Scottishprudence...

... is a blog on Jurisprudence based in Scotland.
Worth having a look for those of you who are interested in legal theory and various
other scholarly issues.

Constitutional Dilemmas

is now available in the best bookshops

GAL at NYU

A quick post to flag a project that I have recently become involved with: the emerging field of Global Administrative Law, a research project involving a wide network of scholars, based at New York University. The project is driven by two basic insights: firstly, that much of the global or transnational regulation currently viewed under the rubric of "governance" can be properly seen as regulatory administration; and secondly that a body of administrative law is emerging that seeks to regulate that regulation. There is, however, both a descriptive and a prescriptive element to the research agenda: not merely what are the principles of an administrative law character that are shaping global governance, but also what should they be. The website provides the following working definition of the project (which is fleshed out in much more detail in a couple of conceptual papers on the issue):

Much of global governance can be understood as regulatory administration. Such regulatory administration is often organized and shaped by principles of an administrative law character. Building on these twin ideas, we argue that a body of global administrative law is emerging. This is the law of transparency, participation, review, and above all accountability in global governance. We posit an increasingly discernible “global administrative space”, in which the strict dichotomy between domestic and international has broken down, administrative functions are performed in complex relations between officials and institutions not organized in a single hierarchy, and regulation using non-binding forms often proves highly effective in practice. Exercises of public power in the global administrative space are increasingly channeled, and controlled, by mechanisms of an administrative law type. These include rules requiring greater transparency, adoption of notice-and-comment procedures in rule-making, and the opening of new or strengthened avenues of judicial and administrative review. We thus regard global administrative law as encompassing the legal mechanisms, principles, and practices, along with supporting social understandings, that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring these bodies meet adequate standards of transparency, consultation, participation, rationality, and legality, and by providing effective review of the rules and decisions these bodies make. We describe this field of law as “global” rather than “international” to encompass the enmeshment of national and intergovernmental regulation, the increasing roles of private regulators and public-private hybrid bodies, the wide array of informal institutional arrangements that now operate alongside formal institutions, and the foundations of the field in normative practices, and normative sources, that extend beyond international law sources.

The Project distinguished among, but seeks to encompass each of, five main types of globalized administrative regulation. These are: (1) International Administration, by formal international organizations (such as United Nations Security Council individual sanctions programs, or UN administration of territory); (2) Network Administration, based on collective action by transnational networks of cooperative arrangements between national regulatory officials (such as the Basel Committee of national bank regulators); (3) Distributed Administration conducted by national regulators under treaty, network, or other cooperative regimes (such as the Basel Convention on transboundary movement of hazardous wastes); (4) Hybrid Administration, by hybrid intergovernmental-private arrangements (such as ICANN, the Internet Corporation for Assigned Names and Numbers); and (5) Private Administration, by private institutions with regulatory functions (such as the ISO, the International Organization for Standardization).

New systems of administrative procedures, review mechanisms, and decisional principles have arisen to promote greater accountability in decision-making by this rapidly proliferating variety of global regulatory administrative bodies. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and non-governmental organizations. Global Administrative Law is an emerging field of law and practice addressing both the new structures of administrative law and international law that have arisen in these different institutional contexts, and their normative dimensions, including regime integrity, protection of subjects' rights and promotion of democratic values.

It seems to me that, from this useful and provocative working definition, a number of interesting questions immediately arise at an abstract, general level: in what sense can these administrative law principles be justifiably characterised as "global" (in that the negative justification offered, in contradistinction to the "international", may be necessary but insufficient to justify this rhetoric)? Does it really make sense to talk of one unified global administrative space, rather than a plurality of spaces? What is the relationship of global administrative law to the emerging, if at least equally vague, sphere of "global/international constitutionalism"? And how do the administrative law ends of transparency, participation, review and accountability relate, if at all, to notions of democratic governance?

Such issues are only a small, if important, part of the research agenda. Much focus otherwise is on empirical studies of actual administrative regimes, in order to discern what the principles and norms guiding there function are, and what elements, if any, seem to be common among them. The website provides access to a large number of articles and working papers on the issue. As I mentioned, it is a project that I have recently become (heavily) involved with, so any and all comments on it are welcome!

Toward a Theory of Human Rights by Michael J Perry

This book does exactly what it claims: it attempts to develop a theory of human rights. Perry suggests that a theory of human rights should deal with three basic issues. First, the moral foundation of human rights. Second, the normative relationship between the morality and the law of human rights. Third, the institutional arrangements that best protect human rights.

