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    Entries in Law (6)

    Wednesday
    Dec102014

    The Long View 2002-07-02: Innocence is no Excuse

    John's specialty was business law: boring things like securities and the UCC. I can see why he turned to millennialism [kidding!]. In passing, he notes the securities law has a great deal more to do with regulation than legistation per se. This is true in my field as well. For example, 21 CFR 820, which governs current good manufacturing practice for medical device companies, is actually rather terse.

    Later, John mentions one of the persistent, yet unremarked scandals of modern American finance, the 401k. It took me a long time to understand what John was getting at here. Comprehension finally dawned when I was reading about the former physicists turned programmers, known as quants, who make exorbitant amounts of money in Manhattan.

    These physicists create ever more complicated models of asset pricing which are then fed into equally complicated trading programs that watch the market and continuously make trades based on the models. At first, I assumed that the various hedge funds were competing against each other. This seemed bizarre, they were all doing the same thing, and no one seemed to have a competitive advantage, yet they are all making money. Then I realized: they aren't making money off each other, they are making money off you [and me].

    This is why John called the 401k a bubble machine; by privileging this kind of investment accout with tax-deferred status [and perhaps more importantly, legitimizing it as the way middle-class Americans save money], a continual inflow of money to the stock market was ensured. 401k programs get money every two weeks [or whatever pay period you have], and then that money is invested per whatever plan the fund managers set out. I imagine there is a great deal of discretion involved, but to the high-volume traders, this must seem like easy pickings.

    When I realized this, I did the only rational thing: I hired some quants to be my financial gladiators.

    Innocence is No Excuse

    Sometime in the mid-1980s, I was writing an article about a new regulation from the Securities and Exchange Commission having to do with the Glass-Steagall Act, the Depression Era law that separated the businesses of commercial and investment banking. I did not know much about the subject, so I called the SEC for clarification. They were actually very helpful. Toward the end of the conversation, however, I asked for a citation to the Act in the US Code. It was as if I had asked for a citation to the Code of Hammurabi. "We don't have information like that!" the woman at the legal division said in shocked annoyance. She hung up on me.

    It is notoriously the case that the law dealing with securities has little to do with actual legislation and everything to do with regulation. The whole edifice of insider-trading law was based on a short, cryptic statute prohibiting "fraud." The Congresses that passed the bulk of financial regulation legislation favored broad terminology. The reason was explicit: a precise law would let traders ignore the broader policies of the regulators. It is, by the way, no accident that the Congresses in question are called "Depression Era": federal policy probably extended what would have been a short, sharp slump after 1929 to cover the following decade.

    The chattering classes are in the mood for a replay. Both the president and vice president are hounded in public for acts not normally considered illegal. The vice president, indeed, is being sued by pretty much the same people who made Bill Clinton's life a litigious misery. Reams of legislation are rolling through Congress to criminalize "schemes" and "devices" that defraud investors in no very precise way. There was a moment, during the Congressional panic over the collapse of the savings & loan industry, when some nitwit introduced a bill to mandate life imprisonment for "S&L kingpins." We are approaching that level of inanity now, but the real danger is not more vindictive criminal law.

    The class-action bar wants a piece of this. There was good money to be made during the early '90s in suits brought in the name of shareholders. Corporations were shaken down for hundreds of millions of dollars because their officers made remarks that did not perfectly predict the future behavior of the stock. Some shareholders may have gotten a cut, but the suits were essentially rackets operated by lawyers in search of class-action fees. In a fit of sanity, Congress made it harder to bring such actions. Now there is serious pressure to put things back the way they were, or make them even worse.

    I can only repeat that there is nothing mysterious about what is being called the "accounting scandals." John Kenneth Galbraith once remarked that recessions reveal what the auditors missed. They also reveal what the auditors tried to cover up. When equity prices rise, businessmen are geniuses. When prices fall, businessmen are crooks. The crookedness this time around is that some businessmen used accounting and other devices to prevent their companies' stock from falling.

    There are systemic problems with the financial system, but they are not the ones that people are talking about. Frankly, there is too much money in it. Ordinary people should not be using equities markets as a savings vehicle. Consistent high rates of return are possible when only a small fraction of the people are in the market. When more money is invested, it's worth less. The extreme case is Japan, which is drowning from overinvestment.

    The current "crisis of confidence" in US markets will dissipate in fairly short order. The curse of the 401K will not.


