Easy Cases Make Bad Law

Chris Lawrence, on Facebook, brings attention to Eugene Volokh on the racist-frat-at-Oklahoma explusions. Volokh comes to the reasonable conclusion that offensive racist speech may be censured in a number of ways, but expulsion from a public institution is not one of them. This puts me back in mind of my best unrealized paper idea from my academic days: "easy cases make bad law." People who study law know why hard cases make bad law--they're idiosyncratic instances that are unlikely to repeat in a manner conducive to the generalizable form law must take, virtually guaranteeing unanticipated consequences--but easy cases do, as well.

The impetus for the idea came from studying the formation of the Nuremburg Tribunal law: France, Britain, Russia and the US get together to figure out how to improve of the then-reigning plan for dealing with senior officials in the Nazi government: summary execution. One can read the US representative's report, which includes minutes of the discussions of the four representatives, and be horrified at the way the law was put together. Sometimes standard legal procedures were followed, sometimes not; sometimes appeal was made to the basic principles of legality, sometimes they were conspicuously avoided; sometimes discussions were had in great detail, sometimes central problems are waved away. No issue is more depressing than the treatment of 'aggressive war,' a concept everyone seems to know and no one is able to define in a way that separates out Nazi from Allied actions. The IMT punts on the question, and makes little use of the category--and it's still a problem 50 years later during the writing of the Rome Treaty (that formed the ICC), where everyone once again agrees that aggressive war is a problem and no one knows exactly how to define it.

It's not that the IMT was bad--under the circumstances, it was pretty good (the frequency with which the US and the Soviet Union agree on matters of legal principle should be a little disturbing). It was certainly preferable to summary execution. No, the problem was the basic situation in which the deliberation was happening. There was no particular reason to doubt that senior Nazi officials were guilty of something, probably many things. A legal system that works provides procedural safeguards and returns the 'correct' result. But: there are a lot of different institutional arrangements that can do this. The question of the system's suitability is not whether it can produce the right outcomes here, but in other, more difficult cases. On this, the general unwillingness of international criminal law to treat Nuremberg as a legitimate precedent is telling.

Back to the racist frat case. It feels satisfying to expel people who were doing something that obviously wrong, who were doing it without shame; it feels good to be able to act with maximum force for a good cause. But it's bad policy, because it won't work as well on more complicated cases: we can't throw everyone out who says anything some people find offensive.* There's also a connection to the internet's economy of shame: it feels good, or satisfying, to make someone lose their job for posting offensive material on the internet--no one's going to feel too bad for those dudes who decided Curt Schilling mentioning his daughter was a good pretext to write vile, sexist stuff about her--but it's no solution to anything. Sustainable practices--good, fair, stable practices--need a better context, need serious thought devoted to potential long-term ramifications, the difficulties of scaling up behaviors and institutions, and the facts of human fallibility when forgiving offenses or implementing justice. Most of all, there needs to be recognition that there are always a wide variety of options in play, and sometimes it makes sense to choose one other than the most extreme, even if it doesn't feel as satisfying.


*I was teaching a course on human rights when Kony2012 broke (remember that?), fortunately over Spring Break that year. By the time classes were back in session, the ICC had just convicted Thomas Lubanga for similar crimes to Kony's, for which he is expected to serve something like a dozen years in jail. The students were confused and dismayed, but I had to remind them: you can't throw the book at everyone who does something you don't like, even if they did many bad things. If you give life in prison to someone who used child soldiers, what are you going to do with the person who commits genocide?

Thoughts on Syria: at the moment, it looks more like Clinton bombing the Sudan in 1998 than Iraq III.

If the question is strictly one of justice, then some kind of intervention is demanded, if we have some capability to prevent the worst abuses of the Syrian government (and the rebels). That part's not a complicated question. What the 'some kind of intervention' is will be.

