Lawyers on both sides of the recent Senate trial chose to ignore certain philosophic and jurisprudential foundations of the United States Constitution.[i] These “peremptory” foundations lie recognizably in Natural Law,[ii] immutable rules that apply, by definition, to all peoples and for all time. Though it is plainly too late to remind the pertinent political parties about the salient relevance of Higher Law principles to the Trump impeachment trial, the American public ought still learn about such original precepts for future jurisprudential reference. Ironically, these core precepts were already well-known and respected by the Founders, especially Jefferson, Franklin, Madison, Hamilton and Jay.
Most assuredly, when the Irish poet William Butler Yeats penned “The Second Coming,”[iii] he did not have United States Constitutional law issues in mind. Nonetheless, Yeats’ famously-crafted warnings about “passionate intensity” and “blood-dimmed tide” should have a palpable resonance in American politics. How could they not?
The just-completed Senate trial concerned US President Donald Trump and purposeful legal remedies for allegedly impeachable derogations. Though disregarded at trial, these prospective remedies lay latent in the American nation’s most rudimentary legal principles. For future reference, these core principles will need to be taken more seriously by anyone who might still value a justice-based United States.[iv]
Though little known, there exist several “peremptory”[v] principles of jurisprudence that could have proved applicable to seriously conceived impeachment motions. These relatively esoteric but still valid principles concern the Higher Law underpinnings of the United States. For the future, at least in principle, such basic expectations represent vital national security principles that could help protect Americans from presidentially-inflicted harms.
Recalling the expanding nuclear weapons context of world politics, such harms could at some point display fully existential qualities.
The pertinent issues are primarily legal in both nature and codified form. In relevant jurisprudential terms, we must begin at the beginning. Remembering the celebrated jurist A.P. d’ Entrevesclassic text on Natural Law (Oxford University Press, 1951): “The Natural Law (Higher Law) is absolutely binding, and overrules all other laws.” From the standpoint of any still-to-be considered impeachment strategies, this recollection could point the way to much more usefully broad bases for any future US presidential removal effort.
“In the beginning….” For the United States, the principle of a Higher Law has always been more than just “any principle.” Unmistakably, it is one of the most enduring and canonic principles of the country’s acknowledged legal foundation.[vi] Revealed, inter alia, in both the Declaration of Independence and in the Constitution,[vii] it rests solidly and incontrovertibly upon the willing acceptance of right and justice for their own sake.
For the United States, considerations of right and justice have never been narrowly instrumental. On the contrary, at least until the recent impeachment trial acquittal, they have remained unwavering and meaningfully determinative.
Americans should take heed, even “after the fact” of the recent jurisprudential failure. Such foundational principles, as famed 18th century jurist William Blackstone once declared,[viii] represent nothing less than “the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover so far as they are necessary for the conduct of human actions.”[ix]
Plainly, Thomas Jefferson was a learned US president, even at a time when laborious study was vastly more complicated and difficult than it is today. When Jefferson – without any benefit of electric light, air conditioning, central heating, computers or even a manual typewriter – set to work on the Declaration, he drew productively upon Aristotle, Cicero, Grotius, Vattel, Pufendorf, Burlamaqui, and most prominently – John Locke (Second Treatise of Government).[x] Asserting the right of revolution whenever government becomes destructive of “certain unalienable rights,”[xi] the Declaration of Independence posits a discernible natural order in the world, one whose irreducible laws are external to human will and remain eternally discoverable through staunchly determined applications of human reason.[xii]
Although, by the eighteenth century, God had been “withdrawn” from any immediate philosophical contact with humankind , and had been transformed into the Final Cause or Prime Mover of the universe, “nature” still remained available as a convenient and altogether capable substitute.[xiii]
There is more. Reflecting the unique influence of Isaac Newton, whose Principia was first published in 1686, all of creation could now be taken as a recognizable expression of divine will.[xiv] Reciprocally, however, the only true way to ever truly “know” this original will of God was to first discover the underlying and eternal Law of Nature.
In essence, Locke and Jefferson had deified nature and “denatured” God.[xv]
But what exactly was this purported “Law of Nature,” a basic law that is accepted in the Declaration and Constitution as a continuously binding set of obligatory norms, and which could still pertain to a present-day American president? Above all, Jefferson learned from Locke, such law was a necessary source of Reason: Still more exactly, according to Locke’s Second Treatise:
The state of nature has a law to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….
In transgressing the law of nature, the offender declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men….
A criminal, who having renounced reason, the common rule and measure God hath given to mankind, hath, by the unjust violence and slaughter he hath committed on one, declared war against all mankind.[xvi]
As reason is the only sure guide to what God has given to humankind, it must inevitably become the only reliable foundation of true law. This Lockean and Jeffersonian idea of a transcendent or Higher Law is made manifest not only in the Declaration of Independence, but also in the Constitution.[xvii] Inter alia, the Ninth Amendment, in stipulating that “the enumeration of certain rights in this Constitution shall not prejudice other rights not so enumerated,”[xviii] reflects codified belief in a perpetual law that is justly superior to any expressed will of human governance.
This vital conviction runs continuously from ancient times, especially traditional Jewish Law,[xix] up to the present intellectually detached “Trumpian moment.” The evident roots of such a prospectively lethal detachment lie in a broadly cast indifference to anything based upon Reason and a more person-specific indifference to history. What ought we ever really expect from a president who unambiguously prefers “attitude” to “preparation?”
There is still more. The Fragments of Heraclitus attest to the venerable antiquity of a Higher Law: “For all human laws are nourished by one, which is divine. For it governs as far as it will, and is sufficient for all, and more than enough.”[xx] Such Heraclitean dicta, offered somewhere around 500 B.C.E., entered easily into later Stoic philosophy and described a universal and expectedly rational body of human law. Hard as it may be to imagine amid American politics in 2020, this intellectual corpus was familiar to many of the Founding Fathers.
Those people actually read books, serious and challenging books.
In 442 B.C.E., Sophocles clarified the idea of true law as an act of discovery, thus challenging the superiority of human rule-making in Antigone.[xxi] Already exploring inevitable conflict between claims of the state and those of an individual conscience, this classic challenge has since been taken to represent the incontestable supremacy of proper Higher Law overall man-made law. Later, in the nineteenth century, American Transcendentalist philosopher Henry David Thoreau, noting that men live with “too passive a regard for the moral laws,”[xxii] cited directly to Antigone as a stirring example of “civil disobedience.” Still later, in these United States, the derivative legal and ethical conclusions of Antigone were learned and embraced by Martin Luther King.
The authority of Natural Law has a well-defined history in American society and politics. Ipso facto, it is not “merely” a pompous invention of interested philosophers and university professors. Or understood in more lay-person parlance, Natural Law already “has legs.”