    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

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    Thursday
    Nov202014

    The Long View 2002-07-05: The International Criminal Court 

    Partly as a matter of personality, and partly as a matter of profession, I care very much about the letter of the law. Thus I find myself very sympathetic to John's legal reading of the Rome Statue that governs the International Criminal Court. Since I am not a lawyer, I have no opinion on the technical merits of his argument.

    As an interested amateur, I find this a very fascinating subject, and I wish I knew more. I do find John's characterization of the UN General Assembly convincing: most of the countries in the world owe their existence to how tiresome their more powerful neighbors found it to govern them, than any kind of natural right. If the most powerful countries leave behind ethnic nationhood for universal states, you can expect this to become less true.

    The International Criminal Court

     

     

    I read the Rome Statute that governs the Court, and that went into effect on July 1. It's the damnedest thing. The Court is its own little legal universe. It not only has its own criminal statutes (for genocide, crimes against humanity, war crimes, and the still to be defined crime of "aggression"), but its own rules of statutory construction, plus the the Court's structure and sources of funding. At 29,000 words in the English version, the Rome Statute is almost three times the length of the US federal Constitution, but then the US Constitution is notoriously short. Besides, the US Constitution does not cover as much ground.

    The International Criminal Court is tricameral. With just 18 judges to start with, one chamber in effect operates as a grand jury, another as a trial court, and a third as a court of appeals. The Court is supposed to be funded by assessments on the states adhering to the treaty. Those states are also supposed to volunteer prison facilities for persons convicted and sentenced by the Court. The Statute seems to imply that the host country, the Kingdom of the Netherlands, will pick up the institutional expenses if no one else will. Moreover, the Statute specifically allows for donations from private persons and organizations, and even for volunteer staff. It is possible to imagine that the Court could be freed of budgetary constraints by foundations and NGOs.

    The Court's Prosecutor can initiate proceedings himself, or complaints can be made by a state that is a party to the treaty, or by the UN Security Council. The key to jurisdiction is that the acts alleged to fall within the Court's purview must have happened within a party state, or the actions in question must have happened to the citizens of a paty state. The defendants can be anybody, anywhere. There are no enforcement mechanisms of any kind, but the party states are required to comply in the matter of extradition and service of process.

    The parties to the Statute constitute the Assembly that oversees the court. Sixty signatories were necessary to bring the Statute into effect. Among the current signers, many of the world's middle-sized countries are represented, principally from Europe, plus Australia and New Zealand. However, none of the world's large countries have ratified the Statute, except for Brazil and Nigeria. We should remember that the count of sovereign entities in the early 21st century runs to nearly 200. Most of them have populations smaller than that of a middle-sized Asian city. In other words, most of the members of the Assembly represent "rotten boroughs."

    The UN Secretary General has some administrative functions with regard to the Court. The Statute contemplates that the Assembly can meet at the UN Headquarters in New York, annually or more often if necessary. The drafters apparently contemplated that the Assembly of the Court would eventually become coincident with the UN General Assembly. (Israel has ratified the Statute, by the way, perhaps in the hope that its membership in the Court's Assembly will redress its second-class status in the UN.)

    Most important changes to the Statute, including modification of its criminal law and the Court's structure, require a two-thirds majority in the Court's Assembly. In effect, the Assembly is a parliament empowered to legislate some features of international law. This would be new, if anyone takes it seriously

    As for the law and the procedure of the Court, there are few points that would strike a Common Law jurist as extraordinary. In fact, with its attention to questions like burden of proof and self-incrimination, the Statute seems designed to mollify Anglo-Saxon misgivings. There are some eccentricities. For instance, double jeopardy seems to apply in full force only to decisions of the Court itself. Judgments by national courts can be reviewed by the International Court, to see whether international law was applied adequately. Moreover, the Court's Prosecutor can appeal an acquittal from the Court's trial division to its appellate division, even on matters of fact. This is only to be expected in a system without jury trials; judges in Common Law countries are far more willing to second guess other judges than they are juries.

    From what I know of the subject, the Statute gives a reasonable statement of the principles of international law in the areas within its purview. To the extent there is any innovation, the Statute is fair about it; the Court's jurisdiction covers only acts committed after the Statue came into effect at the beginning of this month. Of course, as I have noted, the Statute does put international law up for grabs in a novel way.