To each of these three issues Perry offers very stimulating, and conspicuously controversial, treatment. He argues that the moral foundation of human rights can be defined in terms of the principle of dignity and inviolability of each human being. The trouble is, Perry argues, that secular people cannot offer a proper justification of dignity and inviolability. The only sound rationale is religious.

Once the foundation established, the following step is to explain in what way the morality of human rights influences the law of human rights. This is inextricably linked to the two claims of inherent dignity and inviolabililty. In legal terms, it means that those who commit to that morality will have to do all they can to enact laws that do not violate human beings, and refrain from relying on laws that do violate human beings.

Perry takes three areas to illustrate his claims. Death penalty, Abortion, and Same sex unions. Not afraid of challenging conventional understanding, he argues that his morality of human rights requires that death penalty be abolished. It requires that the pre-viability abortions be banned; and that same sex unions be recognised.

All this, however, is not as straightforward as it looks in normative terms. For, the institutional perspective nuances the general picture in many ways. The main question is to know what role should the courts play. Perry argues that the US system of judicial review coupled with judicial supremacy, gives excessive powers to courts. In other words, he disapproves of judicial ‘ultimacy,’ the fact that the US supreme court has the last word on the most controversial issues. Instead, he favours something close to the Canadian system, that he deems a system of judicial ‘penultimacy.’ The Supreme Court expresses itself on controversial issues, but the parliament can, if it wants, overrule the court’s decision thanks to the Canadian ‘notwithstanding clause.’ Perry presents this solution as an elegant compromise that conciliate judicial review with democratic participation. He says the same for the UK HRA 1998.

In the US, judicial ultimacy is not likely to be removed. To mitigate its effect, Perry suggests that court should adopt a deferential attitude along the lines proposed by James Bradley Thayer. Roughly, thayerian deference requires courts to apply the rule of the clear mistake—that is, interference only when the statute is clearly wrong. Thayerian deference is not grounded on the belief that the legislative or the executive are better equipped to take hard decisions. Thayer believes instead that a non-deferential system of judicial ultimacy would render citizens less politically and morally awake. Institutions may make mistakes and the way to redress them is to fight political battles not to devolve all the power to review those decisions to courts.

How does this affect the treatment of the relevant issues from the US point of view? Death penalty violates the constitution, but the court should so rule only if it believes that the legislator has made a clear mistake. Pre-viability Abortion violates the constitution, but the same caveat applies. Finally, the ban on same sex unions is unconstititutional, but court should be deferential along the same lines.

Perry’s book is very welcome. He is right to insist from the beginning to the conclusion that the work on theories of human rights has just begun. His contribution will no doubt advance the debate because it focuses on central issues without seeking approval. His theses are clearly exposed and highly controversial. The debate can begin.

It should begin and take place globally. And here’s my first criticism to Perry’s book. As many Anglo-American scholars, he ignores almost entirely the debates in non-english speaking countries. Most of European countries have produced fine scholarship on these issues, and a lot of this material is also available in English. One example above all is Robert Alexy’s Theory of Constitutional Rights, translated in English and published by OUP.

This leads to a second point. One may argue that Perry draws a distinction between Human Rights and Constitutional Rights. He may then claim that theories have been produced on the latter but not on the former. Indeed, at the beginning he seems to concentrate on international human rights as opposed to domestic constitutional rights. But by the end of the book it is clear, that the morality of human rights he finds in the international arena should also apply domestically, say at the level of the US Supreme Court.

I would find such a distinction helpful as it could underline another major difference between international human rights and domestic constitutional rights. The latter are nowadays well protected precisely because of judicial review, while the former are far away from being effectively protected. This may also point to the fact that Perry’s criticism to judicial review is exaggerated. One may suggest, not so foolishly, that liberal democracies came to protect constitutional rights so robustly precisely because of judicial review. If anything, the UK example shows that during Thatcher’s government rights were not respected and judges had little weapons to fight back. Moreover, parliament was incapable to stand alone for the rights of the citizens. It is such an abuse that led the labour government to entrench rights and to protect them through judicial review.

Now Perry could say that the HRA does not introduce a system of judicial ultimacy, but only an elegant compromise between parliamentary sovereignty and judicial review. Whether that is an elegant compromise, I have many doubts. Whether it will work in the long run, it is another open issue. The HRA is in the eyes of many either too much or too little. It is too much in the very eyes of those who have entrenched it and then complained that it bound excessively the executive in its war against terrorism. Its too little in the eyes of many advocates who fought for a bill of rights, Lord Lester for example, and thought that the HRA could be a first step toward a fully entrenched and fully reviewable bill of rights.