But back to the philosophers. Building upon Plato’s theory of Ideas,[xxiii] which sought to elevate “nature” from the distressingly transient sphere of contingent facts to the “higher” realm of immutable archetypes or Forms,[xxiv] Aristotle advanced in Ethics the derivative concept of “natural justice.”[xxv] Quoting the Antigone, he argued (in a juridical posture of perpetual significance) “an unjust law is not a law.”[xxvi] This irreducible position stands in markedly stark contrast to the more instrumental opinion of the Sophists – i.e., that justice is never more than an expression of supremacy, that it is only what Thrasymachus cynically calls, in Plato’s Republic, “the interest of the stronger.”[xxvii]
Were he somehow made aware of such scholarly origins and underpinnings, US President Donald Trump would assuredly judge himself to be among the contemporary “Sophists.” This clarifying acknowledgment, to be sure, would be uttered openly by Mr. Trump, and perhaps even with an unmitigated pride.
Still more precisely apropos of President Donald Trump’s jurisprudentialy disjointed presidency, this pernicious brand of Realpolitik has now become the openly acknowledged philosophic foundation of U.S. foreign policy. Left unmodified by timeless and universal principles of a Higher Law, the deleterious consequences for America and for the wider world are not difficult to predict or decipher.[xxviii]
These effects include very tangible US declensions into catastrophic war, potentially even a nuclear war. Notable, in this regard, is the ongoing expansion of what might best be termed “Cold War II” with Russia; simultaneously, the undiminished nuclearization of North Korea and the ongoing recombination of ISIS Jihadist terrorists under the banner of al Qaeda should come to mind. Along all of these cited dimensions of decline, the “acquitted” American president is plainly complicit.
Again and again, history can be instructive. The Stoics, whose legal philosophies arose on the threshold of the Greek and Roman worlds, regarded Nature itself as humankind’s supreme legislator.[xxix] Applying Platonic and Aristotelian thought to a then-hopefully emerging cosmopolis, they defined this nascent order as one wherein humankind, by means of its seemingly well-established capacity to reason, can commune directly with the gods.[xxx] As this definition required further expansion of Plato’s and Aristotle’s developing notions of universalism, the Stoics consciously articulated a further division between lex aeterna, ius natural and ius humanum.[xxxi]
Lex aeterna is the law of reason of the cosmos, the logos which rules the universe. As an emanation of cosmic reason, human reason, it is assumed, rules the lives of men. It follows that natural law partakes of eternal law, though it has a more limited range of application. Unlike the more elitist conception of Plato (and, to a certain extent, even Aristotle), the Stoic idea of an innate “right reason” presumed no meaningful divisions between peoples.[xxxii]
Instead, in linking all persons with the cosmic order, it established the essential foundations of an authentic and immutable universality.
Cicero, in De Republica, had defined the state as a “coming together of a considerable number of men who are united by a common agreement about law and rights and by the desire to participate in mutual advantages.”[xxxiii] This definition shed a useful light on the problems surrounding positivist jurisprudence, a legal philosophy that values any state’s edicts as intrinsically just and therefore obligatory.[xxxiv] In a suitably famous passage of De Republica, one well known to Jefferson and other Founders, Cicero sets forth the still classic articulation of Natural Law:
True law is right reason, harmonious with nature, diffused among all, constant, eternal; a law which calls to duty by its commands and restrains from evil by its prohibitions….It is a sacred obligation not to attempt to legislate in contradiction to this law; nor may it be derogated from nor abrogated. Indeed, by neither the Senate nor the people can we be released from this law; nor does it require any but oneself to be its expositor or interpreter. Nor is it one law at Rome and another at Athens; one now and another at a late time; but one eternal and unchangeable law binding all nations through all time….[xxxv]
It goes without saying that US President Donald Trump has no acquaintance with any such still-binding or “peremptory” ideas.
But what is to be done when positive law (which now includes US Constitutional and statutory law) is at variance with “true law”? The Romans had a remedy in all such challenging matters. They simply incorporated into their various statutes a contingency clause that man-made law could never abrogate those obligations that are inherently right or presumptively sacred.[xxxvi] On several occasions, Cicero and others meaningfully invoked this clause, or jus, against one particular statute or another.[xxxvii]
In this way, the written law of the moment, never more than an artifact of the extant civic community, remained correctly subject to “right reason.”
Later, St. Augustine reaffirmed that temporal law must always conform to the unchangeable eternal law,[xxxviii] which he had earlier defined as “the reason or will of God (ratio divina vel voluntas Dei).”[xxxix] Aquinas continued this tradition of denying the status of law to prescriptions that are inherently unjust (lex iniusta non est lex).[xl] “Human law,” he wrote in the Summae,[xli] “has the quality of law only insofar as it proceeds according to right reason; and in this respect it is clear that it derives from the eternal law. Insofar as it deviates from reason it is called an unjust law, and has the quality not of law, but of violence.”[xlii]
The concept of a Higher Law, later to figure so importantly in the legal development of the United States of America, was widely integrated into medieval jurisprudential thought.[xliii] In John of Salisbury’s Policraticus, “There are certain precepts of the law which have perpetual necessity, having the force of law among all nations and which absolutely cannot be broken.”[xliv] Recognizing the idea that all political authority must be intrinsically limited, John noted that the prince “may not lawfully have any will of his own apart from that which the law or equity enjoins, or the calculation of the common interest requires.”[xlv]
“….or the calculation of the common interest requires.” Viewed against the backdrop of the current US president – now, correctly analogous to the medieval “prince” discussed by John of Salisbury – such “perpetual law” must of necessity prohibit any presidential placement of personal interest over the discernibly “common interest” of the United States. Natural Law, inter alia, still exists to frustrate political injustice, a vital function that failed to become materially relevant to Trump’s recent impeachment trial in the Senate.
In the seventeenth and eighteenth centuries, Natural Law doctrine was reaffirmed and secularized by Grotius,[xlvi] the “father” of all modern international law. Reviving the Ciceronian idea of Natural Law and its underlying optimism about human nature, Grotius is credited with liberating this idea from any once-remaining dependence on ecclesiastical or Papal interpretation.[xlvii] Building upon the prior speculations of the Dominican Francisco de Vitoria, who had proclaimed a natural community of humankind and the universal validity of human rights,[xlviii] Grotius fashioned a conceptual “bridge” from the Christian Commonwealth of the Middle Ages to a brand new interstate society.[xlix]
In this connection, he strengthened the idea of a universally valid Natural Law, one transcending in obligation all human law, including the cumulative positive law of any single sovereign state.[l] This is an idea, of course, that lies at the conceptual heart of US law, but it also entirely alien to the understanding or vision of current US President Trump.
Unlike Machiavelli and Hobbes,[li] Grotius did not consciously reduce law to any presumed will of a prince or a separate state.[lii] Rather, while recognizing such will as a properly constitutive element within the much wider international legal order, he also understood that the binding quality of human edicts must be derived from a more overriding totality of “natural” imperatives.[liii] Accordingly, he proceeded to reject raison d’etat as a “just cause” for war,[liv] a purposeful rejection that may sometime cease to resonate in US President Donald Trump’s personal ideas of governance.
