One area that could receive more attention from libertarian theory is international law. On occasion I’ll see some crank libertarians rail about international law, and this always puzzles me. Unlike modern municipal (national) legal systems–common law, civil law–that have been ever more corrupted by an unending wave of legislation (see my Legislation and the Discovery of Law in a Free Society), international law remains relatively decentralized and based on more or less general principles of justice–more like the original common law, ancient Roman law, and the Law Merchant.
Modern municipal law has become basically positivistic. The main arguments open to people to challenge a given unjust law are more or less technical argumented based on the pre-existing rules of the game. Or, as Belgian libertarian law professor Frank Van Dun writes, under modern law, it is increasingly the case that
the point of argumentation in a court no longer is to reveal which actions are justifiable and which are not but merely to determine which party complied with some set of arbitrary politically imposed rules. Then argumentation gives way to a contest in which one “legal mind” tries to outwit his opponent in a game that turns primarily on one’s skils in combining officially recognized legal classifications of facts, legal rules, and other legal data as precedents, and currently fashionable notions into a “strong case.”
Sure, advocates employ moral suasion, but that is more to try to persuade a judge or jury to act where there is a gap in the law or confusion or a gray area, or to construe a broader provision such as some of those in the American Constitution. But the role of normative discourse is, technically, irrelevant. Even if one could somehow establish, in court, that a given statute is “unjust,” that does not mean that the judge won’t enforce it. There is no “injustice” exception in modern statutory law.One promising aspect of international law, by contrast, is that it is much more normative than conventional municipal legal systems, and more subject to hortations of commentators, who are more free to insert common sense moral intuitions.
In fact, Article 38(1) of the 1946 Statute of the International Court of Justice, generally recognised as a definitive statement of the sources of international law, specifically refers to “the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. Now this is not the primary source of international law. The writings of publicists is supposed to be only evidence of what the rules of international law are, and are only a “subsidiary means” of determining what the law is, but as the renowned international law expert Ian Brownlie as noted, “in some subjects individual writers have had a formative influence,” and despite some publicists trying to influence what the law should be rather than “providing ap assive appraisal of the law” (which Brownlie seems to frown upon), “the opinions of publicists are used widely.” Now imagine if our legal system included this as a “source of law”! At least we would have a fighting chance.
And the other sources of international law are not so bad either, compared with those in municipal legal systems, which is basically the will of the state or the majority as decreed by the state. These other sources include international conventions, international custom, and the general principles of law recognized by civilized nations. What are the “general principles of law recognized by civilized nations”? — things like, don’t murder, don’t steal (don’t initiate war); cooperate (treaties); respect others’ property (“sovereignty”); respect your agreements (pacta sunt servanta–agreements/treaties are to be abided by; etc.. It tends to say to belligerent states: your act of war is unjustified; protect civilians; etc. As noted above, international law is more akin to the ancient law merchant, roman law, and common law, which was less corrupted by state’s influence than is modern municipal law (i.e., the law of given states).
Of course international law it has been corrupted to some degree by the UN’s manipulations, but on the other hand, it to some degree even in its imperfection serves as an institutional impediment to the imperialistic aims of any one state. And it is much more based on sound principles of justice compatible with libertarianism than modern legal systems have become, precisely because it is not dominated by legislation and enactments.
Now, the sources of international law may not make it exactly synonymous with libertarian utopian dreams, but imagine if our modern states were held to such standards! Most of modern statutory law would not be able to withstand scrutiny. And since a primary basis of international law is “general principles of law recognized by civilized nations” rather than what a particular provision of a statute such as, say, the Americans with Disabilities Act, then the moral or normative opinions of commentators is likely to be more relevant. In this sense international law is more similar to a genuine common law system than today’s statute-dominated systems. In a trial in which the judge is trying to do justice, it actually might be somewhat relevant, and maybe not even futile, to point out that it would be, well, unjust to rule a certain way. Whereas, even where legal experts are consulted to find out what the law is in a modern trial, the question is almost always what is the meaning of given statute, which itself is often not just in the first place.