The most controversial of all issue, however, is that of the foundation of rights. Many liberal philosophers, starting from Rawls and Habermas, have amply shown that our secular democracies have borrowed a lot from religious concepts. Dignity and inviolability of human beings may well be concepts of Christian origins, but our societies have translated those concepts to our secular frameworks. This is not to deny their Christian root, to the contrary. But liberal democracies, beyond translation, also made possible the effective protection of dignity and inviolability of human beings. This was not true of the period preceding the establishment of liberal democracies, which we could deem the age of the Res Publica Christiana. During those ages, dignity and inviolability of human beings might have been already strong Christian principles, but their violation in practice also was very common. We may say, therefore, that liberal democracies brought to a totally different stage those principles, and to a certain extent the Church is catching up with the recognition of the importance of the consequences that we may want those principles to have.

Thus, liberal democracies not only translated those principles, but they also transformed them into tools for the improvement of the society. Religion can claim part of merit, but it also has to acknowledge the intrinsic merits of liberalism, as far as the redefinition and concrete protection of those principles is concerned.

To engage with Perry’s book does not detract anything to its quality. To the contrary, the quest for a proper theory of human rights should probably start there.

Constitutional Dilemmas for 2007 (and beyond)

Euthanasia, Same sex unions, the legal status of embryos; these are few of the most daunting ethical issues that are debated in Europe and America.

The risk of polarisation of societies on these issues is great. In short, many believe that you simply can't regulate life at its beginning or at its end. In reality, part of the society believes that god gives and takes life so human cannot decide at his place. Half of the society disagrees and believes that humans must intervene in order to say what is permissible and what is not.

Given that the substantive issue is so difficult to settle, many argue that we should agree on a procedure on how to decide. Again, there's a party that trust supreme courts to do this job, and another faction that believes that representative instituions (i.e. parliaments) should take the lead.

I think that both majority rule and judicial adjudication are unfit for the job. Both would produce more polarisation than reduce it. Courts cannot escape the problem: the scene is always set as a confrontation between two claims, and the court must decide between those two claims. There is little margin for mediation and reasonable compromise. Parliaments, on the other hand, cannot possibly hope to settle these issues by voting. This process would have the result to trigger a neverending parliamentary battle, where opposing parties would try to impose their preferred view anytime they come to power.

Perhaps a better compromise on how to deal with those problems could be a special procedure whereby MPs and various other specialists are brought together to work out a compromise (it would inevitably involve a sacrifice). No simple majority would be allowed, at best a qualified majority (say 2/3) in extreme cases where unrelenting disagreement cannot be placated in any other way.

This is the gist of my new book, Constitutional Dilemmas, forthcoming in June 2007.

GLJ Koskenniemi Symposium

The excellent German Law Journal, a free online journal focusing, in part, on issues of public international law, has a fascinating collection of articles on From Apology to Utopia, written to mark the republication (with a new, extensive epilogue) of the already-classic volume. Countributors are a mix of established academics (such as David Kennedy) and up-and-coming scholars, and include a response from Koskenniemi himself. Well worth a read.

Blair's Battle for Global Values

Tony Blair has decided what to do when he quits his post as Prime Minister:
He will be Philosopher! Here's a lengthy analysis of his political thought on global war and Justice.

This is the abstract: The war on terrorism is not just about security or military tactics. It is a battle of values, and one that can only be won by the triumph of tolerance and liberty. Afghanistan and Iraq have been the necessary starting points of this battle. Success there, however, must be coupled with a bolder, more consistent, and more thorough application of global values, with Washington leading the way.

Feel free to assess Blair's consistency. Words and Deeds do not always match...

Justice for Hedgehogs

I am a fox, I don't like that (See I. Berlin, the Fox and the Hedgehog).
But for those of you who feel close to Hedgehogs, here is Dworkin's recent paper presented at the NYU Colloquium of Legal Philosophy.

This is likely to be the basis of Dworkin's next book, so have a happy preview!

The mythology of international judicial fragmentation

An entertaining post, well worth a read, over at Opinion Juris, where Cesare Romano sketches the parallels between the rise and fall of the International Court of Justice and the theme of usurping the father-figure in ancient Greek mythology. The plethora of fragmented judicial bodies, from the WTO dispute settlement mechanism through international criminal tribunals to regional entities such as the ECJ and ECtHR have rebelled against the ICJ's attempt to subordinate them and retain its own dominant position in the international judicial heirarchy, eventually "emasculating" the body that begat them.