This brings us directly to the conveyance of Natural Law ideas into American political theory, a transmittal that was preeminently the work of Locke’s Second Treatise on Civil Government (1690).[lv] The specified American “duty” to revolt whenever governments commit “a long train of abuses and usurpations”[lvi] flows largely from Locke’s seminal notion that civil authority can never extend beyond the securing of humankind’s natural rights.[lvii] Regarding the recent US presidential impeachment and trial, the motto that Jefferson chose for his own seal was: “Rebellion to Tyrants Is Obedience to God.”[lviii]
As for the right to pursue happiness, which Jefferson drew largely from Burlamaqui’s incorporation into natural law,[lix] it had nothing to do with today’s shallow presidential celebrations of raw commerce and exaggerated materialism. Not at all.
Nor could this right have had any bearing any US presidential impeachment proceedings. Though happiness was viewed by Jefferson (in plausible deference to Pufendorf and Locke) as a welcome condition to be achieved as the direct result of humankind’s overriding commitment to reason,[lx] never specified were any corresponding or corollary presidential obligations.
Above all, the Declaration of Independence implemented a fundamental social contract that sets limits on the power of any government.[lxi] Its central purpose, therefore, was to better articulate a set of universally valid constraints upon all secular political authority. Moreover, as justice, which is necessarily based on natural law, binds all human society, the rights described by the Declaration of Independence can never be reserved only to Americans. Derivatively, when current US foreign policies violate elements of international human rights law, including the authoritative law of war or law of armed conflict, there are simultaneously created various pertinent issues of US “command responsibility.”[lxii]
By ready and verifiable deduction, natural rights must extend to all human societies, and can never be rendered subject to abrogation by positive law. Today, this general applicability of an immutable imperative to “do justice” is ignored by an American president who remains openly disinterested in human rights, especially on matters regarding immigration to the United States and the granting of refugee or asylum status. Notably, such matters of international law are ipso facto binding upon the United States, both by virtue of the ubiquitous and universal natural law, but also in consequence of the US Constitution (especially Art. VI, the “Supremacy Clause”) and various leading US Supreme Court decisions (especially the Pacquete Habana, 1900).
The compelling theory of a Higher Law, which should have had a designated place in the Senate trial of President Trump, is based on clarity, self-evidence and coherence. Its express legal validity can never be shaken by any presumed presidential imperatives of geopolitics or “America First,.” As noted by the Swiss scholar Emmerich de Vattel in the 1758 edition of The Law of Nations (a work in which several American fathers of independence discovered important and usable maxims of political liberty): “No agreement can bind, or even authorize, a man to violate the natural law.”[lxiii]
Prudently, Vattel had cautioned that only a strict obedience to higher legal obligations can produce a virtuous and thereby safe and prosperous state: “One would have to be very ignorant of political affairs not to perceive how much more capable a virtuous Nation is of forming a happy, peaceful, flourishing and secure state, respected by its neighbors and formidable to its enemies.”[lxiv] Earlier, going forward with impeachment proceedings, Vattel’s wisdom could have had a proper and utilitarian place. At a minimum, it could have stood as an unchallengeable corrective to the manifestly unjust imperatives of Trump’s” America First.”
In the end, as the recent Trump impeachment trial ought to have revealed, Higher Law expectations of the American political tradition can never be self-enforcing. Instead, defied again and again by transient political elites, these expectations can only be sustained where individual citizens would first prepare to act (as does Antigone before Creon[lxv] ) according to conscience. “Why has every man a conscience,”[lxvi] asks Thoreau in his foundational American essay on Civil Disobedience.
I think that we should be men first, and subjects afterwards. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience.[lxvii]
Where are such “conscientious men” (and of course women) to be found? Certainly not, says Thoreau insightfully, among the “commonly esteemed good citizens.”[lxviii] These mass men and women serve the state “not as men mainly, but as machines, with their bodies.”[lxix]
Placing themselves “on a level with wood and earth and stones,”[lxx] these creations of the “mass” (the Danish philosopher Soren Kierkegaard would have preferred the term “crowd”) are incapable of making essential moral or legal distinctions. This incapacity is easily enough recognized today, where so many United States Senators remained unwilling to acknowledge the brutally stark differences between prima facie presidential wrongdoing and legally correct presidential behavior.
Could the United States still create the conditions for a conscientious “corporation” though the enhanced education of an informed citizenry? From Rousseau to the present, this has been the preferred path of virtually all democratic theory. Rousseau believed that law and liberty could best exist in a city-state of properly educated voters like Geneva:
He stipulates in Book III of the Social Contract:
First, a very small state where the people can be readily got together and where each citizen can with ease know all the rest; secondly, great simplicity of manners, to prevent business from multiplying and raising thorny problems; next, a large measure of equality in rank and fortune, without which equality of rights and authority cannot long subsist; lastly, little or no luxury – for luxury either comes of riches or makes them necessary.
But the contemporary United States is not at all like Geneva; Rousseau’s cherished idea that a majority (even under very specified conditions) can be trusted with what is best for “The People” is too-often mistaken. Now, the dangers of the “general will” have been made manifest not only in the exploits of Robespierre and Napoleon, but also in the dissembling presidency of Donald Trump.
There is more. Rousseau’s deification of The People actually points toward the very opposite of our own Higher Law tradition. The Genevan made “The People” sovereign; for us, ultimately, sovereignty must come to reside in The Citizen. Earlier, as Thoreau had understood, apathy, complacency, passivity and moral cowardice are the inevitable qualities found in the “mass” of men and women. True hope, therefore, can lie only in those residually still-thoughtful individuals whose primary allegiance is directed toward properly overriding and universal laws; that is, not in the presumptive “good citizen,” but rather in the indispensable “wise minority.”
It is time to finally inquire: What is the real task of this body of enlightened persons, one which could in fact represent a true and distinct majority in formation? Thoreau speaks truthfully of civil disobedience, one still possible act of “counter-friction.” Now, confronted with an American president who could bring unparalleled harms to the United States, suddenly or in unanticipated increments – as we have seen, such harms could soon include even the onset of a catastrophic nuclear war[lxxi] – Thoreau would urge, as he once did about still-earlier policy deformations (see Civil Disobedience),: “Let your life be a counter-friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.”
To this point, most visibly at partisan political levels, Thoreau’s earlier wisdom has fallen on variously deaf Congressional ears.
This essay has explored certain now-lost jurisprudential remedies to the increasingly injurious Trump Presidency, most obviously “ordinary” impeachment options rooted in the US Constitution. For future reference, any Members of Congress directly involved with drafting and refining Articles of Impeachment could also avail themselves of related Higher Law arguments. This potentially augmented path is suggested here because: (1) the Constitution of the United States is indisputably and perpetually constructed upon core principles of Natural Law; and (2) these antecedent and overriding legal principles are ultimately binding upon all citizens and all government officials.
To fashion such prospectively important Articles, careful attention ought to be paid not only to applicable statutory and Constitutional expectations, but also to the everlasting Higher Law traditions of the United States. While less explicit and thereby much harder to identify and operationalize, these core traditions and legal norms are in no way inferior to what had previously been codified. Accordingly, they should never be minimized or once again disregarded.
