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After Senate Trial and Presidential Acquittal: Overlooked Foundations of U.S. Constitutional Law

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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.

Always.


[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. 

    [xxiv]     Supra. 

    [xxv]     See Corwin, supra, at 7.

    [xxvi]     Id.

    [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.

    [xxx]     Id.

    [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.

    [xlvii]    Id.

    [xlviii]    See Stone, HUMAN LAW AND HUMAN JUSTICE, supra, pp. 61 – 63.

    [xlix]     Id, pp. 65 – 68.

    [l]  Id.

    [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.

    [liii]      Id.  

    [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.

    [lvi]      Id. 

    [lvii]      Id. 

    [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.

    [lxi]      Id. 

[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.

    [lxiv]     Id. 

    [lxv]      See Sophocles, ANTIGONE, supra. 

    [lxvi]     See H D Thoreau, ON THE DUTY OF CIVIL DISOBEDIENCE (New York: New American Library, 1959).

    [lxvii]    Id. 

    [lxviii]    Id. 

    [lxix]     Id. 

    [lxx]      Id. 

[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.”

LOUIS RENÉ BERES (Ph.D., Princeton, 1971) is Emeritus Professor of International Law at Purdue. His twelfth and most recent book is Surviving Amid Chaos: Israel's Nuclear Strategy (2016) (2nd ed., 2018) https://paw.princeton.edu/new-books/surviving-amid-chaos-israel%E2%80%99s-nuclear-strategy Some of his principal strategic writings have appeared in Harvard National Security Journal (Harvard Law School); International Security (Harvard University); Yale Global Online (Yale University); Oxford University Press (Oxford University); Oxford Yearbook of International Law (Oxford University Press); Parameters: Journal of the US Army War College (Pentagon); Special Warfare (Pentagon); Modern War Institute (Pentagon); The War Room (Pentagon); World Politics (Princeton); INSS (The Institute for National Security Studies)(Tel Aviv); Israel Defense (Tel Aviv); BESA Perspectives (Israel); International Journal of Intelligence and Counterintelligence; The Atlantic; The New York Times and the Bulletin of the Atomic Scientists.

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Hardened US and Iranian positions question efficacy of parties’ negotiating tactics

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The United States and Iran seem to be hardening their positions in advance of a resumption of negotiations to revive a 2015 international nuclear agreement once Iranian President-elect Ebrahim Raisi takes office in early August.

Concern among supporters of the agreement to curb Iran’s nuclear program which former US President Donald J. Trump abandoned in 2018 may be premature but do raise questions about the efficacy of the negotiating tactics of both parties.

These tactics include the Biden administration’s framing of the negotiations exclusively in terms of the concerns of the West and its Middle Eastern allies rather than also as they relate to Iranian fears, a failure by both the United States and Iran to acknowledge that lifting sanctions is a complex process that needs to be taken into account in negotiations, and an Iranian refusal to clarify on what terms the Islamic republic may be willing to discuss non-nuclear issues once the nuclear agreement has been revived.

The differences in the negotiations between the United States and Iran are likely to be accentuated if and when the talks resume, particularly concerning the mechanics of lifting sanctions.

“The challenges facing the JCPOA negotiations are a really important example of how a failed experience of sanctions relief, as we had in Iran between the Obama and Trump admins, can cast a shadow over diplomacy for years to come, making it harder to secure US interests,” said Iran analyst Esfandyar Batmanghelidj referring to the nuclear accord, the Joint Comprehensive Plan of Action, by its initials.

The Biden administration may be heeding Mr. Batmangheldij’s notion that crafting sanctions needs to take into account the fact that lifting them can be as difficult as imposing them as it considers more targeted additional punitive measures against Iran. Those measures would aim to hamper Iran’s evolving capabilities for precision strikes using drones and guided missiles by focusing on the providers of parts for those weapon systems, particularly engines and microelectronics.

To be sure, there is no discernable appetite in either Washington or Tehran to adjust negotiation tactics and amend their underlying assumptions. It would constitute a gargantuan, if not impossible challenge given the political environment in both capitals. That was reflected in recent days in Iranian and US statements.

Iranian Spiritual Leader Ayatollah Ali Khamenei suggested that agreement on the revival of the nuclear accord was stumbling over a US demand that it goes beyond the terms of the original accord by linking it to an Iranian willingness to discuss its ballistic missiles program and support for Arab proxies.

In a speech to the cabinet of outgoing President Hassan Rouhani, he asserted that the West “will try to hit us everywhere they can and if they don’t hit us in some place, it’s because they can’t… On paper and in their promises, they say they’ll remove sanctions. But they haven’t lifted them and won’t lift them. They impose conditions…to say in future Iran violated the agreement and there is no agreement” if Iran refuses to discuss regional issues or ballistic missiles.

Iranian officials insist that nothing can be discussed at this stage but a return by both countries to the nuclear accord as is. Officials, distrustful of US intentions, have hinted that an unconditional and verified return to the status quo ante may help open the door to talks on missiles and proxies provided this would involve not only Iranian actions and programs but also those of America’s allies.

Mr. Khamenei’s remarks seemed to bolster suggestions that once in office Mr. Raisi would seek to turn the table on the Biden administration by insisting on stricter verification and US implementation of its part of a revived agreement.

To achieve this, Iran is expected to demand the lifting of all rather than some sanctions imposed or extended by the Trump administration; verification of the lifting;  guarantees that the lifting of sanctions is irreversible, possibly by making any future American withdrawal from the deal contingent on approval by the United Nations Security Council; and iron-clad provisions to ensure that obstacles to Iranian trade are removed, including the country’s unfettered access to the international financial system and the country’s overseas accounts.