    Reading the Statute does not answer the question: what is this? The idea of a criminal court without a police force is ludicrous. The Statute makes ordinary statecraft impossible. Although the Prosecutor has some discretion about whether to bring a case or not, his discretion is defined with regard for the personal situations of the victims and the alleged perpetrators. The Statute revokes the traditional principle of sovereign immunity, but nowhere did the drafters make the tiniest acknowledgment that prosecuting heads of state and military personnel is unlike prosecuting domestic defendants. There is a provision allowing the Security Council to order the Prosecutor to defer a trial or investigation for a year, but that does not remedy the basic problem. One simply does not arrest a head of state, one negotiates with him. Failing that, one makes war on him. For the Court to do any good, it must be subordinate to some executive body capable of conducting politics and diplomacy.

    The UN Security Council would serve nicely as the responsible executive, and in fact that is what the United States has been insisting on all along. Without some such mechanism, international law will be set at odds with international order. The Court and its Statute as currently constituted should be ignored to death.


    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

    An archive of John's site

    Wednesday
    Nov192014

    The Long View 2002-07-01: Don't Pick Fights about God

    John talks a lot of sense here. It is pretty easy to get wrapped around the axle on issues of religious freedom, but the most important take-away here is that First Amendment law as applied to the states is a very recent invention, and the overt purpose of it was to keep Catholic primary and secondary schools from getting public money. Some of the states were actually ahead of the courts on this, the Arizona constitution forbids the use of public money to support parochial schools. Clever legislators have managed to find a way around this that has been challenged all the way to the State and United States Supreme Courts and survived.

    This was perhaps the biggest favor the Federal government has ever done to the Catholic Church in America. If you look at the schools in European countries that are supported by tax dollars, you find Catholic schools that are not notably Catholic, or well-attended. One might also note that the behavior of most Catholic universities in the United States can probably be explained by the exception in this First Amendment jurisprudence that allowed public money to flow to post-secondary institutions. They have behaved accordingly.

    Don't Pick Fights about God

     

     

    Few federal appellate court decisions have been repudiated as widely and swiftly as Newdow v. U.S. Congress. In that decision, a panel of the 9th Circuit held last week that the phrase "under God," inserted into the Pledge of Allegiance in 1954, was unconstitutional. The panel also held that it was unconstitutional for a local school board to require that the Pledge be recited at the beginning of each school day, even if students who did not wish to join the recitation were not required to do so.

    This decision is something of a practical joke. The Supreme Court has repeatedly used the amended Pledge as an example of a constitutional use of theism. The suit itself is an odd duck, one of those badly pled public-interest suits that no court hears unless it has an ax to grind. The plaintiff, a doctor who is also a member of the California bar, is an irate atheist and parent who represented himself. He named the "U.S. Congress" as a defendant, under the misapprehension that the courts could order Congress to amend the text of the Pledge. The district court did in fact just throw the complaint out, but the panel resurrected it. Judges can be shockingly whimsical.

    There is not really a lot of doubt that the opinion will be over turned, either by the full 9th Circuit or by the US Supreme Court. The question is on what grounds the decision will be reversed. The First Amenment really does say, in part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." On the face of it, there does seem to be some problem with Congress creating a Pledge that says the US is "one nation, under God." The fact is that courts that have allowed official allusions to God to stand, such as the motto "In God We Trust" on currency, have usually fudged the matter. Conservatives have appealed to tradition, and liberals to the somewhat insulting theory that these evocations of the Almighty are too trivial to outlaw.

    At the risk of spoiling the fun, I should point out that references to God are not necessarily to a supernatural entity. In Kant's philosophy, the concept of God is posited as a necessity of practical reason, in rather the way that cartographers have to posit a point of 90 degrees latitude in each hemisphere. God in that sense is an objective standard against which the morality of behavior may be judged. Kantians would argue that the attributes of this God are not merely conventional, but fixed by necessity, like the attributes of a mathematical theorem. Phrases like "In God We Trust" could then be interpreted along the lines of Mr. Spock's paeans to logic. Such a God could not be an object of worship, and so would not fall under the ban of the First Amendment. This God might be adopted as the referent of America's famous "ceremonial Deism." Since this God is really an idol, however, it's probably just as well that the possibility has been overlooked.

    Back on Earth, there is a principled argument for the use of the Pledge in public schools. As we have seen, the constitutional text refers only to what Congress can't do. The Bill of Rights, of which the First Amendment is a part, was written and adopted to apply only to the federal government. The Bill of Rights was applied to the states after the Civil War, by the 14th Amendment. Even then, the application was piecemeal, and always with the recognition that the provisons of the Bill of Rights had to be customized when applied to the states. The Supreme Court did not "incorporate" all the provisions of the First Amendment in this fashion until well into the 20th century. First Amendment law regarding religion is actually almost wholly a creature of the last fifty years. It was invented chiefly to keep public money out of the hands of Catholic schools below the college level. It really is as simple as that.