Though utterly ignored in the recently-completed Trump Senate trial, certain basic and immutable elements of the Western Higher Law tradition should figure importantly in efforts to protect the United States from a similarly catastrophic American presidency in the future. Such jurisprudence-based efforts at citizen protection would be not only justifiable, but indispensable. As Roman statesman Cicero already understood more than 2000 years ago, “The safety of the people shall be the highest law.”
It follows that the Natural Law/Higher Law background of the American Constitution could sometime still figure usefully and importantly in rescuing the United States from another lawless American president. Technically, of course, the recent Senate acquittal of Donald Trump must be duly respected by Americans as law-enforcing. But the “safety of the people” must always take acknowledged precedence over narrowly technical judgments by the United States Senate.
[i] As the U.S. Constitution does not spell-out the precise content of any such crimes, it would have been reasonable to maintain that presidential violations of Natural Law were at least equally representative of “High Crimes and Misdemeanors” as anything locatable in tangible statute. Also worth noting is that at the time of the Constitution’s ratification, determinations of authentic criminality had much less to do with codified norms than with the common law or judicial precedent. In other words, when Professor Alan Dershowitz argued before the US Senate that an impeachable offense by Donald Trump must be linked to a “codified” crime, he fundamentally misrepresented the core legal origins of the United States.
[ii] Under international law, the idea of a Higher Law – drawn originally from the ancient Greeks and ancient Hebrews – is contained (inter alia) within the principle of jus cogens or “peremptory” norms.
[iii] Turning and turning in the widening gyre;
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
[iv] This presumes, of course, a far greater attention to serious education in the United States. In this connection, contrast the “classical” American opinion of Thomas Jefferson with that of Donald Trump. Said Jefferson: “To penetrate and dissipate the clouds of darkness, the general mind must be strengthened by education.” Said Trump: “I love the poorly educated.”
[v] According to Article 53 of the Vienna Convention on the Law of Treaties: “…a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” See: Vienna Convention on the Law of Treaties, Done at Vienna, May 23, 1969. Entered into force, Jan. 27, 1980. U.N. Doc. A/CONF. 39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M. 679 (1969).
[vi] See Edward S. Corwin, THE “HIGHER LAW” BACKGROUND OF AMERICAN CONSTITUTIONAL LAW (1955); Alexander P. D’Entreves, NATURAL LAW: AN INTRODUCTION TO LEGAL PHILOSOPHY (1951).
[vii] See: U.S. Constitution, Art. IX. According to Clinton Rossiter, there exists a “deep-seated conviction” among Americans “that the Constitution is an expression of the Higher Law, that it is, in fact, imperfect man’s most perfect rendering” of eternal law. See Rossiter, preface to Corwin, supra, at vi.
[viii] Blackstone’s Commentaries, of course, provided certain basic foundations of America’s current legal system. It is unlikely, of course, that even a tiny handful of US representatives or senators were even aware of this juridical primacy.
[ix] Blackstone’s COMMENTARIES expressly recognize that all law “results from those principles of natural justice, in which all the learned of every nation agree….” See William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, adapted by Robert Malcolm Kerr (Boston; Beacon Press, 1962), Book IV, “Of Public Wrongs,” p. 62 (Chapter V., “Of Offenses Against the Law of Nations.”)
[x] See John Locke, TWO TREATISES OF GOVERNMENT 123 (T.I. Cook, ed., 1947).
[xi] See THE DECLARATION OF INDEPENDENCE
[xii] See Julius Stone, THE PROVINCE AND FUNCTION OF LAW (Cambridge MA: Harvard University Press, 1950), Chapter VIII, “Natural Law.”
[xiii] Here, in the Deist view, Nature had “replaced” God as the source for lawful behavior.
[xiv] Newton says famously in his Principia: “This most beautiful system of the sun, planets, and comets could only proceed from the counsel and dominion of an intelligent and powerful Being.” Cited by Abraham Kaplan, IN PURSUIT OF WISDOM: THE SCOPE OF PHILOSOPHY (Beverly Hills CA: Glencoe Press, 1977), p. 550.
[xv] See Stone, supra, Ch. VIII.
[xvi] See Locke, supra, 123.
[xvii] See The Bill of Rights, as detailed in the following discussion.
[xviii] See U.S. Constitution, Ninth Amendment.
[xix] The most fundamental principle of ancient Hebrew law, of course, is that the revealed will of God is the only proper source of Jewish justice. In the Talmudic position, “Whatever a competent scholar will yet derive from the Law, that was already given to Moses on Mount Sinai.” (See Jerusalem Megillah IV, 74d.)
[xx] See Sec. 81, Fragment No. DK 22B114 of THE PRESOCRATICS 75 (Philip Wheelwright ed., Bobbs-Merrill 1960). The authoritative text for the fragments of Heraclitus is Hermann Diels & Walther Kranz, DIE FRAGMENTE DER VORSOKRATIKER (6th ed., Weidmann 1966).
[xxi] A century before Demosthenes, Antigone’s appeal against Creon’s order to the “unwritten and steadfast customs of the Gods” had evidenced the inferiority of human rule-making to a Higher Law. Here, in the drama by Sophocles, Creon represents the Greek tyrant who disturbs the ancient harmony of the city state. Aristotle, in his RHETORIC, quotes from Sophocles’ ANTIGONE when he argues that “an unjust law is not a law.” See RHETORIC 1, 15, 1375, a 27 et seq.
[xxii] See Henry David Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE, in WALDEN, OR LIFE IN THE WOODS AND ON THE DUTY OF CIVIL DISOBEDIENCE (Signet 1960).
[xxiii] Plato’s theory, offered in the fourth century B.C.E, seeks to explain politics as an unstable realm of sense and matter, an arena formed and sustained by half-truths and distorted perceptions. In contrast to the stable realm of immaterial Forms, from which all genuine knowledge must be derived, the political realm is dominated by the uncertainties of the sensible world. At the basis of this political theory is a physical-mental analogy that establishes a correlation between the head, the heart and the abdomen, and the virtues of intelligence, courage and moderation.
[xxv] See Corwin, supra, at 7.
[xxvii] “Right is the interest of the stronger,” says Thrasymachus in Bk. I, Sec. 338 of Plato, THE REPUBLIC (B. Jowett tr., 1875). “Justice is a contract neither to do nor to suffer wrong,” says Glaucon, id., Bk. II, Sec. 359. See also, Philus in Bk III, Sec. 5 of Cicero, DE REPUBLICA.
[xxviii] In this connection, however, noted Sigmund Freud: “Wars will only be prevented with certainty if mankind unites in setting up a central authority to which the right of giving judgment upon all shall be handed over. There are clearly two separate requirements involved in this: the creation of a supreme agency and its endowment with the necessary power. One without the other would be useless.” (See: Sigmund Freud, Collected Papers, cited in Louis René Beres, The Management of World Power: A Theoretical Analysis, University of Denver, Monograph Series in World Affairs, Vol. 10 (1973-73), p, 27.)
