With respect to formal law and regulation, it is worth thinking about her arguments that “[a] fresh type of segmentation is occurring inside the state apparatus, characterised by a growing and increasingly privatised executive branch of government aligned with specific global actors (notwithstanding nationalist speeches), alongside a hollowing out of the legislature whose effectiveness is at risk of becoming confined to fewer – and more domestic – matters.”  This decline of legislative power (and the privatization of government) is a big issue for domestic law in the US, with extensive “executive power” debates (small examples include this recent NYTimes article here and a Boston Globe article on the presidential candidates here – though many have argued that this increase was a trend under Bill Clinton as well), all too often without considering whether or not this is happening with respect to more “international” issues, whether increased power and privatization are linked, whether this is happening elsewhere in the world and if there is something larger to be considered.  And this should all be considered beyond the hot-button issues of the war on terror and include executive power in economic matters as well.

This also fits in nicely with notions of transnational regimes for economic policy-making (run by “experts”… “elites” might also be appropriate… perhaps these experts are more at ease in executive branches than in legislative… or are more able to get what they want?) per David Kennedy’s work.  Alas, the wonderful former HLS/Fletcher prof and student is now at Brown as VP for international affairs and a prof of international relations.  Congratulations to him, but surely a loss for HLS. 

Of course the struggle of lawyers in Pakistan is a good example of how concepts of fairness and justice can be real motivating forces for change.  In some ways perhaps people can adjust to different systems, situations and forms of government, at least until enough people perceive of things as being unjust or unfair.  Democracy of course can play a role in this but that is not always the case and perhaps putting reform in semantic boxes (”democracy” or “freedom”) for sale may be less effective.

Of course, one’s concept of what is just may not comport with another’s; the justice sought by religious leaders may be very different than those sought by civil servants.  But that is a whole different issue.  In any event, an interesting read and worth thinking about, especially for those engaged in rule of law reform.

To follow-up an earlier post here (Compassion and IL)… perhaps while focusing on individual cases and stories gets more attention/fundraising in the West, and perhaps comports more with “our” sense of justice, perhaps the individual approach is precisely the kind of western view that is often criticized as being too individualistic and not taking due regard of culture or communities.  Individual stories of tragedy and violations of rights may make for more money and more PR, but do they really help solve the overarching problems?  Does it just lead to a temporary flow of aid and/or attention that is so often after-the-fact and fades as soon as an individual case or crisis is resolved?

Of course there is likely a balance somewhere, and different places are different, but perhaps there is a conflict between desires of some in the West to help, driven so often by individual stories, and the real needs of people, driven so often by large-scale concerns that often threaten whole communities.  It is interesting that some legal systems, including older systems such as the Fetha Nagast (Law of Kings) that was used in Ethiopia until the 1930s (originally compiled by an Egyptian Christian in the 13th century), and others, took very much into account community-level justice and positionality, even when it was a single case against an individual defendant.  Many of today’s legal systems remain far more focused on communities than western systems do, whether or not these systems are seen as conforming to the western view of “rights” (and often, indirectly, creating tension between domestic legal systems and international human rights treaties signed up by the countries).

And perhaps the individualized justice view is not really as all-encompassing in the West as some might think, with strong notions of social justice and resolving problems that communities face still in existence, even if the legal system tends to see people as sole individuals apart from their communities or surroundings.  Perhaps there is a tension here too between retroactive punitive justice against individuals and what a community might see as “justice” or even more so, what a community might see as the best way to resolve a problem or right a wrong. 

It is certainly an issue worth a lot of thought as Tribunals and cases proliferate, and as IL is still largely based off of “western” concepts of individual liability and responsibility, and is perhaps more even more western, by taking the ”latest” or most acceptable to the modern parties (or, more accurately, the elites) in a given treaty or customary world’s view of the law, than the law in the countries its proponents and drafters originally came from. 

It would be an interesting study to take a look at such recent decisions around the world and see just what the decisions are actually doing and how they fit into respective spheres of power.  Are these decisions ”appropriate” challenges, attacks, or possibly ways of just hiding or delaying a process and thereby allowing an election to look more legitimate (as was possibly the case in Nigeria)?  Of course each country’s situation is different, but it would be interesting to see a survey of the different ways high court decisions in elections are made and/or used.  It seems that comparitive election law is a hot topic, with such great new material.    

Studying these decisions might help play with assumptions that more “rule of law” is better…it might not just be a question of quantity of decisions, but also substantively whether or not they are in the interest of justice or political decisions are being made via the cover of the courts and the “law” (as some have argued happened here in Bush v. Gore).  Of course only the most naive feel that the courts are not political to some extent everywhere, but there are lines and borders of restraint, and the “rule of law” is always trying to define what these are.