    At the time the First Amendment was adopted, several states had established churches, or otherwise gave preference to some kind of belief. The religion clauses of the First Amendment were intended to prevent the federal government from disturbing these arrangements. Even at the federal level, the First Amendment was not taken to mean much more than that Congress could not establish a church: the early federal government granted a charter to a Jesuit institution in the District of Columbia, Georgetown University, and quickly made provision for military chaplains, though under some protest.

    There is a great deal to be said for the proposition that, whatever else the religion clauses of the First Amendment are supposed to do, they are not supposed to change the way that people live their everyday lives. They were designed not just to make sure that people are left alone in this regard, but that communities are, too. The religion clauses of the First Amendment are not supposed to direct the way that communities keep festivals, or organize public space, or especially to educate children. Education is intrinsically intrusive.

    It is quite possible for parents to want their children educated to be completely secular or anti-theist. There is no doubt some constitutionally minimum requirement of non-coercion. Also, the First Amendment today clearly means that no level of government, federal, state or local, can establish an official church. The religion clauses, however, are probably best regarded as injunctions to the federal courts to leave these matters as untouched as possible.

    What I have said here is pretty much what Justice Thomas said in his concurrence to Zelman v. Simmons-Harris, also decided last week, which held that the states could fund student vouchers that can go to private religious schools as well as to public and private secular ones. The problem with concurrences, however, is that they sometimes highlight what the majority opinion did not say. In this case, Chief Justice Rehnquist's majority opinion took pains to emphasize the continuity of Zelman with the trend of First Amendment law over the past 20 years, which has in fact been allowing more aid to flow to religious institution, provided the aid is for a secular purpose. What he did not mention was Justice Thomas's historically sensible notion that the states should have more leeway to experiment in this area. Neither did the dissenting opinions. The Supreme Court, perhaps wisely, does not like to talk about incorporation.

    Aside from Justice Thomas, the only opinion that tried to address history seriously was Justice Breyer's dissent. He noted correctly that the First Amendment law in this area is just two generations old, and that it was created to manage the growth of a large Catholic minority. He did not, however, quite get a handle on the fact that the "neutrality" the Supreme Court adopted by 1950 was actually a bit Orwellian, with religion becoming almost the only area of human discourse against which public bodies could discriminate. He also seems to have conceived the odd idea that the repressive 20th-century jurisprudence had a pacific effect. The removal of prayer from the public schools in fact persuaded millions of Americans that their government must really be run by Martians. It was one of those progressive policies that contributed to massive alienation from government. Whatever else Zelman may do, it is not going to exacerbate the culture war. Rather the opposite, I should think.


    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

    An archive of John's site

    Thursday
    Sep112014

    The Long View 2002-04-11: Tobacco, Guns, and Slavery Reparations

    This was John's specialty, and it shows. Twelve years later, these topics are still topical, although they have evolved in interesting ways. Tobacco has become quite the pariah following the capitulation of the tobacco companies, but it isn't done yet. Hipsters insist on smoking even though is it deeply gauche to their betters. Guns are still very much in the news, and now the courts have started to apply strict scrutiny to 2nd Amendment cases. Slavery reparations is the most interesting. This is an idea that will not die. John suspected that slavery reparations could not survive a litigant as combative as the gun manufacturers have been. I think this is likely true, since any attempt to apply slavery reparations using actual legal principles would corrupt everything, including the plaintiff's lawyers. However, there is reason to suspect that slavery reparations are a strategy that still makes sense.

    Tobacco, Guns & Slavery Reparations

     

    There was an old Monty Python skit, in which supposed "men in the street" were interviewed about their views on taxes. One of them, a staple Monty Python character called Mr. Gumby, says "I think we should tax all people standing in water." Then the camera changes to a wider shot and we see that Mr. Gumby is standing in a stream. He looks down and says "D'oh!" like Homer Simpson himself. This should be the reaction of all thinking people toward the jurisprudential fashion for expanding civil liability to remote defendants based on social evils

    You really don't want to live in a world where these suits could succeed. Even as I write, law professors are bringing suits against a number of entities that did business with slaveholders 150 years ago, or against entities whose predecessors in interest did business with slaveholders, or whose predecessors in interest did business with industries that were somehow connected with slaveholding. One does not quite know what to say about claims like these. Some of the people organizing these suits teach at Ivy League universities, some tiny fraction of whose endowments come from slavery-related businesses. Other organizers were educated at those universities, often in buildings constructed in small part with tuition paid by slave-holding families. By the logic of the reparations suits, the houses of the people bringing them could therefore be attached, since the property was purchased in part with funds paid by tainted institutions, or earned through professional skills gained in part at tainted institutions. As Mr. Gumby would say, "D'oh!"

