I can’t blame law students for believing that the current Iraq situation can be resolved through UN pseudo-legalism. When a student spends three years working with nothing but hammers, everything starts to look like a nail. Nonetheless, should opponents (domestic and foreign) of pre-emptive action against Iraq persist in their misguided “idealism,” Western civilization could pay a deadly price.
Opponents of U.S.-U.K.-“New Europe” military action endorse the seemingly deliberative “process” of the United Nations; they ask our leaders to submit to “international law” as evoked through U.N. resolutions. They see the U.N. as a qualitative peer of our own Congress, believing that the Security Council and other fanciful international cooperatives such as the International Criminal Court are capable of mimicking American federalism on an international level.
Their misguided comparisons are forgivable — we Americans are raised to believe in the virtues of congressional deliberation, of rule of law. But such application of these ideals is misguided, for it presumes a foundation that does not exist among the nations: civil society.
Citizens of Western nations have been rescued from the state of nature — be it by a benevolent “Leviathan” or the mutual self-interest of the “social contract” (assuming that the social contract isn’t voidable on the grounds of disparate bargaining power… but I digress). We cannot forget that civilized society’s laws are enforced under the background threat of force. Laws restrain or coerce human action because the machinery of the state will, if required, put a gun to the head of the citizen and order him to pay his taxes, testify truthfully or desegregate his state’s schools.
But “international law” has no Leviathan, no social contract, no monopolistic enforcer. It is made up of nation-states existing in a state of nature. Any “laws” among the nations are but contracts enforceable only by the self-help of parties to the contracts. Recognition of this absence is a core tenet of political realism, the philosophy embraced by much of the Bush Administration.
Defined succinctly in Hans Morgenthau’s Politics Among Nations: The Struggle for Power and Peace, political realism warns against idealistic misperceptions of international affairs. It recognizes that nation-states are individual actors in a state of nature, and that a nation must approach other nations cognizant of their demonstrated tendencies, not disconnected statements of policy. It is a philosophy wary of words and mindful of power.
Legal and political realism are not merely similar in name — they are bound together by common history. Legal realism was borne of Justice Holmes, but Holmes’ own pragmatism was borne of the horrific realities of Civil War violence. What he brought to our jurisprudence was merely the legal corollary of the Political Realism he denied as a pre-War Emersonian idealist but accepted amidst battlefield bloodletting. Students following his “bad man” theory of jurisprudence cannot simultaneously accept anything less than political realism when approaching the ultimate “bad man,” Saddam Hussein.
HLS — home of Holmes and Brandeis and font of legal realism — has long purported to break through formality and expose the factual underpinnings of social order. But while legal realism (in its current state) persists, Political Realism retains few adherents here. Prof. Dershowitz’s realism is well-documented; Prof. Jackson joined the regime-change-oriented Committee for the Liberation of Iraq. But they are exceptions. Instead, HLS features a negotiation workshop advertised on posters posing Kofi Annan as “mediator” between Bush and Hussein. Hammers and nails.
The absence of political realism is doubly perilous in light of the Law School’s commitment to international law. What a momentous time to study international law: The UN is sinking in the quagmire of its own irrelevance. An aggressive dictator flaunts violations in the face of UN “resolutions” that go unenforced by the same Franco-German Axis of Apathy that demanded them in the first place. A 60-year-old framework of international legalism is being dismantled in a matter of weeks. To mark the event, HLS international law students jump into the fray… by featuring an anti-Reagan movie. How fitting.
None of this is to say that international agreements are categorically useless — indeed the WTO, NAFTA, and Cold War-era NATO speak vociferously to the contrary. But those were contracts between discrete groups of members all conscious of their limited applicability and enforceability — a far cry from the pseudo-legislative U.N.
The task of a lawyer is to pursue idealism only through honest identification of contextual realities and pragmatic crafting of strategy for obtaining most efficiently the best possible outcome. America’s goal is the first of our foundational interests: preservation of life and liberty. International “law” can only be accepted to the extent it furthers that end.
Nations exist in a state of nature. If Americans shy away from that reality in the face of barbaric terrorist aggression — relying instead on an empty string of unenforced U.N. “resolutions” — our lives will indeed be nasty, brutish and short.
Adam White is the editorial page editor of The Record.
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