Hell, Art. 38 even permits the ICJ to decide a case ex aequo et bono (according to fairness, or equity–what is “right and good”) if the parties agree. Even in a private case between two parties in today’s legal system, the court can’t agree to this; at most, the parties can resort to private arbitration to achieve get a hearing based more on equity and justice than on statutory law (but even here, it can’t stray too far from what the state’s courts regard as “public policy,” or the courts won’t enforce the arbitral decision).
Having the opinions of “the most highly qualified publicists” enter into the picture as one authorized possible source of law would be a vast improvement over today’s system–even if we grant that most law professors and academics are somewhat leftist. It is still the case that the policies favored by even conventional legal scholars, which at least sometimes take into account of simple moral intuitions, are far superior to those that tend to be embodied in state-enacted statutes. Such commentators are often anti-torture and anti-war, for example.
For these reasons I would say that international law tends to be more general and more consistent with libertarian general principles than municipal law, certainly modern statutory law.
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I was spurred to do this post when I received today the article An Empire of Law?: Legalism and the International Criminal Court from the author, Ole Miss law professor Ronald Rychlak, with whom I’ve corresponded in the past. He seems to be fairly libertarian–see his previous correspondence with me, in which he was receptive to my defense of libertarian rights; he told me his co-author, John M. Czarnetzky, is big into Austrian economics and Rychlak also majored in economics, with Benjamin Rogge as a major influence–plus, his article rightly opposes the International Criminal Court. He concludes:
The quest to end impunity in human affairs and to punish those who commit gross violations of human rights is a noble cause that will, hopefully, one day bear fruit. History teaches, however, that the devil can dwell in the details of the most nobly intended institutions. The ICC [International Criminal Court], as it was designed in the Rome Statute, is a flawed institution which contains the seeds of the Court’s eventual desuetude or worse, of causing greater harm than the crimes it was intended to redress. …An effective international tribunal, one which will do most of the good that its proponents posit for the ICC, cannot rest upon an unbridled faith in legalism. With the ICC, however, the yearning for an end to human-rights abuses has led a significant portion of the international community to look only toward mechanistic legalism, enforced by an unaccountable court. In doing this, the ICC is essentially imposing the “unconditional surrender” model of Nuremberg on all future transitional societies. No room is left for political compromise. This, of course, means that the ICC is taking some potential tools for peace off of the table. That is a dangerous thing to do.
Law itself is an instrument of politics, and therefore does not transcend human beings and our foibles. Though it is unfashionable to assert, humans have no choice but politics when we discuss just resolutions of difficult situations. Put differently, the fallible human beings who will run the ICC, though garbed in the mantle of positive law derived from noble human-rights norms, will still just be human beings. If history teaches anything, it is that human beings with unchecked, absolute power will eventually abuse that power. In the case of an international tribunal with the power decisively to affect the future of entire peoples, the stakes are far too high to deny such a truth learned through so much hardship over the centuries.
Rarely are law professors so sensible about the danger of centralized power. (And see also Michael S. Rozeff’s LewRockwell.com article, To Back the International Criminal Court or Not?.)
For more international-law related commentary for libertarians with an interest in this:
- my Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It. Lady Higgins, formerly a law professor (whom I studied under at the London School of Economics) is now Judge (and, as of 2006, President) of the International Court of Justice; her book is a fascinating and lively read for any student of legal theory or international law
- Alan Watson, The Importance of “Nutshells” (fascinating article by the expert on Roman Law)
- blogpost: Bilateral Investment Treaties: Investors and Property versus the State
- my book International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide
{ 14 comments }
An example of the kind of normative and moral style of law is a World Court dissenting opinion on the legality of the use of nuclear weapons (the court found it legal, horrors) by judge Christopher Weeramantry;
http://www.libertyguys.org/home/detail.asp?ArtID=182
“The nuclear weapons exploded in Hiroshima and Nagasaki were more or less of the explosive power of 15 and 12 kilotons respectively, i.e., 15,000 and 12,000 tons of TNT (trinitrotoluene) respectively…Bombs in the megaton (equivalent to a million tons of TNT) and multiple megaton range are in the world’s nuclear arsenals, some being even in excess of 20 megatons (equivalent to 20 million tons of TNT). A one-megaton bomb, representing the explosive power of a million tons of TNT, would be around 70 times the explosive power of the bombs used on Japan, and a 20-megaton bomb well over a thousand times that explosive power.
