BY ALLISON WHITE
America has her resolution; let America enforce it now if she can.
Such was the effective meaning of France’s announcement that it would block enforcement of Resolution 1441. It reminded us that, regardless of the “resolutions” passed by the international deliberative body, words are not “law” absent credible threats of enforcement.
The world of the political-legal realist is certainly bleak in days such as these, but such is reality. In their March 6 column (in reply to mine), Akbar Rasulov and nine others sought to deny the state of world affairs through equal parts ad hominem and wishful thinking. To them, my words reflected what some “would like international law to be, rather than what actually is.” Were they aware of their irony? If not, let me bring it to their attention.
Rasulov et al. cut to the heart of my argument by criticizing my “state of nature” approach:
“By saying that states exist in the state of nature, does White subscribe to a Hobbesian vision of the international society? Does he suggest that if he complains about the violation of his rights abroad, he should be listened to, not because of the protection which international law affords him, but because otherwise someone may send B-52s over?”
Indeed, in that very paragraph, the authors betray their persistent inability to discern “is” from “should.” Nowhere in my argument do I argue what “should” be; rather, I urged law students to consider what is. I don’t argue that human rights should be nonexistent; rather, I assert that human rights are nonexistent when they are not protected, in the end, with a threat of force. Thus, Rasulov’s recognition of my “apparent refusal to imagine a legal order that proceeds without a Leviathan” is appropriate. I won’t “imagine” such a legal order if, in fact, it does not exist. Will Rasulov?
Any “Austinist” legal values I harbor aren’t my view of the “should” — they are my view of the “is.” They are the views of Holmes’ “The Path of the Law.” May I suggest that Rasulov et al. consult that text (not to mention The Common Law… and, perhaps, The Common Sense). If the arguments of Holmes are outdated, consider those of Dean Acheson, or of Robert Kagan’s recent Of Paradise and Power: America vs. Europe in the New World Order.
Consider also the lessons of history. When the Supreme Court ruled unconstitutional the evacuation of the Cherokee Indians in Worcester v. Georgia (1832), President Jackson announced, “John Marshall has made his decision; let him enforce it now if he can.” Marshall could not; thus, the treaties and Constitution lost their effective value as the Cherokee were cast from their homes. Jacksonian lawlessness was, in that case, exceptional — at the U.N., however, est l’arme de choix.
Will you ignore the lessons of Brown v. Board of Education? Until the threat of force opened the doors of many Southern schools, there was no law to the contrary. Ask the children about their “rights.”
I do not argue that we should ignore questions of “should” — of course we can work toward idealist goals. But we can never do so blindly, ignoring the real-world constraints: the state of nature; negotiation with untruthful parties; imperfect information. In this reality, we should utilize law only where appropriate and workable — but the U.N. Security Council is no such forum.
While most of the essay was devoted to accusations of “parochial ignorance” and “opportunism,” one accusation in particular merits response. Regarding Rasulov’s tangential assertion that Coverup was not shown for anti-Reagan purposes, I can only point to the Adviser:
“The International Film Series is unofficially joining the “celebration” of “Reagan Week” … you will be able to get an alternative view on the shady U.S. foreign policy in the 1980s as presented in the documentary, Coverup….”
I wasn’t present for the screening, but were the authors present for the drafting of the notice? Or were they too busy pushing the U.N. charter my way to read their own press releases?
Defenders of U.N. idealism who criticize Realists for “unworkable and illusory” worldviews undermine their own credibility — even without denying their own Adviser press releases. Nonetheless the argument bears repeating: We enjoy the blessings of liberty only because they have been secured by force against the world — against the state of nature. Law assumes this foundation — men of law cannot ignore the greater umbrella under which they practice their craft.
None of this is meant to diminish the good that international law can and does achieve — to wit, workable international collaboration, such as U.S.-U.K. bilateral treaties, or in the limited realms of international trade law. I only write to call attention to the limits of the lawyer’s tools. The law, like currency, is fragile: Inflation eviscerates its value.
“Imagine” is a nice song, Mr. Rasulov, but John Lennon’s diplomacy was suspect at best. You may say I’m a realist, but I’m not the only one.
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