[xxix] See Corwin, supra, at 9: “The Stoics…thought of Nature or the Universe as a living organism, of which the material world was the body, and of which the Deity or the Universal Reason was the pervading, animating and governing soul; and natural law was the rule of conduct laid down by this Universal Reason for the direction of mankind.” Salmond, JURISPRUDENCE 27 (7th ed., 1924), cited in Corwin, supra, at 9.
[xxxi] These terms are defined and discussed below.
[xxxii] See Corwin, supra, at 9.
[xxxiii] Spoken by Scipio in Bk. I of DE REPUBLICA; cited in Alexander P. D’Entreves, THE NOTION OF THE STATE 24 (1967).
[xxxiv] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, 224-230. Stone calls positive law “…the law actually enforced by organized society in a particular place at a particular time.” (p. 225) Understood in terms of natural law, positive law is merely a necessary evil, tolerable and valid only to the extent that it coincides with natural law. In this theory, says Julius Stone, “Not only does natural law provide the criterion for judgment whether positive law is just. It goes further and provides the criterion for deciding whether positive law is valid law at all.” (Id., at 226)
[xxxv] See Cicero, I DE LEGIBUS, cited in Corwin, supra, at 10; D’Entreves, supra., at 20 – 21. Similarly, in his DE OFFICIIS, Cicero wrote: “There is in fact a true law namely right reason, which is in accordance with nature, applies to all men and is unchangeable and eternal….It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law eternal and unchangeable binding at all times and upon all peoples.” (cited by Stone, supra, at 216.) See also DE LEGIBUS, Bk. i, c, vii; cited by Stone, supra, at 216.
[xxxvi] See Corwin, supra, at 12.
[xxxvii] Id, at 13.
[xxxviii] See D’Entreves, supra, 36 – 37. In early Christendom, Augustine offered a system of thought that identified the locus of all global problems in the human potentiality for evil. Combining a philosophy of Neo-Platonism with a view of the universe as a struggle between good and evil, he attributed the trials of humankind to the taint of original sin. This view, transformed into a secular political philosophy, is now reflected by exponents of the school of realism or realpolitik. Augustine, writing at the beginning of the fifth century C.E., sets out, in the CITY OF GOD, to describe human history as a contest of two societies, the intrinsically debased City of Man and the eternally peaceful City of God. In this contest, the state, the product of humankind’s most base tendencies, is devoid of justice and destructive of salvation. A mirror image of human wickedness, the state is little more than a “large gang of robbers.” In an oft-quoted passage, Augustine recalls the answer offered by a pirate who had been captured by Alexander the Great. When asked by Alexander what right he had to infest the seas, the pirate replied: “The same right that you have to infest the world. But because I do it in a small boat I am called a robber, while because you do it with a large fleet you are called an emperor.”
[xxxix] See Julius Stone, HUMAN LAW AND HUMAN JUSTICE (Stanford CA: Stanford University Press, 1965), p. 44. For Augustine, this reason or will of God “commands us to preserve the natural order and prohibits us to disturb it.” (See Contra Faustum, XXII, 27; cited by Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 44.
[xl] Thomas Aquinas recalls Augustine as follows: “St. Augustine says: `There is no law unless it be just.’ So the validity of law depends upon its justice. But in human affairs a thing is said to be just when it accords aright with the rule of reason: and as we have already seen, the first rule of reason is the Natural Law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the Natural law. And if a human law is at variance in any particular with the Natural law, it is no longer legal, but rather a corruption of law.” See SUMMA THEOLOGICA, 1a 2ae, 95, 2; cited by D’Entreves, supra, pp. 42 – 43.
[xli] See D’Entreves, supra, at 42 – 43.
[xlii] The importance of reason to legal judgment was prefigured in ancient Israel, which accommodated reason within its system of revealed law. Jewish theory of law, insofar as it displays the marks of natural law, offers a transcending order revealed by the divine word as interpreted by human reason. In the striking words of Ecclesiasticus 32.23, 37.16, 13-14: “Let reason go before every enterprise and counsel before any action…And let the counsel of thine own heart stand…For a man’s mind is sometimes wont to tell him more than seven watchmen that sit above in an high tower….”
[xliii] See Stone, THE PROVINCE AND FUNCTION OF LAW, supra, Chapter VIII.
[xliv] See Corwin, supra, at 17 – 18.
[xlv] Id., at 19.
[xlvi] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 64 – 68.
[xlviii] See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.
[xlix] Id, pp. 65 – 68.
[li] The sixteenth-century Florentine philosopher, Niccolo Machiavelli, joined Aristotle’s foundations for a scientific study of politics with assumptions of realpolitik to reach certain conclusions about politics. His most important conclusion underscores the dilemma of practicing goodness in an essentially evil world: “A man who wishes to make a profession of goodness in everything must necessarily come to grief among so many who are not good.” (See THE PRINCE, Chapter XV). Recognizing this tragic state of affairs, Machiavelli proceeds to advance the arguments for expediency that have become synonymous with his name. With the placing of the idea of force at the center of his political theory, the author of THE PRINCE stands in sharp contrast to the Platonic and early Christian concepts of the “good.” Rejecting both Plato’s argument that there is a knowable objective “good” that leads to virtue, and Augustine’s otherworldly idea of absolute goodness, Machiavelli constructs his political theory on the assumption that “all men are potential criminals, and always ready to realize their evil intentions whenever they are free to do so.” In his instructions to the statesman on how to rule in a world dominated by force, he advises “to learn how not to be good.” The seventeenth-century materialist and social philosopher, Thomas Hobbes, elaborated a complex system of thought in which man was reduced to a state of nature and then reconstructed. Seeking a science of human nature that would have the rigor of physics, Hobbes looked to introspection as the source of genuine understanding: “Whosoever looketh into himself and considereth what he doth when he does think, opine, reason, hope, fear, etc., and upon what grounds, he shall thereby read and know, what are the thoughts and passions of all other men, upon the like occasions.” (See Introduction to LEVIATHAN). The results of such an analysis of one’s own thought processes led Hobbes to his celebrated theory of the social contract: the natural egoism of man produces a “war of all against all” in the absence of civil government and must be tempered by absolute monarchy. Moreover, the condition of nature, which is also called a condition of war marked by “continual fear, and danger of violent death,” has always been the characteristic condition of international relations and international law: “But though there had never been any time, wherein particular men were in a condition of war one against another; yet, in all times, kings, and persons of sovereign-authority, because of their independency, are in continual jealousies, and in the state and posture of gladiators; having their weapons pointing, and their eyes fixed on one another; that is, their forts, garrisons, and guns upon the frontiers of their kingdoms, and continual spies upon their neighbors, which is a posture of war.” (See LEVIATHAN, Chapter XIII).
[lii] This is because the principal Grotian effort was to “translate” natural law from pure philosophical speculation into a pragmatic legal ordering. See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 65.
[liv] The Swiss scholar, Emmerich de Vattel, notes – in his 1758 classic THE LAW OF NATIONS: “No agreement can bind, or even authorize a man to violate the natural law.” See Albert de LaPradelle, Introduction to Emmerich de Vattel, LE DROIT DES GENS (THE LAW OF NATIONS)(Charles G. Fenwick, tr., 1916).
