide him/her in his/her march forward. In other words, scientific discoveries ought to be used for the benefit of all. Since exploitation and manipulation of the masses by a minority continued after the Russian Revolution, Kropotkin set out to write about a branch of knowledge which he thought trailed behind all other scientific advances so that it can “give to the civilized nations the inspiration required for the great task that lies before them.”[4]

Kropotkin judged all ethical theories based on the extent to which they emphasized the importance of mutual aid, justice, and self-sacrifice. He admonished those philosophers who ignored these three components and he lauded those who stressed their significance. In his work on ethics, Kropotkin traces the teachings of various schools of Western ethical thought, explains their evolution and what new contributions they brought to the field of moral principles, and elaborates on the essential points they neglected. To summarize Kropotkin’s critiques of each philosopher he wrote about would be an unproductive digression, primarily because each critique points in the direction of the same conclusion: that mutual aid, justice, and self-sacrifice are the three indispensable principles of moral conduct. Each school of moral thought and each philosopher are judged by the extent to which they emphasized the significance of these three principles. Kropotkin lauds some philosophers for abandoning religious and metaphysical explanations of the origin of moral conduct and for seeking answers in the natural world. However, Kropotkin writes that since these great minds perished before they were able to witness the major scientific discoveries of the nineteenth century, most of them could only hint at but not fully explain the origin of morality and the roles that mutual-aid, justice/equity, and self-sacrifice had played in the evolution and progress of the humankind.

According to Kropotkin, a great number of Western philosophers had correctly hinted at the symptoms of moral feelings in human beings, but they had failed to elaborate on the origin of these symptoms. He writes that throughout different historical periods philosophers and scientists tried to explain the origin of the moral instinct; however, most of them, due to the lack of knowledge of natural sciences, have either wrongfully attributed the existence of moral behavior to some kind of divinity (e.g. Lev N. Tolstoy’s religious convictions) or a metaphysical construct (e.g. Immanuel Kant’s “Categorical Imperative” or Arthur Schopenhauer’s philosophy of the “Will”) or, in the case of those who attempted to secularize the study of moral behavior by seeking answers in nature, many had not fully explored the question or were overly influenced by the cultural and political events of their day (e.g. Kropotkin thought that Thomas Hobbs’ concept of “Social Contract” was apocryphal due to the omission of the fact that human beings are and have always been social creatures).

Because each new system either took away or added a new element that had been omitted in the previous systems, according to Kropotkin, the study of ethics is an open-ended domain that ought to continuously acquire new elements as humanity enters and goes through new stages of development. The rise of the late 19th century mystico-religious idealism served as proof that previous ethical systems with a positivist foundation had failed to inspire the masses. Instead of science, the source of all reliable knowledge, the new generation of writers and intellectuals had returned to St. Bernard and Neo-Platonism, and had placed “symbolism” and the “incomprehensible” above the concrete and observable.[5] A different cluster of intellectuals bought into the idea of “superior natures,” or “superior individualization”. Then there were the Darwinists who tried to justify the status quo by emphasizing competition and struggle and completely disregarding another aspect “of another set of facts, parallel to those of mutual struggle, but having a quite different meaning: the facts of mutual support within the species, which are even more important than the former, on account of their significance for the welfare of the species and its maintenance.”[6]

In a pamphlet titled Anarchist Morality, Kropotkin succinctly explains the origin of moral instinct, and this elucidation, I believe, sheds light on his decision to support those who resorted to assassinations and other violent tactics in their revolutionary struggle. Kropotkin believed that moral sense which steers our conduct is instinctive. The moral instincts could be dulled and remain dormant for a long time, but as soon as a favorable opportunity for their reawaking presents itself, as soon as one encounters an example of valor, those moral instincts undergo an unconscious stimulation.

Kropotkin believed that both moral and immoral acts “arise from a single motive: the lust for pleasure.”[7] A man/woman who drinks, robs, murders, or commits some other kind of offense does so because at that moment he/she is either attempting to augment his/her life with momentary pleasure or to expel from it undesirable pain. Similarly, a man/woman who gives his/her only clothes to a fellow human being freezing on the street, he/she does so because it pains them more to see another man suffering than to endure the chill. In both cases each man/woman acts because their deed brought them pleasure or spared them suffering, but “so vastly different for humanity are the results of these two lives; so much do we feel ourselves drawn towards the one and repelled by the other.”[8] Kropotkin then explains that benevolence is the most rewarding feeling there is and that those who help, even if they were to be executed for their actions, would not exchange their lives “for the life of the petty scoundrel who lives on the money stolen from his work-people.”[9] Kropotkin writes that in their struggle, the martyrs feel the highest joy: the inward peace that one feels after rectifying a previously caused harm or preventing an act of injustice.