“Since the mind is numbed by such abstract figures and cannot comprehend them, they have been graphically concretized in various ways. One of them is to picture the quantity of TNT represented by a single one-megaton bomb, in terms of its transport by rail. It has been estimated that this would require a train two hundred miles long.”
“When one is carrying death and destruction to an enemy in war through the use of a single one-megaton bomb, it assists the comprehension of this phenomenon to think in terms of a 200-mile train loaded with TNT being driven into enemy territory, to be exploded there (emphasis mine). It cannot be said that international law would consider this legal. Nor does it make any difference if the train is not 200 miles long, but 100 miles, 50 miles, 10 miles, or only 1 mile. Nor, again, could it matter if the train is 1000 miles long, as would be the case with a 5-megaton bomb, or 4000 miles long, as would be the case with a 20-megaton bomb.”
I further normed the example given by the esteemed judge with my own example;
…many, many people, from the man on the street on up to Rumstud, have no clue how destructive these things are. For instance, it would only take a few pounds of TNT (let’s say 20) to obliterate your house. A 20-Megaton warhead is 44 billion times that. That’s a lot of craters and dead people from just one little bomb. And we own thousands of these things. Rummy’s comment that they were “on the table” in Iraq just shows how clueless / nutty these guys really are.
Vince, I’m not quite sure what you are trying to say… are you saying that this is an example that buttresses my general point, or weighs against it? I don’t think any particular ICJ decision is really relevant to my general point.
BTW, there were two nuclear weapons decisions, both available on the ICJ’s “Decisions” page, which are: Legality of the Threat or Use of Nuclear Weapons (1994-1996); and Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1993-1996). There are some other very interesting decisions there.
Stephan Kinsella’s post on international law is both clear and correct. It helps us immediately to know the players on the two sides, and who the good guys and bad guys are. This is useful. More than that, I’d predict that just as state courts absorbed law merchant (although it’s making a comeback), states will try to squeeze out natural international law and replace it with their own jurisdictional and positive law. They will not support the int’l law if it doesn’t suit them.
In commercial matters this is what WTO does. The U.S., Mexico, and Canada have also had a Cancun Summit and set up the Security and Prosperity Partnership (kind of like the Greater East Asia Co-Prosperity Sphere.) It coordinates inter-state bureaucracies of several types that end up making and influencing laws and practices.
I suppose that the U.N. and especially the new NATO already display this character.
Just to note, that Frank Van Dun is from Flanders, Belgium, not the Netherlands. They speak Flemish in Flanders, which is a Dutch ‘dialect’. He did taught at a Dutch university though, the University of Maastricht, in the province of Limburg, where they speak a Dutch-German ‘dialect’: Limburgish.
The only problem I have with this, is that it sort of sets up a 1 world government. Eventually people and government wannabees like the U.N. will take the current standardization of international law and decide to codify it into a coersive monopoly. Then we’ll be under 1 world government.
However, this was very interesting and made me think.
I dugg this post.
http://digg.com/world_news/Is_International_Law_Libertarian
Tracy
Tracy,
“The only problem I have with this, is that it sort of sets up a 1 world government. Eventually people and government wannabees like the U.N. will take the current standardization of international law and decide to codify it into a coersive monopoly. Then we’ll be under 1 world government.”
The lesson of this article is the opposite of what you are suggesting. And it simply confirms that law in anarchy is better than law under a monopolizing state. Each state on this planet exists in a condition of anarchy with respect to the each other state. And what is being pointed out is that international law, as an artifact of this anarchy, has emerged in a less damaged condition than the laws that are legislated and decreed locally under each individual state. As long as there is no world government i.e. international anarchy, international law will continue to be superior to the laws perverted under the statism of each individual country.