[lv] See Corwin, supra, at 61.
[lviii] See Thomas Jefferson, IV WORKS 362 (New York, P.L. Ford, ed., 1892-99).
[lix] J.J. Burlamaqui, author of PRINCIPES DU DROIT DE LA NATURE ET DES GENS (1774) was a Swiss scholar who held a Chair at the University of Geneva. His work has been described by J. Stone and others as “rational utilitarianism.” See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, p. 71.
[lx] See Corwin, supra, p. 81.
[lxii] Criminal responsibility of leaders under international law is not limited to direct personal action or limited by official position. On this peremptory principle of “command responsibility,” or respondeat superior, see: In re Yamashita, 327 U.S. 1 (1945); The High Command Case (The Trial of Wilhelm von Leeb), 12 Law Reports of Trials Of War Criminals 1 (United Nations War Crimes Commission Comp., 1949); see Parks, Command Responsibility For War Crimes, 62 MIL.L. REV. 1 (1973); O’Brien, The Law Of War, Command Responsibility And Vietnam, 60 GEO. L.J. 605 (1972); U.S. Dept. Of The Army, Army Subject Schedule No. 27 – 1 (Geneva Conventions of 1949 and Hague Convention No. IV of 1907), 10 (1970). The direct individual responsibility of leaders is also unambiguous in view of the London Agreement, which denies defendants the protection of the act of state defense. See AGREEMENT FOR THE PROSECUTION AND PUNISHMENT OF THE MAJOR WAR CRIMINALS OF THE EUROPEAN AXIS, Aug. 8, 1945, 59 Stat. 1544, E.A.S. No. 472, 82 U.N.T.S. 279, art. 7.
[lxiii] See Vattel, THE LAW OF NATIONS (Washington D.C.: Carnegie Institution, 1916), C.G. Fenwick tr., p. 4.
[lxv] See Sophocles, ANTIGONE, supra.
[lxvi] See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).
[lxxi] “The obligation of subjects to the sovereign,” says Thomas Hobbes in Chapter XXI of LEVIATHAN, “is understood to last as long, and no longer, than the power lasteth by which he is able to protect them.”
Trump Lost, Biden Won. Is Joe Biden’s presidency a signal towards Obama’s America?
Greek statesmen, Pericles once said, “Just because you don’t take an interest in politics doesn’t mean the politics won’t take interest in you”. The same is the case of United States politics which knowingly or unknowingly has an impact on world politics. That is why the result of the US elections are of great interest to states across the world. Although, for the United States, the goal is to maintain American primacy, to see a world in which the United States can use its predominant power to get its way, regardless of what others want. However, it is a fact that the political landscape of the United States has mostly been dominated by two parties, Republicans and Democrats, who not only differ in their ideas, policies, priorities but also in their approaches towards addressing the key issues facing the country.
Comparing the two, we see the Republicans are more conservative in their approach as compared to the liberal Democrats. Therefore, the recent election in the US (2020), with Biden (Democrat) won and trump (Republican) lost is also a signal towards a changed approach in many issue areas The focus is to see, whether the new President, Joe Biden who remained the 47th vice president during Obama’s administration for eight long years is going to follow the same lines as Barack Obama and whether he going to reverse the policies of Donald Trump?
Looking at first the climate change issues, President Joe Biden’s plans to tackle it seems more ambitious than any of the US presidential candidates so far. Biden during his presidential campaign proposed $2trillion over four years to significantly escalate the use of clean energy in transportation, electricity and building sectors. His public health and environment platform planned the establishment of a climate and environmental justice division. He further intends to make the US electricity production carbon-free by 2035 with achieving net-zero emissions by middle of the century. Apart from all these, the most noticeable is President Joe Biden’s promise to reverse Trump’s plan to exit from the Paris climate agreement that was signed back in 2016 under Obama’s administration.
As Joe Biden in response to the former President, Donald Trump’s unilateral withdrawal from the agreement on 4th-Nov 2020, tweeted “Today, the Trump Administration officially left the Paris Climate Agreement. And in exactly 77 days, a Biden Administration will rejoin it.” He further stated“Reversing the decision would be one of my first acts as president”. This is exactly what happened as Joe Biden’s first act in the Oval Office was his signing an executive order to have the United States rejoin the Paris climate agreement. Thus, while Trump has taken a strident anti-climate approach, President Joe Biden decision shows his intentions to bring back the policies of Obama towards climate change.
Considering the health sector, we again find difference in approaches of Joe Biden and Donald Trump, yet similarity between Biden and Obama. As, President Joe Biden in his presidential campaign speech in Lancaster on June 25, 2020 defended the first American healthcare law also known as the Affordable Care Act or Obamacare that was initiated by Obama’s administration. He stated, “I’m proud of the Affordable Care Act. In addition to helping people with pre-existing conditions, it delivered vital coverage for 20 million Americans who did not have health insurance”. This depicts President Joe Biden’s plans to restore Obama’s health care policies.
America is known as the land for all, a land of cultural diversity, but we have seen with Donald Trump coming to power, the immigration rules became very strict as he imposed restrictions on foreigner’s visits to the US. An example of this is Trump’s first Muslim travel ban announced on January 27, 2017, whereby five Muslim-majority countries, including Iran, Libya, Somalia, Syria, and Yemen, were banned from traveling to the United States. Trump stated, the act is needed for national security and to save the country from terrorism. However, this discriminatory act was opposed by ex-President Obama, who in 2016, stated: “America was a country founded on religious freedom. We don’t have religious tests here”.
This is what President Joe Biden also believes in, as he called Trump’s actions on immigration a pitiless assault on American values. On November 8, 2020 during the presidential campaign, he said,“My administration will look like America with Muslim Americans serving at every level,” and “on my first day in office I’ll end Trump’s unconstitutional Muslim ban.”So, President Joe Biden did what he said, as on his first day in office he signed 17 executive orders, memorandums and proclamations, including orders to rejoin the Paris Climate Accord and end the Muslim ban.
Then racism that increased in the US under former President Donald Trump is now challenged by President Joe Biden as he came up with a very different idea just like Barack Obama’s notion of “A more perfect Union”. Example of which is Kamala Harris, who became the first black Asian America woman vice-president in American history. More can be seen by Joe Biden giving credit to African Americans for helping him win the election. So, his presidency is seen as a sign of hope to end racism in the country.
Moving further, we know globalization has cut the long-distance short, it has made countries more interconnected in all aspects, especially economic. To name a champion of globalization, obviously no other than the USA comes into the mind of every single person. Under the administration of Obama, we have seen the US convening the G-20 summit, introduced macro-economic policies, signed Trans pacific partnership, and much more. However, the question is, whether the US is going to retain this all under Joe Biden’s presidency? What would be his approach towards the ongoing US-China trade war?
