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When Law Fails

June 13, 2002
By Jeremiah Bourque

What are we to do when the law does not protect us?

International law was originally intended to regulate war. Post-WWII international law was intended to make war itself illegal. For all the pomp and ceremony, those who wail against the increasing irrelevance and disregard of international law, fail to attract great outrage for a simple reason: It is not becoming irrelevant; it already is.

A combination of recent events has brought this irrelevance into full view. First, the United States' complete contempt for any international agreement. Second, Israel's complete contempt of the international status of the so-called occupied territories, backed in full by the United States. Third, the open threats of nuclear holocaust taking place between India and Pakistan.

Domestically, faith in the political neutrality of the judiciary continues to plummet. The distinct impression being gained by many observers is that conservatives are conducting a Long March through the judiciary. Once poised to dominate, they will tear down landmark decisions establishing the power of the federal government over the states, laws that are neutral to or in any way disfavor mainstream Christian religious morality, and implement a radical fundamentalist theory of law intended to return society to the social purity of the 18th and 19th centuries. This movement is known, and glowingly praised by the President, as "strict constructionism". The main association of conservative legal minds, the "Federalist Society", seeks a version of federalism that smacks of confederalism.

To take only one highly visible example, the freedom of women to obtain abortions may be overturned someday. Once the constitutional ruling is overturned, the burden of the legalization or the banning of abortion will fall to the individual states. Thus, a 5-sided political war will emerge across America, with the issue sharply dividing opinions. Vast swaths of the "heartland" might ban abortion entirely.

If this happens, and those who support abortion, most vehemently those women who desire abortions themselves, will have no legal recourse. When the law fails, is it the duty of the individual to simply accept this? Or is more to be done?

Regardless of the ethical question, many women would then obtain illegal abortions. A lucrative black market in abortions would develop, similar to the narcotics trade, in addition to the Prohibition era, when Al Capone ruled the streets of Chicago, earning immense profits from illegitimate alcohol sales.

What happens when international law fails?

The solution preferred by conservatives is, to put it simply, the law of the gun. Mao's dictum concerning power will be used to justify ruling the Wild West by having the most powerful army, the greatest weapons, and the most budgetary waste. (If spending alone won wars then the Axis powers would have lost within three or four months of America's entry into WWII.) The proponents of force will argue that there is simply no choice but to be the biggest, baddest bully on the block.

Obviously, this means nuclear weapons, an aggressive policy for the use nuclear weapons, and an aggressive foreign policy intended to lead to the domination of the near region, or in the case of the United States, domination of the entire globe. However, the elementary parts of the strategy are clearly employed by India and Israel. This means that the nations most determined to end the power of law over international relations are the best positioned to exploit its loss.

Laws of war are likely already destroyed beyond repair. The treatment of Al Qaeda and Taliban captives in Camp X-Ray is establishing a worldwide standard for the treatment of foreign soldiers. Already, the extraordinary claims by the United States concerning its three hapless soldiers snagged at the border of Kosovo by Serbs (without firing a single shot, it should be noted), where the US argued that though there was no war, the mere fact that these were armed Americans should prompt their treatment as POW's, is being used as a bludgeon to beat America's positions on captives senseless. The hard-won rights of captive soldiers are being undermined by the death of declared warfare, the discrediting of armed conflict even between nations as simply fighting "Terror", and simple apathy.

Domestically, is the only means to combat tyranny, becoming an NRA member and buying a gun? Serious people - and I mean Democrats here - have begun asking this question, without the sort of humor that one might think this would demand.

In each case, there is a common solution: Applying the mind.

Even though that worldwide law is, at the height of its complexity and theoretical power, being reduced to the standards of the 1800's, this does not necessitate the complete abandonment of ideas such as diplomacy, morality, public ethics, and simple persuasion. Of course, this would require some sort of intellectual will, clarity, consistency, and most of all, memory that goes beyond yesterday's spin cycle.

Impossible? Not at all. Improbable? Of course.

Domestically, the will to stand tall and say, "I do not approve," is vital to resisting evil and stupid policies (two distinct and, sadly, not always separate categories). Resorting to force is to completely abandon the idea of civilized society. This would say more about the person taking up arms than about society itself. If any good is to be done, it must be done with the word, not with the sound of gunshots.

In both cases, arguments that continue to be based on laws considered irrelevant or faulty will fall on deaf ears. When law fails, arguments must be framed in terms of justice, logic, and morality, in terms that can be understood as universal, or as near to universal as possible.

I argue this in part precisely because the President, and British PM Tony Blair, have long argued their positions are based first on morality, and last on international law, saying the right to self-defense trumps all else on the moral scale. This implies that law only applies to bad people. No good can come from such a policy.

People have rights. Does a state have rights?

Does a state's rights supercede those of the individual?

Does the state have a right to self defense that is absolute, greater than any written law, constitutional or otherwise, that may be exercised by the Executive Branch in times of danger?

According to the decisions surrounding Lincoln's waging of the Civil War, the answer to these questions is, apparently, yes in every case.