I have gradually come to oppose these types of actions, in spite of the moral clarity of the case. The problem is that most of the western world, and the United States in particular, is unprepared or unwilling to stomach the realities of intervention. Successful interventions take a lot of time--decades, not months or years; they require serious and sustained involvement--the good of the people you seek to help has to become, in some way, your good. As Tocqueville noted, though, the characteristic of America is an inability to focus on a problem for long enough to actually solve it. If it will be an issue of concern for, at best, a few months, then it's better to avoid acting.

But this is a particular type of objection, not at all different from refusing to permit a civil rights march because it might incite violence. That is to say: it is entirely up to the general public to decide what is important to it. While it may, pragmatically and in the moment, make sense to concede to the reality of the political situation, we should be aware that the entire system functions only because of a fundamental decision to be unjust. American interventions don't work because the American people don't care about the rest of the world (this is not a problem unique to America, though we are its apotheosis); it is their own intransigence that sabotages the action, not the wrongness or impracticality of the action itself.

A friend/colleague emailed me the other day to ask my opinion about the Law of the Sea Treaty. My response:

"I haven't been following it very closely, but I know the general details. To be honest, I'm not sure I understand what the fuss is about. My thinking on this and related topics was turned around by teaching the Rome Treaty and the ICC this past semester: if you look at the text of the Treaty, and the powers that are granted to the Prosecutor, they really are as broad and unlimited as American commentary against the Treaty would suggest: the Prosecutor has nearly unlimited power to do what he wants and can continue to investigate as long as he wants--no one can definitively and finally stop him. But that level of power is necessary because without it, it'd be impossible to get even a minimal level of compliance. The Thomas Lubanga case is a good example: the Prosecutor had to threaten to use his proprio motu power to start his own investigation unless the DRC agreed to help him out, and this was to get the DRC to agree to get rid of someone they didn't want to have to deal with themselves. And the Prosecutor wasn't going to get very far without the DRC's help, proprio motu powers or not. So in general, the practical limitations of politics do a lot of work and have to be figured into an analysis of the law itself, and we shouldn't rely only on the worst case scenario.

I think the LotS treaty is similar: I understand the concern about submitting disputes to arbitration, but 1. there are already widespread and accepted international arbitration boards for private economic questions, which mostly proceed without incident (Chris Whytock, who you may remember, has done a lot of work on these) and 2. if the relevant difference between public and private arbitration is the role that politics plays in the public version (and I'd assume this to be the relevant difference) politics is mostly going to play itself out in ways that make the arbitration process more conservative and small-scale, rather than larger or bolder. China, for example, is not going to accept or seek a ruling that weakens the U.S. now but might hurt it in the future. And there is also, always, the possibility of simply ignoring results we don't like, as has been known to happen with the ICJ..."

So, the claim here about freedom of religion and international law/human rights is incorrect, and points out something that has troubled me about the recent concern over freedom of religion:

..Article 18 of the United Nations Universal Declaration of Human Rights (1948) provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

That’s unequivocal. Freedom of religion means the right to live according to one’s own faith, that is, to “manifest” our religion or belief in practice, both “in public or private,” without interference from the state.

Article 18 definitely says that, and it is certainly absolute. It is also not legally binding, part of the reason it is able to be absolute. The very critically different language in the legally-binding International Covenant on Civil and Political Rights:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Paragraph 3 clearly envisions that freedom of religion does not serve as a end-all trump against claims by the state. It is not surprising that it does so, since some of the rights in the ICCPR are qualified in this way, and all the rights in the Covenant on Economic, Social and Cultural Rights are qualified under Article 2(1). The question is then whether a particular law enacts a policy that is "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." It does no good, in this case, to assert 'freedom of religion' as a defense against a law that seeks to abridge religious freedom, because the question is not whether there can be an abridgement (there can) but whether the abridgement can be justified on the grounds given.

(Via Alan Jacobs, who I imagine might disagree with my point.)

Realistic timeframe for punishment of Joseph Kony (remember that guy?), should they ever capture him: 14 years in prison. More than anything else, it was this that made my students this past semester turn into appropriately cynical consumers of international legal news.