President Joe Biden from the very start has focused on rebuilding the domestic economy, as the slogan ‘Build Back Better’. Therefore, he clearly stated that the US will not enter any international trade deals unless the domestic concerns of labor and the environment are fully addressed. Moreover, looking at the US-China trade war, which started back in 2018 when the Trump administration imposed tariffs on Chinese goods worth more than $360bn, we don’t find much difference except the tactics. As Joe Biden too in his presidential campaign accused China of violating international trade rules, subsidizing its companies, and stealing U.S. intellectual property. He promised to continue with Trump’s heavy tariffs on Chinese imports, but while Trump did this all unilaterally, Biden would continue it together with the allies.
On issues related to national security, we again find President Joe Biden’s approach a bit different from that of Donald Trump. Considering the Joint Comprehensive Plan of Action (JCPOA) or p5+1 deal that was signed between Islamic Republic of Iran and 5 permanent members of UNSC along with Germany. It imposed several restrictions on Iran in exchange for sanction reliefs and was achieved by Obama’s administration under his “constructive engagement policy“in 2015 But Trump smashed it by calling it a historical blunder and in 2018 under his “Maximum pressure policy” pulled the USA out of the deal and reinstated sanctions. Iran too after the withdrawal of US from JCPOA and upon Iran Revolutionary Guard Corp (IRGC) commander Qasim Sulemani killing by the US airstrike announced that it no longer adheres to the 2015 Nuclear Deal.
Now, the hope is President Joe Biden, as he stated in his presidential campaign that the “maximum pressure” policy has failed, emphasizing that it led to a significant escalation in tensions, and that Iran is now closer to a nuclear weapon than it was when Trump came to office. Therefore, he pledged to rejoin the nuclear accord if Iran returns to strict compliance. Here again it shows President Joe Biden’s intention to follow Obama’s approach of constructive engagement towards Iran.
When it comes to Afghanistan, Trump decided to end the endless war in Afghanistan by having a peace agreement with the Afghan Taliban, according to which the US will withdraw all its troops from Afghanistan. However, Joe Biden has not taken any clear decision on it yet. But he is under pressure as the Taliban wants the new president to follow the same peace accord achieved by the Trump administration. Yet, the Afghan president, Ashraf Ghani has requested President Joe Biden to rethink the Afghan peace deal. Therefore, it is too early to say what Biden would do.
To sum up, the 78 years old Joe Biden who has smashed the election records by securing more votes than any presidential candidate in the history of United States elections, he has not only raised high expectations, but there are numerous challenges on his way as well. This is because his policies would now be a center of focus for many. In most of the issue areas, we see President Joe Biden reversing the policies of Donald Trump and following the path of Obama’s Administration. Something which he promised during his presidential campaign as he said to take the country on a very different path from what it has been in the past four years under former President Donald Trump’s administration. However, it’s just the start of a new journey for America and the future decisions by President Joe Biden will uncover a lot more
How Uncle Sam views the world by 2040
How the US is seeing the future world is revealed in a recent report, Global Trends 2040: A More Contested World, published by the National Intelligence Council of the US. This report of political, social and economic estimates is prepared through an integrated process for every incoming President of the USA. For Biden, the report was published in March this year. The world, its politics, economics and societies, is going to change under the forces stemmed in changes in demographic modalities, environmental fluctuations, economic preferences and technological transformations. These together are going to impact on societies, states and international systems which would end in sketching five different futures of the world. Uncle Sam seems to be shaking the world, and this time even more intensely.
Starting off how the forces will interact and intersect, it all begins with the changes in demographics. The developed economies are aging bringing a global slow economic growth whereas the contracting working age will weigh on the economies of these developed countries as Japan and South Korea will reach the median age of 53 and Europe the median age of 47 by 2040. On the other side, in developing countries the converse will be happening as Sub Saharan Africa will reach median age of less than 15 years whereas Pakistan, Egypt and Afghanistan will reach the median age of 30 years. This seems opportunity but these economies will be challenged to meet the demands of the growing working age populace in their economies with the slow global economic growth remaining constant dragging the societies into social volatilities while testing the performances of states too.
The forces of environment will leave no country unaffected especially the developing countries that lack in adaptations skills and technologies. The occurrence of heat waves, melting of Arctic, land degradation, water misuses, food insecurity, loss of biodiversity, rising sea levels and pollution will erode the ‘human security’ while affecting states and societies, politics and economics coequally. For curtailing environmental threats, countries may apply geoengineering by interacting with the natural system of earth to counteract threats of climate change like releasing the sun’s energy back into space through Solar Radiations Management or Stratospheric Aerosol Injection spraying to cause global dimming. The developed countries especially US and China will see suspicions on sincerely working on environmental threats as this would require economic sacrifices.
In the sphere of Economics, the national debt management will push countries to avoid funding on the issues of environment as they will already be pressed hard for matching the needs of the growing demands of their elderly and younger populations alike. Covid 19 has already left indelible imprints on the economies of the world especially the developing countries two fifths of which, according to 2019 IMF assessment, were at debt distress. Automation and rapidly growing AI will reduce 9 percent global jobs and transform one third by 2040 while at the same time creating massive new technology and automation stemmed jobs which will test the states adaptability to manoeuvring technology. This will have disproportionate effect across the countries and regions. The element of Superstar firms, the new multinationals, will critically affect world economies and make definitive inroads in the affairs of politics.
The technological forces will surpass all other forces in intensity especially with the significant rise of AI and Biotechnology. The US-China rivalry in this sphere will be rampant. AI will disrupt global current workforce while also creating new dimensions of labor compelling the countries to remodel their working force structures. The application of AI in warfare will be on the rise and will be adding a new element to the geopolitical dynamics. AI is well positioned to fly and reach space which will turn the space diplomacy in new form and bring the two global rivals face to face. AI will siphon out the human element of emotions in making decisions having social effects.
As these forces interact, world will see five possible scenarios in which the first three are the prominent.
In the first scenario, it will the US and allies led democracy which will manipulate the world. Being democratic, there will be more space for innovation and the rise of technology with robust public private partnerships will prosperously affect economic growth of the countries. This will enable the states to be responsive to their people’s needs while the same time making adaptations unlike in the repressive regimes of Russian and China whose policies will let them on steady decline.
In the second scenario, it will be China which will be mastering the world arena but not exactly acting like leading it due to its inherent repressive dynamics. This will happen on account of failure of international organizations with least interest paid to them by the major powers. The factors of high national debt, the costs of caring for aging populations, and hazardous environmental occurrences will havoc states’ budgets and keep them away from spending on education, infrastructure, and scientific research. In these circumstances due to the integrally centralist and controlled Chinese centralism will help China gain global attention through its global infrastructure packages and other initiatives. Many countries will thus tilt to the Chinese sidelines.
In the third effectual scenario, it will be a contested coexistence of US and China which will emerge. This will be based on shared economic and growth preferences and agreements.
Much of what is stated in the report must be happening in the world ahead but much of what is left unstated is more critical. Summed up, there will be more instability, pandemics, economic recessions, state conflicts and disorders in the five different worlds that lay ahead.