“Without this quest of the agreeable, life itself would be impossible. Organisms would disintegrate, life cease.”[10] The innate, contagious, and uncontainable urge to deter injustice was the reason why revolutionaries frequently chose the path that led to death, both their own and of those they regarded as tyrants. Many of them, due to the lack of opportunity to devise more effective means of resistance, never clearly articulated or understood what it was that compelled them to put their lives in peril for the sake of people they had never met. Kropotkin was well aware that haste and confusion comprise a significant part of any insurrection. During this period rational thinking and thoroughly planned decisions are often unfeasible. Some revolutionaries rush into action without consulting their peers; they inconsiderately hurl bombs and aim their revolvers at people they regard to be symbols of oppression. They blunder and often are responsible for unnecessary suffering. While Kropotkin was critical of such acts, he was generally forgiving of those who carried them out because he understood the circumstances in which the revolutionaries made their decisions. Moreover, and most importantly, Kropotkin thought that their actions stemmed from a moral impulse, and for this reason, he was unable to categorically condemn them.

This is precisely how Peter Kropotkin viewed the actions of Sophia L. Perosvkaya and other members of Narodnaya Volya who participated in the orchestration of the assassination of the Emperor of Russia. Kropotkin believed that the assassination was not a useful act because it was clear that the majority of Russian people would condemn it. However, Kropotkin believed that the general public did not emphatically denounce Perovskaya and other Pervomartsovtsy because it was clear to everyone that “not for all the gold in the world would Perovskaya and her comrades have consented to become tyrants themselves.”[11] What prompted Perovskaya to organize the assassination of the Russian Emperor was not glory, material wealth or some other personal advantage. According to Kropotkin, who had personally known her during the time he spent in the circle of Tchaykovsky, it was her sincere aversion of tyranny that led her to the conclusion that regicide was morally permissible. Kropotkin believed that “the right to kill must be conquered.”[12] What he meant by this is that a revolutionary ought to completely adhere to the moral principles described in this article. Only when one accepts that equality in everything, sympathy and mutual aid in times of joy and sadness are the principles to be followed do they earn the right to criticize and overthrow those who reject these same principles.

In various places in his writings on morality, Kropotkin stresses the importance of the age-old moral guide better known as the Golden Rule: “Do to others what you would have them do to you in the same circumstances.”[13] At this point one might ask whether those revolutionaries who used explosives to tear apart the Russian Emperor were breaking their devotion to the just mentioned principle. Kropotkin anticipated this inquiry and he answered it in the following way: “Any man with a heart asks beforehand that he may be slain if ever he becomes venomous; that a dagger may be plunged into his heart if ever he should take the place of a dethroned tyrant.”[14] Kropotkin believed that those who wish to oppress automatically forfeiting the right to be treated with compassion. The masses do not condone such hypocrisy, and only those who are fighting for equality for everyone everywhere have the moral standing to lead, not by accumulating wealth or climbing the socioeconomic ladder, but by practicing comprehensive egalitarianism.

Milan Djurasovic is a Bosnian American collage artist, blogger, and a book author. He currently lives and works in St. Petersburg, Russia. His educational background is in psychology and history. He can be reached via Face Book https://www.facebook.com/milan.djurasovic

[1] N. Lebedev, Introduction by the Russian Editor (London: George E Harrap Co, Ltd., 1924), pp. iii-ix, http://dwardmac.pitzer.edu/Anarchist_Archives/kropotkin/ethics/intro.html (accessed 2 December, 2014).

[2] Ibid.

[3] Ibid.

[4] Peter Kropotkin, Ethics: Origin and Development (London: George E Harrap Co, Ltd., 1924), pp.11, http://dwardmac.pitzer.edu/Anarchist_Archives/kropotkin/ethics/intro.html (accessed 5 December, 2014).

[5] Ibid., pp. 15.

[6] Ibid., pp. 16.

[7] Peter Kropotkin, Anarchist Morality, pp. 84.

[8] Ibid., pp. 86.

[9] Ibid.

[10] Ibid., pp. 88.

[11] Ibid., pp. 100.

[12] Ibid., pp. 101.

[13] Ibid., pp. 92.

[14] Ibid., pp. 100.

KROPOTKIN ETHICS AND MORALITY HARDCOVER PDF
https://rowlandpasaribu.files.wordpress.com/2013/09/pc3abtr-kropotkin-ethics.pdf

COMMENT
K SHESHU BABU
October 23, 2016 at 5:20 pm

The works and thoughts of Kropotkin have been elaborately dealt in these essays. The anarchist principles based mainly on morality should be analysed in modern context and applied to specific situations

The teachings of Kropotkin are valid even in modern day world. The elaborate discussion of his life and works would go a long way in understanding him in historical perspective.