Rogues and The Rule of Law

When Kofi Annan said, "Today the rule of law is at risk around the world. Again and again, we see fundamental laws shamelessly disregarded -- those that ordain respect for innocent life, for civilians, for the vulnerable -- especially children," was he enunciating a basic principle of human conduct or merely abandoning a moral principle? Is ideology (of which "morality" is a sub set) a better guide to action than the concept of legality?

He was, according to this conservative perspective.

To the Left, legality matters most, while to the Right, legality matters far less than morality. To the Right and to the religious, the law, when it is doing its job, is only a vehicle to morality, never a moral end in itself. Even the Left has to acknowledge this. When Rosa Parks refused to give up her seat to a white man on a Montgomery, Ala., bus in 1955, she violated the law. Therefore, anyone who thinks she did the right thing is acknowledging that law must be subservient to morality. Why, then, must the overthrowing of Saddam Hussein be subject to international law as determined by Communist China, neo-KGB Russia, amoral France and the thugs who rule Syria?

Sounds good, but what does it mean? Is the law only a vehicle to morality or is the opposite true? If morality is an end, whose morality are we talking about? Has neuroscience or evolutionary psychology discovered a universal morality that would serve as a standard? Or is morality subjective, subject to the personal views and even whims of individuals?

Let's take Rosa Parks' case. The fact that the law at the time forbade black people from sitting at the front of a bus, it seems to me, is more of a reflection of the morality of the people of the South than the other way around. By the 1960s, American public opinion had caught up with much of the rest of world. It viewed the principle of "separate but equal" as discriminatory. In other words, it was an idea that conflicted with the basic freedoms guaranteed by the highest law of the land, the Constitution. The ultimate rejection of laws such as the one that put Ms Parks at the back of an Alabama bus came about because of education, the accumulation of knowledge, scientific thinking and a rejection of the morality inherent in the original Jim Crow laws.

Not morality but specific enlightened views forced the changes in law that discriminated against the Rosa Parks of America. While passion for a cause played a role in accelerating this change, it was passion for the law that made it possible – for the principle of equality as embodied in the US Constitution.

The rule of law, not subjective moral views (some of which then and now favor a segregated society) is the only real moral force in a democratic society. The law must stand above individual beliefs. It must enable people to live together peaceably and without the need to use force to resolve their differences (something that prevailed through most of human history). But the law is not merely a code for domestic action, it is a principle that can and should apply to all human activities, including international relations among nations.

That was the point that Kofi Annan raised about the war in Iraq. By the standards of international law, America's invasion of a sovereign nation, pre-emptively and not in self-defense, was wrong. There is no logical defense of US actions, not even from the pragmatic depths of apologists in the administration, the press and the neocon right. Not only was it against international law, it was the wrong war at the wrong time in the wrong place! It has increased the terrorist threat against America, Americans and America's allies and has opened a Pandora's Box that is currently rushing towards civil war.

"We're losing the country, one town at a time. It wasn't long ago that Steve Gilliard and I mapped out the obvious insurgency strategy -- melt away in the face of superior US firepower during the US invasion. While US officials and the warbloggers gloated that entire Iraqi units were disappearing without a fight, we knew that it wasn't the good news they thought it was -- these Iraqis were bidding their time. They would fight on their terms, not ours. Not that we didn't have a window of opportunity to set things right, and to prove that we were a benevolent force. But the electricity never came back on consistently. Abu Ghraib happened. We were responsible for too much "collateral damage". We blew the Fallujah uprising, both by going in too quickly, and then by withdrawing too quickly (hence handing the insurgents a morale-boosting battlefield victory). And the insurgency bid its time. Now, we're relegating to such Orwellian absurdities as calling insurgents "terrorists" and "anti-Iraqi forces" as we take heavy incoming and experience an ever-growing death toll and fatalities rate." (See also David Stout's "Senators Sound Alarm Over Iraq"). All FUBAR In Iraq, Daily Kos, September 13, 2004:

In Bush's Lost Year, the Atlantic's cover story for October, James Fallows argues that over the course of 2002, President Bush squandered myriad resources and opportunities as a result of his drive to war against Iraq. Among the opportunities lost, Fallows argues, were a chance to reassess our "inglorious bargain" with Saudi Arabia, a chance to wage a comprehensive war on terror, and a chance to improve the situation in Afghanistan—all amid a climate of international solidarity that followed September 11.

Perhaps the most worrisome development, Fallows suggests, concerns the threat posed by the other members of the "axis of evil"—the ones that we know have or are developing weapons of mass destruction. With our standing in the international community diminished, our military considerably weakened, and the trustworthiness of our intelligence in doubt, he explains, Iran and North Korea have much less to fear from America than they did before Iraq: "the United States now has no good options for dealing with either country."

Law and Ideology provides a deeper perspective into this question.

If law is a system of enforceable rules governing social relations and legislated by a political system, it might seem obvious that law is connected to ideology. Ideology refers, in a general sense, to a system of political ideas, and law and politics seem inextricably intertwined. Just as ideologies are dotted across the political spectrum, so too are legal systems. Thus we speak of both legal systems and ideologies as liberal, fascist, communist, and so on, and most people probably assume that a law is the legal expression of a political ideology. One would expect the practice and activity of law to be shaped by people's political beliefs, so law might seem to emanate from ideology in a straightforward and uncontroversial way.

"Ideology" was a relatively new word when Marx and Engels used it in The German Ideology in the 1840's. It had been coined by the French rationalist philosopher Destutt de Tracy, in the 1790's, to refer to the "science of ideas," as opposed to metaphysics. It very quickly took on a pejorative sense, and Marx and Engels use it in that way in The German Ideology; there "ideology" generally refers to theory that is out of touch with the real processes of history. The ruling ideas of an epoch, according to Marx and Engels, "are nothing more than the ideal expression of the dominant material relationships , the dominant material relationships grasped as ideas." But the relationship between the ruling ideas and the dominant material relationships are instead seen in reverse--people think that material relationships are the expression of the ruling ideas rather than vice versa:

The Nuremberg trials that followed World War II to prosecute Nazi war criminals emphasized a principle that needs to be better understood by all of us. The Rule of Law.

The point seems to be that, without the rule of law, international relations among nations is not possible; the world is reduced to the law of the jungle. This, It seems to me, is what we are now witnessing in Iraq – the law of the jungle. No doubt this is not the intention of the current administration. Nevertheless, this is the reality on the ground. That makes Bush's appearance at the UN this week even more ludicrous. According to the American president, things are going well in Iraq.

By this standard, things are going well on the planet earth and we need not worry about terrorism, poverty, the destruction of the environment, biodiversity and the widespread belief in supernatural beings that guides the actions of leaders around the world, including the USA.