Understanding Ronald Regan’s approach to the Cold War
President Ronald Reagan’s ascendency in the political hierarchy of the United States, ending in him becoming the President is often regarded as a triumphant victory by American conservatives. His conception of the world order, domestic and international relations show a reflection of a conservative understanding of issues. His legacy as president remains as having effectively brought down the Soviet Union and the threat of Communism. His policies towards the Soviet Union have a transformative nature, as his understanding and approach to US-Soviet relations changed radically after his first term. Though being a staunch Anti-communist and regarding the Soviet Union as an “evil empire”, he sought to ensure that America and its idea of a “Free World” prevailed and later on, that the two most significant military powers would reach common ground in order to make peace more sustainable.
In studying his approach to tackling the Soviet threat, it’s important to first understand the correlation between the policies adopted by previous administrations and Reagan’s own pursuit of defeating the Communist threat which at the height of the Cold War, threatened to spill into a full-scale conflict between the two regional hegemons. Previous administrations had traditionally approached the threat posed by the Soviet Union with a policy of preventing the collapse of European allies at the hands of the Soviet Union. This included stymieing the spread of Communism across the world and the consistent development of Ballistic missiles in order to deter a Soviet military advance into Europe by providing a “nuclear umbrella” to European Allies. Before the Reagan administration this policy was in large part accepted as the means through which the Soviet threat could be effectively challenged. President Reagan followed a similar policy by pursuing aggressive military buildup and focusing on development of a vast range of ballistic missile platforms which would act as a comprehensive deterrent in preventing the Soviet decision-making elite to pursue a path unacceptable to US strategists (ARBATOV 2019). Being disillusioned with the far left, his opinions and campaign slogans had strong ideological underpinnings which would later on influence his dealings with the Soviet Union.
The changes in Reagan’s policy weren’t without the influence of another very important personality, Mikhail Gorbachev. The Soviet leader’s role in Reagan’s change in policy from antagonism to rapprochement is widely claimed by academic scholars as a major contributing factor for the rethink in Reagans approach to Communist Soviet Union. Gorbachev’s revolutionary approach to International Relations was followed by America’s “reactionary response” in the shape of pursuance of arms control and softening of political rhetoric (Fischer 1997). Ronald Reagan second term in office was marked by a change in his policy of pursuing aggressive development of arms and making space-based missile defense systems having the capability of destroying incoming Soviet missiles. The Strategic Defense Initiative was seen by many in the Soviet ranks as a dangerous escalation of arms race which had the potential of transforming into military conflict. (Britannica, T.Editors of Encyclopaedia 2021). Seeing and acknowledging Gorbachev’s new approach as “revolutionary” President Reagan sought to rely on an intense sustained engagement with the Soviet leader in order to achieve what his previous approach had failed to do (Talbott 2004).
Mikhail Gorbachev’s approach to the subject of foreign policy was based on establishing relations with the west and a recalibration of ties with the United States. At the time of the Cold War a large part of the effort by the two nations was to prevent the other state from gaining a definitive edge in the area of technology, military and nuclear weapons. Apart from the ideological conflict the Cold War witnessed many states in the world becoming the conflict grounds in which the US and USSR sought to establish their control and influence. Mikhail Gorbachev’s arrival into the political spectrum and pursuing a policy of peace and prevention of creation of arms was in large part influenced by the domestic environment of his country. The Soviet Union after Brezhnev had a weakened economy due to extensive spending building and maintaining large military industries and sophisticated missile delivery and defense systems. The Russian political elite largely dominated by Russians. Gorbachev’s “restructuring” in order to improve the economic conditions of the state was also followed by a rethink at the foreign policy front. In his famous interview at Harvard University he described how the conditions of repression, arrests and suppression of critical voices against the state were silenced. This led to perestroika which gained support from the Russian masses. (The Harvard Gazette 2004).
The question as to the extent to which the effect of President Reagan and Gorbachev’s relationship caused “reversal” of US foreign policy with regards to the Soviet Union should be considered through different metrics. Firstly it’s important to study how the “Reagan doctrine” which formulated the plan of tackling soviet expansionism into countries across the globe evolved during the time of Reagan’s Presidential terms. Ronald Reagan’s doctrine was a shift from previous administrations approach to the Soviet threat. In what was previously termed as “containment” of Soviet expansionism, Reagan’s approach constituted of a “roll back” of Soviet expansionist forces across the world. From “Afghanistan to Nicaragua” Reagan’s approach was an active effort to subdue Soviet expansionist forces seeking to gain a foothold in important areas such as South Asia and Central Americas. (US Department of State archive 2001). While toning down the harsh rhetoric and signing important arms control treaties, US efforts to prevent Soviet expansionism continued despite a thaw in relations and a warm cordial relationship between the two world leaders.
Reagan’s original agenda of an aggressive military buildup and development of ballistic missiles saw a reversal during his second term. Both leaders sought to control the arms race and roll back on the creation of such weapons. The Strategic Arms Limitation Treaty (SALT-1) and other similar treaties was a ‘break away’ from Reagan’s original doctrinal approach. Gorbachev’s willingness to engage in talks was what initiated this change. What is also interesting to note is that despite belonging to radically different ideologies, both leaders shared a similar view on important matters. This is significant as both leaders expressed the desire to regulate arms control and to promote peace.
Another important element is the Soviet invasion of Afghanistan which saw an all-out Soviet effort to establish control over the region and reach the warm waters of the Arabian sea. The United States, eying an opportunity and realizing the threat of a possible soviet hold of South Asia, actively supported the Afghan Mujahedeen. Through Pakistan, the US pivotal role resulted in the Soviet forces failing to defeat the guerrilla forces despite huge numbers of troops and highly sophisticated weapon systems. This costly conflict was to prove detrimental to Soviet morale and the economy. After having effectively taken over, Gorbachev became heavily involved in restoring the economy and control over the production of arms between the United States and the Soviet Union. Gorbachev sought to move away from previous Soviet leaders doctrines and open diplomatic channels which would result in the final culmination of the Cold War.
President Ronald Reagan’s presidency was marked with a significant contrast in approaches to the Soviet threat. Having become president, his strong ideological standpoints were the driving forces behind his policies. With the Soviet Union, Reagan’s original approach was that of confronting, condemning and a protectionist mindset. Being a vocal proponent of American values of free speech, liberty and democracy his political campaigns to his televised addresses portrayed the Soviet Union as the principals threat to the very principals that America stood for. Like previous administrations, combating soviet expansionism and attaining global hegemony were prized objectives which defined much of US policies during the first term of President Reagan. His second term however saw a ‘shift’ in part of Reagan’s understanding of greater and more pressing issues at hand which demanded attention. Having originally promoted military spending and development of sophisticated missile weapon systems, Reagan’s view changed by the coming of Mikhail Gorbachev.
Both leaders, seeking initially to control production of arms, sought other means to create an environment more conducive for peace. While motivations differed, there was consensus between the two leaders on important matters which made diplomatic summits productive and resulted in many arms treaties. Both leaders established a relationship of trust and warmth which had largely been unseen since the start of the Cold War. These meetings were then followed by confidence building measures and trips to respective capitals which allowed a further thaw in the relations. Despite continued conflict in other states, both leaders relationship saw a significant reversal in the policies of US under the Reagan administration.
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