1. I fixed the reference to Van Dun’s nationality.
2. Tracy: I should have clarified that I was not in favor of the UN. The UN is to some degree exerting some mild “legislative” pressure on international law akin to the way statutory law has strangled the common law. But, in part because of the UN’s inefficacy, this is proceeding pretty slowly. International law is a sort of natural law “among nations.” If we had a one-world superstate, international law would completely disappear.
This kind of dove tails with my curiousity about the alleged superiority of current “common law” decision making vs. idealized “civil law” decision making. Is it really better for jurists to comb old cases, looking for “precedent,” or would it be better to have a set of bedrock principles that the jurists always start their analysis at?
Purely from an error-propogation standpoint, I think, the answer is clear. Of course, there are other values involved as well, so you could have degrees of “common law” decision making to the extent that its costs don’t outweigh its benefits, but it seems to me that it starts a slippery slope scenario – once you establish the positive law aspects of “precedent,” you open the door to other aspects of positive law.
This is a worry: “Even if one could somehow establish, in court, that a given statute is “unjust,” that does not mean that the judge won’t enforce it. There is no “injustice” exception in modern statutory law.”
That’s a bad situation. Harmful.
I heard of a case where, although it was clear the defendant had committed an illegal act, the jury decsion was to acquit. The charge was to do with possession of drugs. It later turned out the jury foreman considered the law unjust and persuaded the other members of the jury that they should not apply it. The defendant was freed but what a hullabaloo by the judge and the prosecution!
They sure were not happy and made comments along the lines of “the jury did not do its job properly”. There was some comentary about how the jury was only supposed to apply the law exactly as directed by the judge. According to this thinking the jury members were not supposed to interpret whether or not the law was just. They were not supposed to consider the consequences of their decision (and not whether that was a just outcome or not). Just obey.
In most cases it would appear that jury members are happy to comply with the orders given them. Sometimes there are those who will stop and think about what it is they are actually doing. Pity that’s not more often.
I understand that most judges do not consider that juries should have the right to acquit on the basis that the law in a particular situation is unjust. I was informed by a barrister that “jury nullifications” are not considered in the Australian Law. He meant that he was not entitled to appeal to a jury on the basis that the law was wrong in a particular situation. In other words that was not a valid defence for him to use. He added that it may be that if a jury did nullify, the members of that jury may be liable to sanction themsleves. Oh oh.
Of course, unless someone talks, what occurs in the jury room stays secret.
Another learned man once said that law and justice were not the same thing at all. He said the Law was a terrible game played between practioners with other people’s liberty, to get other people’s money.
Sione
Stephan I think the judges REASONING was clearly common-law or normative reasoning consistent with what you are saying. His opinion was dissenting from the Court’s decision. I think this butresses your point about normative vs. positivistic.
Sione: Well, I think you are getting at jury nullification. Of course, I agree that this is implied by the right to jury trial and double jeopardy, and that it is a sort of safety-valve and a “unjust laws are not enforced” standard–but it is mostly not available today because of the way the state covers up and stifles the exercise of tha right.
Kudos to you Stephan a great article as always. I have just recently come in favor of anarcho-capitalism provided it is implemented in a certain specific way, namely succesive secession and privatization.
Under such a system eventually all states would either be 100% voluntary or alternatively non-existant(or really one-man states in the latter case)in such a scenario, international law would gradually become “national” law.
Stephan, I agree. And the potential problem with international law — that it will be monopolized by a single world government — does not make international law itself bad. The potential also doesn’t seem too likely, as a world government would be quite unsustainable. Indeed, one reason international law might be more libertarian than municipal law is that there is no world government.
Stephan
You’d be interested to hear that there is a move on in Australia to get rid of double-jeopardy. The reason quoted is so if new evidence is “found” a new trial can be held. Of course the result will be that if a given prosecution fails, a new prosecution can be filed. Eventually the defendant’s resources will fail and he’ll be imprisoned. It’s a matter of not guilty, not guilty, not guilty, not guilty, not guilty, GUILTY! Gotcha!
Not good news.
Talofa!
Sione
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