Fred Kaplan, missing the point on targeted killing:

Finally, there is the broader concern of whether the president even has the right to engage in “targeted killing.” The issue, as Katrina vanden Heuvel argued in a Washington Post op-ed, is “the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists—even American citizens—anywhere in the world, at any time, on secret evidence with no review.” She calls on Congress to “reassert its constitutional authority” to declare war.

The questions she raises are troubling but also muddled. Congress passed a joint resolution in September 2001, authorizing the president to use “all necessary and appropriate force” against al-Qaida. For better or worse or both, Presidents Bush and Obama have invoked that authority with very wide latitude, as was intended. Congress has no further “constitutional authority” to choose or deny targets.

As for the probity of targeted killing, regardless of which branch of government approves it, it is worth noting that President Gerald Ford issued an executive order in 1975, stating, “No employee of the United States government shall engage in, or conspire to engage in, political assassination.” This order came in the wake of hearings held by Sen. Frank Church’s committee, revealing a vast dark landscape of CIA activities in the previous decades, including many attempted assassinations.

Legal scholars have disputed whether Ford’s executive order applied only to the killing of foreign government leaders (it didn’t define “assassination”). In any case, the controversy was rendered moot in 1998, when President Clinton revised the order to allow for the death of such leaders if it resulted from a counterterrorism operation. Clinton’s aides also took to invoking Article 51 of the United Nations charter, which allows nations fairly free rein in the pursuit of self-defense. Those caveats, bolstered by the Authorization to Use Military Force, passed by Congress in 2001, leaves little doubt as to the drone strikes’ legality.

I don't generally agree with Katrina vanden Heuvel on much--I didn't when I was much further to the left than I am now--but even I can recognize that the question she's asking is not about whether there is a specific law that authorizes the president to act as he does, but whether the president--any president--has the right to do so. (This is also different than asking, as Kaplan does in the next section of his article, about whether targeted assassinations are wise--i.e., prudentially) There's no contradiction, so far as I can tell, in asserting the president has the legal right to order assassinations of whomever he wants, but does not have the moral right to do so and, insomuch as the two are in disagreement, the law should be brought to reflect the moral state of affairs. Not least because there are principles that underlie the constitution and the rule of law itself that are threatened by programs such as this one.

Over at Opinio Juris, Rudi Teitel takes Samuel Moyn to task for his suggestion that the human rights movement has lost some of its moral purity. This is an incorrect assertion on Moyn's part, and not only for the reasons Teitel identifies. It's also a definitional problem with how Moyn thinks of the development of human rights. It can be a primarily romantic and moral struggle because he does not begin the story of human rights until the rise of non-governmental actors in the 1970s: Charter 77 and Amnesty International, in particular.

But this sort of picture falls apart if the beginning of the human rights movement is set at the end of World War II. Arguments over the Convention on Genocide and the Universal Declaration of Human Rights are shot through, as the saying goes, with political considerations of varying degrees of nobility. Human rights have always had an element of moral purity, and that purity has always been compromised by the fact that rights must (mostly) be guaranteed and protected by governments that sometimes have interests that are not compatible with protecting those rights. None of this should be particularly surprising, I would think, given that this is a standard and accepted element of domestic political considerations (the state has to govern its people, and then it has to govern itself).

What seems to me to be dangerous is, instead, the notion that politics somehow taints moral struggle, as though the willingness to consider and deal with the day-to-day reality of governing is somehow incompatible with having greater and more noble aims. When I teach my law-and-society class, I like to focus in on the U.S. Supreme Court's jurisprudence on race and education for precisely this reason. The moral vision will tell you, correctly, that segregation is wrong and unconstitutional. What it will not tell you is how to go about fixing the problem: do you bus students around? for how long? etc etc. In the same way, human rights can tell you that South Africa's apartheid regime is wrong, and explain why, but it provides no blueprint to rebuild South African society after apartheid has ended. But human rights needs to be able to accept the importance of both these tasks.