    Arguably, the beginning of evils was the relaxed attitude toward property confiscation that legislatures began to adopt as part of the effort against organized crime. (The federal RICO statute may yet engulf the whole universe, but that's another story.) However, things did not get out of hand until the anti-cigarette litigation started to succeed. The problem was not so much the claims by individuals that their wills were overborne by nicotine addiction and tobacco industry propaganda. Such claims required little new law. The big change was when the state and federal governments demanded to be paid by the tobacco companies for health costs associated with smoking.

    The logic of those claims is still breathtaking. For one thing, the governments were under no obligation to pay for health costs, so it is hard to see how they could demand compensation for providing a service they undertook voluntarily. For another, smoking probably reduces total health-care costs; it kills people before they can rack up the high medical bills associated with old age. And in fact, courts were not terribly receptive to the arguments from governments for compensation. It is almost certain the claims would have failed, had they been litigated straight through the system. However, the tobacco companies chose not to do that.

    It has been a long time since tobacco was the sort of industry that attracted businessmen of the first caliber. Tobacco products, with few exceptions, are insubstantial commodities, compounded of weeds, paper, and advertising. Tobacco companies are cash cows, run by stolid lawyers and MBAs who chose the industry because it was not supposed to require any imagination. Faced with the choice of years of litigation in defense of abstract legal principles or of buying peace with large settlements, they chose the peace. The cows would be a little thinner, perhaps, but at least the executives could be reasonably sure the herd would not be slaughtered.

    More recently, dozens of governmental entities across the country brought coordinated suits against gun makers. Allegedly, the manufacturers sold guns knowing that they would be bought by criminals, thus running up the bills of municipalities for law enforcement and emergency medical care. This is a slightly better argument than the one brought against the tobacco companies; police protection is a basic function of government, and anyone who makes it harder arguably should have to pay for it. However, that still leaves the fact that the crimes that are costing all the extra money are not being committed by the gun makers, or with their encouragement.

    Gun makers, it seems, are made of sterner stuff than tobacco executives. They have fought the suits tooth and nail, with overwhelming success. The reason they fought is not far to seek. While it is possible to make guns profitably, the business is not the money machine that cigarette making is. Prices of guns cannot be raised arbitrarily. Gun makers simply cannot afford to settle. Also, for better or worse, some people love their guns, including, apparently, the people who make them. Moreover, many people are politically committed to the wide distribution of guns. Ideology, we see, counts for far more than mere nicotine addiction.

    In each of the situations where attempts are being made to generalize liability, there is a class of people with motives that are more or less pure. Tobacco-haters are at least as ideologically committed as gun-lovers; it was their luck to link with tort lawyers at the right point in history. The anti-gun litigation is more political. It looks well for a city government to issue press releases announcing these suits. So far, they have done little harm, though in the long run they will probably cost the cities that bring them some money. The saddest case of all is the reparations movement, which reflects the decay of venerable civil rights organizations into protection rackets. Those organizations are themselves much more vulnerable than any of the entities they are pursuing. They will not survive this project, if they encounter defendants as combative as the gun makers.

    Before anyone attempts some daring new use of the tort system, there is this point to consider: the legal system exists to keep the peace. We don't have tort suits to enforce people's rights or to vindicate justice, though one goal of government is to try to make the courts do those things. We have courts so that private parties will not settle their disputes with gunfire. When the interests of the whole of society are involved, and people have strong opinions on both sides of a question, the matter is best left to politics.


    Why post old articles?

    Who was John J. Reilly?

    All of John's posts here

    An archive of John's site

    Sunday
    Jun012014

    The Long View 2002-02-19: Show Trials

    Thomas Sowell wrote a book that this blog entry brings to mind, The Quest for Cosmic Justice. Sowell argued that the search for ultimate justice always seems to end in even greater injustice. I tend to see Sowell's argument in Thomistic terms now. We fallen creatures cannot ensure perfect justice, because we are not perfect. We have to pursue worldly justice, because that is all we are really capable of. Furthermore, it isn't really our job. Vengeance is mine saith the Lord.

