The Hubris of the International Lawmongers

Here's a very short and necessarily superficial summary of the theory of lawmaking in modern democratic societies.

The people are sovereign, or rather the broad section of the people which comprises the electorate. The electorate periodically chooses its representatives and sends them to the legislature. The legislature legislates: it debates, formulates and passes laws, which thus express a rough approximation of the people's will. The laws are sent out into the real world, where they are tested, refined, and elaborated through a complex process of decrees, practice, litigation and adjudication, and general public discussion, not in any particular order. On the contrary, this is a permanent multi-layered process. Decrees are promulgated by the executive, which is itself subordinate to the sovereign people; adjudication is done, obviously, by judges, and they too are subordinate to the electorate either because they must deal with the law as legislated, or through the mode of their appointment, or through whatever channels each democratic society chooses to control its judges. Ultimately much of the ongoing creation of the law and its application reflect moral values as they're defined by each society. Does it prefer to encourage risk taking over security, say, or how it chooses to allocate its limited resources. Successfully functioning democratic societies strive towards a common ground, a rough consensus around which most members can coalesce, and they navigate inevitable changes in social mores, technology, and all the myriad other things that change and evolve over time, in an approximation of general agreement. Societies which cannot roughly agree, because they're too diverse or haven't agreed on principles of managing legislation and its evolution, run the danger of disintegration or worse.

Telegraphic summary of the summary: the sovereign people figure out how they wish to organize their particular society and how they wish it to evolve, and their institutions strive to express this agreement.

International law doesn't have a sovereign, and worse, it doesn't have a universally accepted notion of priorities, mores, or institutions to express them. True, there are valiant attempts to pretend otherwise, and over the past half century or so they've grown ever more valiant. These include the creation of international institutions with a cursory appearance of democratic institutions such as a parliament, an executive and courts. There is a conceit whereby there's a set of fundamental documents which define universal mores, and these documents enjoy democratic legitimacy since they've been ratified by national institutions such as parliaments or governments. Yet the obvious fact that most of the parliaments or governments which did the ratifying were themselves not democratic should give us pause; the lack of credible accountable institutions for applying and evolving the old fundamental documents ought to convince that the entire system may be a noble and well-intentioned attempt, but it's not remotely possibly successful. Nor can it be: the idea of having a sovereign electorate is to preserve its power to change its mind. Almost by definition different societies will change their minds in different directions: because they're different.

An interesting example rarely mentioned in such discussions but which I have seen close up many times is the availability of archival documentation. Roughly speaking, American archivists reflect the will of their society by assuming documentation should be thrown open to public scrutiny as much as possible. Europeans, meanwhile, and especially Germans, are far more wary. Neither side is "right", and both sides have reached their present positions through an understanding of their respective histories; since the histories are very different, so is the legislation. Anyone who reads newspapers perceptively can easily put together their own long list of other examples. This is inevitable, it reflects the human condition, and it should be celebrated not bemoaned.

Unless you're of the opinion that there's a set of universal rules in which one size fits all. To an extent, the European Union project sort of takes this position - but the extreme reluctance to let in the Muslim Turks or the impoverished and hardly democratic Ukrainians demonstrates loud and clear that the EU project isn't universal, it's merely European, and can include only those societies who can be trusted to agree to the same broad consensus. I expect it will take another century or three to know if this can work even in Europe. Imagine trying to incorporate the US and you see how silly the conceit of universality is; then think of China or Russia. Heh.

None of which stops folks from pretending. The German Der Spiegel magazine, for example:

What is just about killing a feared terrorist in his home in the middle of Pakistan? For the families of the victims of the 9/11 attacks, and for patriotic Americans who saw their grand nation challenged by a band of criminals, the answer might be simple. But international law experts, who have been grappling with the question of the legal status of the US-led war on terror for years, find Obama's pithy words on Sunday night more problematic. Claus Kress, an international law professor at the University of Cologne, argues that achieving retributive justice for crimes, difficult as that may be, is "not achieved through summary executions, but through a punishment that is meted out at the end of a trial." Kress says the normal way of handling a man who is sought globally for commissioning murder would be to arrest him, put him on trial and ultimately convict him. In the context of international law, military force can be used in the arrest of a suspect, and this may entail gun fire or situations of self-defense that, in the end, leave no other possibility than to kill a highly dangerous and highly suspicious person. These developments can also lead to tragic and inevitable escalations of the justice process.[my emphasis]

Translation: Claus Kress and other unnamed self-appointed legal experts trump the sovereign will of the American people. It's not historical fact that punishment can be meted out only via trials, so Kress can't be talking history. He's talking law, or anyway he thinks he is. Except that of course he's not, since he allows no room for an adaptation of law to new circumstances. Nor does he grant the American people the right or legitimacy to fashion their own response to a new situation. If the murder of 3000 people in New York is hiding in Pakistan, America may not chose the manner it will deal with him, rather it must do what Claus Kress says, since he represents a higher justice than the mere will of the American people. Moreover, his interpretation trumps theirs, since he knows he's right. And of course, Claus Kress is against capital punishment, as most Europeans are, and the international court he's referring to has no capital punishment on its books, so there's no way in which the Americans could have legally caused the death of Osama Bin Laden unless he was shooting at American policemen with a legal arrest warrant.

Kress isn't important as an individual. I'm criticizing him because he represents a widely accepted Weltanschauung.

Kenneth Roth agrees, but takes the hubris a very important step forward. Roth is an American, so on one level he, unlike Kress, is a legitimate participant in the American discussion of how America should deal with its enemies. Yet Roth doesn't refer to American law, rather to international law; actually, he doesn't refer to law at all, rather to a philosophical principle which he adheres to and demands that all the rest of us do, too:

It's not "justice" for him to be killed even if justified; no trial, conviction.

What makes this statement positively comic is that it came in a tweet in which he rebutted the Secretary General of - are you sitting? - The United Nations! Ban ki Moon, you see, had just announced his satisfaction at the death of Osama bin Laden. Roth then turned to the American government and demanded:

White House still hasn't clarified: OBL "resisted" but how did he pose lethal threat to US forces on scene? Need facts

It's a fine thing that individual citizens can place demands on their government. It's an essential part of democracy. What's so repulsive is the strident demand that a democratically elected government justify its actions - pronto! - to an unelected, and very much unelectable private individual who sees himself as superior to the democratic process of his country, in the name of an undemocratic system which lacks all the elements of a living legal system.

It's tempting simply to write people like Kress and Roth off as kooks. Sadly, Kress represents a widely accepted theology in Europe, and Roth has an impressive cachet in some circles in America; they are supported by many very cynical governments who have very limited patience with their sentiments when it comes to their own societies, but find the appeal of intervening on the sovereignty of other lands irresistible Feeling superior at the expense of America is fun; garnering points from the large Muslim contingent at the UN by rigorously applying these notions to Israel is painless. On that level, it's hard to know if Roth is a knave or a dupe. Knave for propagating a crooked and anti-democratic system, dupe for being the tool of hard, undemocratic and unscrupulous regimes. I expect he's both.

Update: Apropos theology, the Archbishop of Canterbury joins the chorus.