Norm catches out an Archbishop claiming that Article 16 of the Universal Declaration of Human Rights defines marriage as between a man and a woman, and then engaging in some poorly chosen analogies. But Norm misses the reason the Archbishop's argument is wrong. Article 16:

• (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
• (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
• (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 16 should be read with reference back to the Preamble, italicized section mine:

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, 

See also Article 3 of the International Covenant on Civil and Political Rights, which has a companion article in the Covenant on Economic, Social and Cultural Rights:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 16's reference to "men and women" is intended to indicate, as the other texts make clear, that this right in particular belongs to both men and women. There's nothing in the travaux (at least that I'm aware of) that interprets Article 16 as "men can only be married to women," unsurprising in that the possibility this might not be the case probably didn't occur to anyone (though Article 2 of the ICCPR, which appears also in the ICECSR, says that rights must be protected for everyone "without distinction of any kind," with a following list intended to be illustrative but not, according to the language involved, exhaustive). Nevertheless, it's a violation of both the text itself and the original intent of its framers to read it in this way.

Links mostly for my own interest: a series of criticisms on Beth Simmons' new book on human rights, by Samuel Moyn: 1 2 3

And how, I now find myself wondering, is one supposed to lecture on a document which not only has no organizing principle I have ever been able to discern, but also has no force as a legal document? Universal Declaration of Human Rights, you'll be the death of me.

Via PTN, I see Bryan Caplan appears to be living in a different moral universe than I do:

The My Lai Massacre is now almost universally considered a heinous war crime. The Hiroshima bombing, in contrast, enjoys bipartisan admiration.

I mean, what to say? The most prominent pro-bomb view I know of, within the academic community, is that one can justify dropping the atomic bomb on Hiroshima only because it proved to be a means of ending the war in a significantly faster manner (n.b. also that it's much harder, though not quite impossible, to justify Nagasaki on these terms). Hundreds of thousands of people were going to die one way or another--hundreds of thousands at a minimum--and the only choice actually confronting policymakers was which method would be employed. It was a morally problematic decision that can be justified, if barely, because of the situation. And these are the pro-bomb dropping arguments. The anti-bomb arguments can be withering, see for example G.E.M. Anscombe's "Mr. Truman's Degree"; Anscombe differs in degree of intensity but not in belief from the vast majority of philosophers and international lawyers on this question.

To summarize: Hiroshima's almost certainly a war crime. If it isn't, it just barely misses due to some very unique circumstances. Either way, there is certainly a degree of moral guilt that should attach in either case.

But I take it this is not the real question Caplan's asking, even though he phrases his query in strictly moral terms. To address the legal question: why was there no war crimes trial for the decision to bomb Hiroshima? Some of it is certainly p.r. and relative power: the optics of My Lai were bad and inexcusable at a difficult moment in U.S. foreign policy, and a (non-international) trial for those who committed the violations had to happen as a matter of course once the violations were discovered. Similarly, no one was going to take the U.S. to court in 1945, if there were a court competent to hear a war crimes case, especially not after they just ended World War II, their actions morally legitimate or not.

But it's also not clear to me that there was any law that existed in 1945 under which the U.S. could have been tried. It's a fact of the law of war in long standing that you're not allowed to do things like intentionally shoot a bunch of civilians, and it's a feature of international criminal law beginning with the Nuremberg IMT that superior orders no longer suffices as a defense against a war crimes charge (though it is permitted as a mitigation of responsibility); the U.S. in the 1960s was a signatory to conventions to this effect; it had legal obligations that had to be met. It's not clear to me that there existed any law that made the use of a nuclear bomb illegal under the law of war, so I'm not sure it could qualify as a war crime.