My discovery of this has not been especially kind to my system of values.

What is the point to arguing that something is unconstitutional, when precedent says, nothing that the state does to preserve itself, is illegal, no matter what the Constitution, or statute law, or case law, may say to the contrary? This seems to be an argument based on the idea of natural law applying to states, a disdain of anarchy, and the view that justice cannot take place without order.

These may be valid views as a matter of philosophy, but this isn't just philosophy right now. Clearly, the likes of Dick Cheney are very full of themselves these days. Why isn't the administration rattled by the claims of unconstitutionality and illegality? Because, legally speaking, the state has a right to self defense that trumps all law, and Bush has declared that the US is in a state of war.

Neat trick.

Machiavelli apparently wrote that states that do not permit some form of dictatorship in times of crisis tend to be swept away. We know this to be true; it is why the US is, as we are often reminded by conservatives, a Republic and not a Democracy. This being the case, it has been assumed, by Lincoln, by Wilson, by FDR, and by, it seems, every President operating in the shadows of these giants, that when there is a threat to America, that all is permitted, and that civil rights and freedoms are luxuries afforded by the maintenance of security and order. It's just a matter of containing the political fallout and window dressing.

Apparently, if you dig deep enough into legal precedent, particularly the Civil War, this is easily discovered.

So why wasn't I told?

I've spent years listening to harping and whining and sanctimonious ranting concerning all sorts of rights, freedoms, guarantees, and so on. Why didn't someone say, clearly, that under certain conditions, these guarantees are null and void, because the Supreme Court has said so? If this is what we the People are supposed to expect from the United States, and indeed, most Western states, then why doesn't someone damned well say so!

Even worse are the psychological implications. This doctrine, of treating the state like a corporation, making it out to be a legal person with inherent rights, such as the right to defend itself against actual flesh and blood people, humanizes the state like plant lovers humanize their plants, ascribing human features to them. In the hands of a fanatic, this legal doctrine becomes a reason to project his own hopes and dreams, his own sense of self, onto the state, and to essentially glorify the state to cover his own insecurities. The state, in essence, becomes a sort of hero, stronger than Superman, flashier than Hulk Hogan, sexier than... oh, let's stop there. The point is, people begin to treat the state like people of faith treat their concept of God.

Having made this determination, the bloody wars of the 20th century come into perspective. When the state becomes a substitute for God, and is essentially hero-worshipped by vast masses, these masses become ready to wage war against other masses of people, making the power, glory, and dignity of the state a matter of personal prestige.

The religious wars of the Renaissance never ended. They just rearranged the deck chairs, gave people more rights and freedoms, and more guns, and gave the peasants and laborers more of a stake in the outcome, along with convenient national myths substituting for religion. Of course, ships and armies are blessed by God, as people understand God to be, and all nations at war think that the gods are on their side, as the Greeks taught us so well. As the Crusades became the religious wars of the Renaissance, these wars then became the nationalist struggles, with Communism and Capitalism both treated as de facto religions, and viewed jealously as competition for the souls of man.

That's why something that Bush slipped into his West Point speech really worries me.

Bush apparently said that there is only one system for the progress of man that survived the 20th century.

Upon reading that, you may or may not immediately grasp the vast implications of this statement. He also, of course, added such things as, there is but one moral truth, and this moral truth does not change with location and culture. (Anyone doubt that he believes that this moral truth is the Christian moral truth?)

But really, what it says, is that he thinks that war purified the Earth, and that Capitalism survived through a process of natural selection and divine destiny.

Now he's waging a war of civilizations against Islam, confident that the Christian civilization will triumph, because it is culturally superior.

This bothers me.

I've had a chance to go over Phil Gramm's comments at that Republican convention in Texas where he made comments that seemed like courting a race war.

What he actually said was, in essence, the Democratic "dream team", a pair of a Hispanic and a black for running the state, was a nightmare dedicated to severing the bonds that held Texas and America together. These bonds, it was very strongly implied, were masculinity, Christianity, and white skin.

The implication is that if Texas, or Washington D.C., were run by Hispanics, especially Hispanics speaking Spanish, then it just wouldn't be Texas or America anymore.

I guess now I know why they think they need all those guns.

I'm no less disgusted, of course.

I also note the prayer at the convention for an all-Christian judiciary, and opposition to the "myth" of the separation of Church and State.

So much for small government.

Guess they only disliked the size of government when it actually was meant to help people. Now that the Church and State can join together again, neither is under any obligation to be merciful, except, of course, in word.

What do we want in politics?

It sounds like such an elementary question. Yet, the question cannot be answered until one knows what "we" stand for.

In my writing these Daily Whopper articles, I have usually been very careful not to use the term "we" very often. When I have used it, I have been careful to be of relatively high confidence that the term refers to "we" North Americans, "we" Westerners, "we" who are not Republicans. Yet rather than identify myself as a liberal Democrat, I have remained silent on this issue, largely because I am not. I am simply not a Republican.