    Slobodan Milosevic eventually died in prison, four years after John wrote this. Presumably, he has gone to his just reward.

    Show Trials

    I knew that the International Criminal Tribunal for the Former Republic of Yugoslavia (ICTY) was jinxed when I heard Mary Robinson explaining the indictments. Once the president of the Irish Republic and now the UN High Commissioner for Human Rights, she is one of those invaluable public figures whose mere presence signals that something stupid is happening. In this case, she explained that, no, no one could plea bargain with the accused, notably not with Slobodan Milosevic, who was still in power and arguably willing to trade exile for amnesty. She insisted to some plainly flabbergasted journalists that the ICTY existed to do Justice, universally and irreformably.

    In due course, President Milosevic was thrown out of office by his own exasperated people. Eventually, he was delivered to the Hague to stand trial for war crimes, crimes against humanity, and the violation of various Geneva Conventions. Speaking in his own defense, last week he used the televised proceedings to turn the tables on his accusers. NATO, he said, had deliberately targeted civilian infrastructure during the Kosovo War, acting with wanton indifference to civilian casualties. He said that the West caused the breakup of Yugoslavia by the meddlesome recognition of the independence of the breakaway Republic of Croatia. Milosevic demanded that the leaders of the nations responsible for these things be called to testify.

    It was quite a performance. The sufferings of the Serbs over the last ten years were largely of his own manufacture, but there was just enough truth in his description of the policies of NATO and the West to make it impossible to dismiss. His oratory did nothing to answer the well-founded charges against him, but it did give heart to his supporters back home, and indeed to the enemies of international order everywhere. This is not a good thing.

    It's also not the first time this has happened. The model for the ICTY was the tribunals established by the victorious Allies after the Second World War. The particular precedent for the trail of Milosevic was the Nuremberg Trial of the surviving Nazi leadership in 1946. Few men were ever hanged with greater justice than the defendants in that proceeding, but the star of the show was Hermann Goering.

    The prosecution did not quite lose control of the trial, but those who saw the proceedings were shaken. Goering spent most of the Nazis' dozen years in power shooting morphine, dressing up in opera costumes and stealing works of art; he was almost too zoned to notice when Germany lost the war. Confinement awaiting trial on capital charges, however, cured him of his addictions and concentrated his mind wonderfully. He forcefully argued that the court had no legal foundation and that the Allies' defense of human rights was hypocrisy. As with Milosevic today, his defense did not really address the charges, but it laid the groundwork for a future defense of the regime. The only book I have ever read by David Irving was a biography of Goering, which says the prosecution did lose control of the trial. (Irving has his own blog, by the way; you have to wonder about these people.) The effect of Goering's performance was limited, because it had to pass through the press. That, of course, was before such events could be televised.

    The theoretical basis for international tribunals is still often shaky, particularly when their jurisdiction is mandatory, and most especially when the law they are supposed to apply is criminal. However, the international system has slowly been answering the questions about sovereignty and the sources of law that the existence of such courts raise. An issue that has never been addressed, at least to my knowledge, is this: when the defendants are former heads of governments or responsible ministers, they simply are not subjects, but sovereigns.

    International criminal law is based on the limitation of the traditional scope of sovereign immunity, under which heads of government could not be held liable for their actions in any foreign court. The limitation is not unreasonable, but it does not change the fact the sovereigns are still sovereigns. Officials who have exercised sovereign power in a way contrary to international norms are not being tried for breaking a law, as ordinary subjects would be before a domestic court. Rather, sovereigns are tried for bad policy. Furthermore, they are tried by their peers, by other sovereign powers. Even the world-sovereign that sometimes flickers into existence in international forums is still no higher in the scheme of things that the sovereign being tried.

    Usually, when defendants are tried in criminal cases, they are not permitted to argue that the law they are accused of breaking was a bad idea. That, however, is precisely the kind of argument that the sovereign officials must be permitted to make. They have been called to account in a political dispute, so naturally they talk politics back. Their appeal is not only to the tribunal, or even chiefly to the tribunal. They speak to their own constituents.

    I am not one of those people who think that the idea of international law is incoherent. There is even something to be said for international criminal tribunals; someone has to hang these people. Nonetheless, these prosecutions are a disaster looking for a place to happen.

     

    Saturday
    Dec222012

    Co-dependence of Natural Law and Positive Law