In this case I think the combatant/noncombatant question is the wrong analogy to make: Hiroshima is not like My Lai in that it involved the intended death of civilians. Instead, Hiroshima is like dropping a regular but very powerful bomb on a city. For most of World War II, it was the case that bomb-dropping was an extremely inaccurate science: one would have to fly multiple missions in order to guarantee the destruction of a target (Graham Allison writes in Essence of Decision that part of the reason Kennedy scraps the possibility of taking out Soviet facilities on Cuba during the Cuban Missile Crisis is that the Air Force estimated needing at least three missions to take out each target, and that's with an additional twenty years of technological advancement). In fact, the only real guarantee one had in dropping a bomb is that it would probably not hit its intended target. The atom bomb dropped on Hiroshima is more powerful than any other bomb dropped previously, but by less of a scale than one might imagine: twenty or so times more powerful that the biggest of the British bombs. Details notwithstanding, the point is: one doesn't prosecute soldiers or governments from dropping bombs, because that's an expected part of war, and legitimate most of the time; and, if one considers nuclear bombs to be of a different class or type, there's no new law to cover them; and the provisions by which old laws can be used to cover new cases are not well-developed in 1945.

(The x-factor here, about which I admittedly do not know, is how the bombing of Britain was categorized by the IMT. One might well think Coventry was a good example of a parallel case likely to be prosecuted. But I'm not sure whether it was prosecuted, or convictions were reached, under War Crimes or Crimes Against Peace counts. Because the U.S. was fighting, under the terms of international law, a war of defense against an unwarranted act of aggression. So if it's included, but included under crimes against peace, there'd be no comparable analogy to the U.S. If it's included as a war crime it'd matter if it becomes a war crime as part of an aggressive war or is a crime as such.)

I'm in the process of teaching the development of legal institutions related to human rights since 1945. It's forced me to confront some of the more important changes in the way I understand the IR literature. My default position on entering grad school was a kind of realism: most of the political world is bound by power and relative status and the distribution of power in the world system is highly determinative of what actually happens. With respect to international relations proper, I've slid into a kind of institutionalism (realist complaints notwithstanding, there are an awful lot of them, and progressively more); in international law, I've cautiously thrown in my lot with the CLS people (if ever there were anything that has consciously been constructed by human design, it's international law after 1945).

And, of course, the neat paradigmatic and disciplinary boundaries rarely hold up in the actual world, which is why my students will be reading ur-realist Hans Morgenthau talking about various attempts of the UN to use institutional resources to capture more power, and liberal institutionalist par excellence Anne-Marie Slaughter arguing that the UN is the United States' attempt to remake the world in its own image. But Slaughter's piece is written in a very typical political science-y style, whereas Morgenthau--well, as I kept reading it, I thought "my students are going to love this." Realism wins a lot of converts because, at its best, it's much better written. For example:

"The United Nations is like a building designed by two architects who have agreed upon the plans for the second floor but not upon those for the first."

It might be wrong, but it's memorable.

In the Mad Men episode "The Summer Man," Don, writing in his journal, says he's never written more than 250 words in his life. The episode intends us to think, like Don, that this is a great indictment of his work ethic. However, one would think that an ad man, of all people, would understand that brevity is a great problem--writing less is always harder than writing more.

All of this is a roundabout way of saying I have spent the afternoon working on a 200-ish word summary of the freshman seminar I mentioned yesterday, these 200 words posing substantial difficulty. I've written about 1200 words, in four or five different drafts, and finally have it pared down to 250 or so I find mostly acceptable. It has to appeal to freshmen, sound interesting, outline the content of the course, and make an appeal to relevancy. This has mostly be a test of how many adjectives I happen to know.

I will be glad to return to problems which require 3000 words to be resolved.

A request of my readers: does anyone know of a good treatment (narrative or philosophical) of the German aggressive war and war-related atrocities in WWII? I am assembling material for a freshman seminar that will look closely at the 1945-1948 period, and I want to spend two or three classes building up the various perceived problems to which the Nuremberg IMT, UN Charter, and Universal Declaration of Human Rights/Convention on Genocide are responses. I have a couple obvious candidates for the Allied side of things ("Mr. Truman's Degree" and Walzer's "WWII: Why Was This War Different?") and no shortage of Holocaust-related narratives, but a perusal of my memory, my bookshelves, and the intertubes isn't bringing anything to mind.