While I have rejected Republican politics, largely because I no longer think much of economic conservatism, the only part of conservatism I was willing to take seriously, I never accepted all the presumptions and sense of greater purpose that Democrats tend to be infused with. I am a skeptic, a man of little faith, a man of little capability to acquire faith in much of anything. When people huddle and comfort each other, I become uncomfortable. When people speak of reassurance and mutual support, I wonder if I, too, require it, or desire it.

Yet at what cost? My own instincts cry that the herd cannot be trusted, be it nasty and uncouth or simply angry. I&'ve never been able to accept comfortable untruths to hold me over. I&'ve tried, and I just don&'t have the constitution for it. I can&'t accept the easy way, clamping down on something that "I know is right" and refusing all other counsel. It is difficult for me to give everything to support one "side". There are so many flaws with both major political parties that supporting one or the other can be quite difficult.

I am a skeptic about the power of government, and of "good government". The prime lesson I learnt from my studies of economics is not that Keynesian demand manipulation works, but merely that it&'s just as silly as the alternative: building factories as if they will man themselves. ("He builds fortresses in vain who expects them to defend themselves." Or something like that.)

In many other issues, it is not radicalism that I support, but rather, a wise balance. Some things simply require compromise. Other things require something that is not a compromise, but is a balance between radical options. Overall, there has only been one principle that has consistently guided me: The best result for the most people.

Take the economics angle: Supply side economics basically says, build enough factories, and customers will buy. Demand side economics basically says, make people rich enough, and factories will build themselves. As in dance, it takes two to tango. Both sides are wrong. A balance of support for industry and support for workers is what is required for building prosperity. Yet those trapped by theories created by those we call "great minds" largely disregard such a solution.

For the most part, such failures are relatively harmless, balanced by the tug of war taking place with the other side. Thus, society continues, if not always smoothly.

Politics ultimately supercedes law. This is the only practical conclusion of my research. If Americans respected the idea that order is more important than freedom, America would still be ruled by British royalty. Yet the doctrine used to defend the integrity of the nation is ultimately founded on doctrines common to other states, many of which have been regularly condemned by Americans as hypocritical and corrupt. The same doctrines that fueled Europe's holy wars had become infused into the secular American state, ultimately cementing the view by America's religious right that both Soviet Russia and the American state were essentially competing religions, to be resisted and constrained by any means necessary.

Ultimately, it is not by a focus on human rights, legal rights, constitutional rights, that a nation can be saved. Ultimately, the concept of the rights of the state itself, and the theory that the rights of the state supercede those of the individual for the greater good, trumps all lesser rights. When you put the right of the United Kingdom, or France, or China, or the United States, to survive as a state, besides the right to a fair trial, the right to an attorney, the right to free speech, the right to freedom of conscience... there is a full and frontal expectation that the rights of the state shall, and must, triumph.

This is not just, but it is the way that order is preserved. Thus, the theory by which the United States is able to use the sort of means that Lincoln used without constitutional niceties, can be used to essentially argue that order supercedes justice, and that there can be no justice, without there first being order.

Granted... anarchy makes justice rather hard. This is a difficult issue. It goes to the core of personal beliefs vs. a belief in the necessity of law and order. It asks if justice is a function of the state. There is also another related question: If justice is not a function of order, is it still vital to act as if it is, in order to preserve society at large? And also, is that society worth saving?

And more to the point: If that society isn't worth saving, do we have to save it anyway, out of a fear of anarchy?

I do not pretend that these are simple questions. What is the proper balance? While I take a break from writing from a left-wing perspective, I must think more deeply about these issues. After all, my loyalty lies more with justice than with law. This said, I've spent a great deal of effort arguing for the sanctity of the law. I did it while a conservative, and I will continue to do it no matter my political affiliation (if any). The law matters to me. Yet it seems as if the law matters insufficiently to the law itself, when push comes to shove and the constitutional system is pushed to the point of requiring radical action for survival.

Obviously, many of the actions being criticized in the War Against Terror, ought to be criticized because, in addition to eroding freedom and human rights, they are criminally stupid. This said, the argument I am describing clearly makes these actions, even if violating the letter of the law, legal.

That does not make them right.

Let us be clear: British rule of America was legal. It was opposed by doctrines of justice and morality. What, I ask, is liberalism, without justice and morality? I do not mean morality in the sense of Christianity; I mean morality in the sense of mercy. Perhaps, ultimately, the only way to combat the creeping power of a cruel state, is to expose it as a weapon being swung around by amateurs and harming the innocent as well as the guilty.

If it is not right, then its not being right, matters.

Arguing anything less is a waste of breath. Isn't it?

That, at least, is the question I plan to ponder.

Jeremiah Bourque is taking a hiatus while pursuing his Japanese > English translation career, working on a role playing game book for R. Talsorian Games based on the anime series "Mobile Suit Gundam". Thanks for the compliments. I've enjoyed my run and will resume writing in some capacity once I wrap up this project. Gotta put food on the table and DVD's in the player, after all.

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