Mr. Khamenei’s remarks and Mr. Raisi’s anticipated harder line was echoed in warnings by US officials that the ascendancy of the new president would not get Iran a better deal. The officials cautioned further that there could be a point soon at which it would no longer be worth returning to because Iran’s nuclear program would have advanced to the point where the limitations imposed by the agreement wouldn’t produce the intended minimum one year ‘breakout time’ to produce enough enriched uranium for a bomb.

“We are committed to diplomacy, but this process cannot go on indefinitely. At some point, the gains achieved by the JCPOA (Joint Comprehensive Plan of Action) cannot be fully recovered by a return to the JCPOA if Iran continues the activities that it’s undertaken with regard to its nuclear program…The ball remains in Iran’s court, and we will see if they’re prepared to make the decisions necessary to come back into compliance,” US Secretary Antony Blinken said this week on a visit to Kuwait.

Another US official suggested that the United States and Iran could descend into a tug-of-war on who has the longer breath and who blinks first. It’s a war that so far has not produced expected results for the United States and in which Iran has paid a heavy price for standing its ground.

The official said that a breakdown in talks could “look a lot like the dual-track strategy of the past—sanctions pressure, other forms of pressure, and a persistent offer of negotiations. It will be a question of how long it takes the Iranians to come to the idea they will not wait us out.”

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Wendy Sherman’s China visit takes a terrible for the US turn

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Photo: Miller Center/ flickr

US Deputy Secretary of State, Wendy Sherman, had high hopes for the meeting in China. At first, the Chinese side did not agree to hold the meeting at all. The reaction had obvious reasons: Antony Blinken’s fiasco in Alaska left the Chinese disrespected and visibly irritated. This is not why they travelled all the way.

So then the State Department had the idea of sending Wendy Sherman instead. The US government actually needs China more than China needs the US. Sherman was in China to actually prepare the ground for Biden and a meeting between the two presidents, expecting a red carpet roll for Biden as if it’s still the 2000s — the time when it didn’t matter how the US behaved. Things did not go as expected.

Instead of red carpet talk, Sherman heard Dua Lipa’s “I got new rules”. 

That’s right — the Chinese side outlined three bottom lines warning the US to respect its system, development and sovereignty and territorial integrity. In other words, China wants to be left alone.

The bottom lines were not phrased as red lines. This was not a military conflict warning. This was China’s message that if any future dialogue was to take place, China needs to be left alone. China accused the US of creating an “imaginary enemy”. I have written about it before — the US is looking for a new Cold War but it doesn’t know how to start and the problem is that the other side actually holds all the cards

That’s why the US relies on good old militarism with an expansion into the Indo-Pacific, while aligning everyone against China but expecting the red carpet and wanting all else in the financial and economic domains to stay the same. The problem is that the US can no longer sell this because there are no buyers. Europeans also don’t want to play along.

The headlines on the meeting in the US press are less flattering than usual. If the US is serious about China policy it has to be prepared to listen to much more of that in the future. And perhaps to, yes, sit down and be humble.

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Why Jen Psaki is a well-masked Sean Spicer

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When Sarah Huckabee Sanders showed up on the scene as White House Press Secretary, the reaction was that of relief. Finally — someone civil, normal, friendly. Jen Psaki’s entry this year was something similar. People were ready for someone well-spoken, well-mannered, even friendly as a much welcome change from the string of liars, brutes or simply disoriented people that the Trump Administration seemed to be lining up the press and communications team with on a rolling basis. After all, if the face of the White House couldn’t keep it together for at least five minutes in public, what did that say about the overall state of the White House behind the scenes?

But Psaki’s style is not what the American media and public perceive it to be. Her style is almost undetectable to the general American public to the point that it could look friendly and honest to the untrained eye or ear. Diplomatic or international organization circles are perhaps better suited to catch what’s behind the general mannerism. Jen Psaki is a well-masked Sean Spicer, but a Sean Spicer nevertheless. I actually think she will do much better than him in Dancing With The Stars. No, in fact, she will be fabulous at Dancing With The Stars once she gets replaced as White House Press Secretary.

So let’s take a closer look. I think what remains undetected by the general American media is veiled aggression and can easily pass as friendliness. Psaki recently asked a reporter who was inquiring about the Covid statistics at the White House why the reporter needed that information because Psaki simply didn’t have that. Behind the brisk tone was another undertone: the White House can’t be questioned, we are off limits. But it is not and that’s the point. 

Earlier, right at the beginning in January, Psaki initially gave a pass to a member of her team when the Politico stunner reporter story broke out. The reporter was questioning conflict of interest matters, while the White House “stud” was convinced it was because he just didn’t chose her, cursing her and threatening her. Psaki sent him on holidays. Nothing to see here folks, move along.

Psaki has a level of aggression that’s above average, yet she comes across as one of the most measured and reasonable White House Press Secretaries of the decade. And that’s under pressure. But being able to mask that level of deflection is actually not good for the media because the media wants answers. Style shouldn’t (excuse the pun) trump answers. And being able to get away smoothly with it doesn’t actually serve the public well. Like that time she just walked away like it’s not a big deal. It’s the style of “as long as I say thank you or excuse me politely anything goes”. But it doesn’t. And the American public will need answers to some questions very soon. Psaki won’t be able to deliver that and it would be a shame to give her a pass just because of style.

I think it’s time that we start seeing Psaki as a veiled Sean Spicer. And that Dancing with the Stars show — I hope that will still run despite Covid.

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