Anne-Marie Slaughter, bless her heart, is doing her best to keep my dissertation topic relevant. For the record, I do not think much of Responsibility to Protect doctrine (see the usual valid criticisms here). I will eschew the possibility of saying more because the argument in which I say more constitutes the hook for my book project. Suffice it to say I agree with Julian Ku that Slaughter gives "a pretty fair description of the trend in thinking among international law scholars in Western liberal democracies," though, unlike Ku's point, I think the vital word is scholars not Western. (Well, the vital word is also Western, but that's a different kind of objection).

I've been sitting on this Slate/n+1 article on humanitarian intervention for awhile because I'm not exactly sure what to say about it. The essay hits a number of points with which I am in substantive agreement--e.g. the UN Charter and the UDHR work at cross-purposes--but then proceeds to say nonsensical things, like that the moral clarity of some human rights is a problem:

The function of these words—as well as the word genocide, to whose propagation the book is partly devoted—is to place the evil people beyond the pale of politics, of negotiation, of human intercourse. Would you shake hands with a mass murderer? With the invocation of the word genocide, we move into some other sphere of human relations. Thought, strategy, negotiation shut down; there is only right and wrong, only fight or flight. Which is precisely, in fact, the point.

A politics this morally coercive may explain why a president who is a former law professor, and who came to power with the mandate to restore the rule of law, would so brazenly ignore the Constitution. But a politics this morally coercive is not a politics at all.

What has happened to human rights in the last 20 years is a hijacking, of the sort Napoleon managed with the Declaration of the Rights of Man when he turned Europe into a bloodbath, as Power would put it, under its banner. The search around the globe for genocides to eradicate is the ultimate rights perversion, for it reduces human rights to the right not to be brutally murdered in a particular way that fits the definition of genocide given in the Genocide Convention. This cannot be anyone's idea of a robust human rights. If human rights are to be reclaimed they need first of all to be restored to the realm of politics. Not the realm of morality, which is always and ever a discussion of good versus evil, but politics, a discussion and argument over competing legitimate aims—e.g., the aim of honoring sovereignty and not waging war, versus the aim of protecting the defenseless and ensuring their rights.

Of all the places to make a stand on the importance of flexibility in the scope and weight of human rights, genocide is an odd choice. Isn't the fact everyone thinks genocide is bad a good thing? Further, it's well-understood in the literature that the wrongness of genocide does not translate in any straightforward way to political facts: who should intervene, when intervention is appropriate, etc.* I was talking with a colleague about recent developments in Somalia and argued against intervention in those circumstances even though intentional forced famine is #2 on the list of rights violations everyone can agree are bad and might merit forcible response.


*To be clear: well understood in the literature, not well understood by political decision-makers. This fact is sometimes lost on those in the literature. My favorite expression of this is a sentiment expressed at least twice with slight variations in Theodor Meron's The Humanization of International Law (a great book, present criticism notwithstanding): "In this area, political reality regretfully lags behind legal principle." Those silly politicians, if only they knew the answer's already been figured out!

The Libya intervention was and is a strange bird, and for a lot of reasons:

1. It was a UN action to stop potential human rights violations largely before they started
2. It specifically invoked the Security Council's Chapter VII powers. For those who don't know, the Security Council is essentially allowed to authorize whatever military actions it likes for whatever reasons it finds sufficient.
3. The UN resolution threw open the doors to whoever wanted to be involved.
4. The resolution mentioned the still somewhat controversial Responsibility to Protect doctrine.

I would've bet a large pile of money against any of these outcomes before they happened. Though they did happen, I would bet a similarly large pile of money against their happening again: international law on these questions is filled with too many one-off events, perceived to be the start of something new, that were never repeated.

For these reasons, I'm not surprised that some African scholars are disputing the legal basis of the intervention. Unfortunately, though they dress up their concern in the language of #3, which does seem to me to be of dubious legality, their real problem is with #2. On that point, they're out of luck, because (to the best of my knowledge) everyone in the mainstream agrees that the Security Council gets to do whatever it wants, as that's the whole point of having a Security Council in the first place.