The debate on human nature is endless (and has been oft mentioned here), but it is worth again thinking if there really is at least something universal, and, as the article suggests, it is not really every “single” creature against every “single” other that is wired into our distant past.  If there is an inherent group connection, how far can this extend?  To family, to the large community, to a nation, to the world?  What are the limits on it?  Does there need to be an “other”, a human other, or can this other be inanimate, such as the forces of death or poverty or degradation to humans everywhere?

The dissing of “human rights” or other norms as entirely culturally or socially constructed (a view shared, oddly enough, but those on the so called post-modern hyper-front usually viewed as “left” but more so as a caricature and also by the “pragmatists”/formalists who tend to be centrist/right… perhaps the divide is more modern/post-modern than anything) is a common critique, but many scholars/humans/etc. still feel there is something common there, at least some common thread of humanity.  And examples to the contrary of this or that custom are often reductionist and do not take into account that of course there is variation (and various levels of control, power structures, views, etc.).  Examples of “other cultures” that do not “share out values” often select the worst examples, ignoring that such negative examples of our “morality” could be found in any culture.  Of course everyone from human rights activists to the Bush administration have made claims of the universality of X or Y principle.  The hard part is sorting through the mess to see what is common ground and what can be used constructively to make the world a better place.   

At least this articles shows the continuing exploration from all angles of what, if anything, is truly a basis for norms.  (…Of course the morality of chimps might be socially/power imposed too.  Viva la chimp revolution!)

And of course the research on primates and other animals has ethical implications; the more we learn of the cognitive and “moral” ability of animals, the more it might suggest we have some commonality and perhaps owe something to them.

As Maritain observed, it might not be that Americans are ignorant of history, rather that history is not seen as guiding the present to the same extent some in Europe might see it.  While this might be interesting in terms of popular views of IR and IL, it might help explain not only positivism’s rejection of natural law but also, paradoxically, alternative theories that abound in the US (even overtly natural law-based theories) that try to bring in other fields and viewpoints.  If one is free from the weight of history (or at least if those in a position to make the rules feel that way) then one can make up the rules and one is free to look around for inspiration in economics or psychology or wherever.  Whether one sees this situation as “anarchy” (in the colloquial sense) that needs to be controlled or a kind of creative space is an ongoing divide in the US of course, politically and otherwise, and in legal spheres it can lead to anything from Holmes rejecting grand visions of history through his disillusionment in the Civil War to “happier” views of those rejecting “history” due to the supposed youth and possibility of America.  But as an example, seeing economics as a tool to take to IL, rather than as either an all-encompasing power (in Marxist/materialist terms) or as a distinct field in its own path (perhaps outside the grand arch of history), perhaps could only happen in the US.  There was less baggage to economics, so it was easier to carry it over to law.  Same thing with crit views and deconstructionism and all, to the extent they are used in law.  One doesn’t have to drag along the ages of history and battles between ideas, along with the implication that this is all part of that historical tragectory; one can simply cherry-pick ideas to support arguments.  In this prism, the dominance in the US of positivist and realist viewpoints makes sense, along with more populist morality-tinged natural law views, even overtly religious ones.  As the article notes, this also may explain why Marxism/communism never really caught on in the US (its “root incompatibility” as the article cites Maritain), because it requires a Juggernaut of history (or at least a view of history being as such) preceding it. And one can go before Marx to Hegel of course, and then run around through the determinist cannon.

It is at least possible to conceptualize a divide not just on positivism or realism v. natural law or post-natural law or even positivism or realism v. formalism but also on positivism or realism v. historic determinism or at least “requirements” demanded by history which in part justifies the “inherent bindingness of IL view” through the prism of history binding actors, including individuals, states, etc..  It also suggests why European formalism is not merely privileging form for its own sake or why the UN and others are not necessarily relying solely on the underlying validity of the norms being put forward (whether their basis be “rationality” or “morality” or “religion” or “human nature”) but perhaps in part at least privileging the force of the past and the “development” of history as sometimes evidenced by form (and of course as interpreted, politicized, etc.).

So should anti-European-style-law, or especially anti-UN-”fluffy natural law do good”-types spend some time not only critiquing St. Augustine, but also take a shot at Hegel?  Or is this simply a corollary to a view of natural law moving from a religious basis to more human-nature bases? I suppose it is, if historic determinism is just another part of “human nature” or fits under the “natural law” umbrella writ large.  Or it is something else entirely?  Is “determinism lite” playing any role in the creation of IL, is there any real evidence that this is a factor, or is this just a selective interpretation and a buying-into of stereotypes of Europeans and Americans?

The article suggests other debates, from the scope/existence of American exceptionalism, whether the US has its own narratives of history, to the use of European scholars in the US or what have you – all very worthy discussions in the field of IL.