One thing is missing from his analogy, however; in the Greek mythology he refers to, the sucessful usurper proceeded to construct a new heirarchy, with himself installed at its summit. Some such structure seems inherent in the notion of order, and legal order in particular; we must ask, then, if we are to condemn the ICJ as "already passé", who is to become the new dominant actor on the global level? The obvious answer is not, for many, a particularly palatable one, and yet there is only one institution of global reach with a strong (indeed, compulsory) judicial mechanism: the WTO.

With this in mind, perhaps we can retain the hope that reports of the ICJ's demise have been greatly exaggerated. Undoubtedly, it is an institution in dire need of serious reform, but the all-too-ready willingness to confine it to the textbooks of international legal history itself creates the risk, which Romano himself fears, that the dominant role of general interpreter of international law, the apex of the fragmented international judicial system, will be assumed not by the best suited, but simply by the best placed. In the current global climate, and for the foreseeable future, it is only the perceived necessities of economic logic that have the strength to get states to commit to compulsory dispute settlement measures.

The fear, of course - and one that Romano shares - is that in getting rid of a tribunal with general responsibility for, and competence in, all aspects of international law, we will allow a single conceptual framework to dominate and interpret all others. The ecomomic mindset is already extremely influential in global affairs; to allow it to come to dominate in law itself would be potentially disastrous for the diversity of viewpoint and in-depth specialisation that has driven the fragmentation process that we have witnessed over the past few decades. This specialisation has brought a new level of maturity and richness to the international legal scene; it is something that we should be looking to preserve to the greatest degree possible whilst retaining a sense of order.

There are certainly no shortage of examples, from ancient or far more recent history, of cases in which people have been too quick to welcome the demise of an old ruler without full awareness of who will rise to take his place, and of the new heirarchical structure that will be initiated, and have come to regret the speed with which the old was jettisoned to make way for the new. It may be, of course, that the ICJ is simply too far gone to rescue; if that is the case, however, this is a time for the utmost vigilance as to its successor, not for either the triumphalism or complacency with which news of its demise is often greeted.

Romano's short piece, however, is neither complacent nor triumphant, and provides us with a vivid new way of imagining both the history and the future or the international judicial system. Like I said, well worth a read.

Constitutional Dilemmas

Law is meant to solve conflicts between competing claims. Constitutional Rights are normally considered to be a very efficient tool to achieve that aim.

What if, however, constitutional rights conflict one against another and it is impossible to compare their strength, or to rank them?

This is the object of my forthcoming book with OUP titled Constitutional Dilemmas. Conflict of Fundamental Legal Rights in Europe and the USA. You can learn more about it here

Justice is served!

Almost exactly a year ago, I posted a short blog entitled "On the arbitrariness of rules and denials of natural justice", which focused upon the injustice of certain referreeing decisions in the France v. Scotland match in the Six Nations rugby union tournament.

I am delighted to be able to report that the rerun of this annual fixture, played yesterday, was officiated impeccably...

European Legal Theory!

European Legal Theiry and Constitutionalism is probably the most exciting intellectual discipline nowadays. The many dilemmas revolving around European integration and European future have sparked an icredible mass of high quality literature.

To have an overview of this literature, have a look at the new issue of the Oxford Journal of Legal Studies. That issue published on-line today, contains a good review of Legal Theory and the European Union by Neil Walker. This issue, by the way, celebrates the 25th anniversary of the Oxford Journal.

This is a good occasion to reiterate the committment of this Blog to follow the most exciting legal and philosophical issues in America, in Europe and Beyond!!

Supranationalist 6

I agree with Lorenzo that there is something fundamentally wrong about the present European economic and social structure. Increased unemployment, lack of efficient integration models for the immigrants, poor urban planning of the last decades of the XX century, but also global psychosis created by the virtual propaganda of the “war on terror” (that certainly had its impact on Europe as a whole, including those EU states,like France, that did not participate in the war against Iraq) all contributed to the increased alienation of the first, but especially second generation immigrant population.

Here I need to make a small digression, my intention is not to defend the French integration model, but only to expose certain critical reflections on this system to the attention of the readers of our blog. The Economist for example blames the French head-scarf ban and the French “unease” over allowing Turkey into the EU, for the increased social alienation of the Muslim population. This position is unfair, and possibly biased (Economist to a large extent supported the war on Iraq), since it is probably much more the global war on terror and the war in Iraq, than the French slowing down of Turkey’s entrance in the EU, that contributed to the creation of the social climate in France where the Muslim population became ostracized. Arguably, opposition to Turkey’s entrance into the EU, is also a consequence of the global war on terror.

To come to the point, it is more the general social atmosphere that generates the present inflammatory situation, not so much the French assimilatory model or the multicultural model.

As far as the economic situation is concerned, there Lorenzo is right, unemployment in the suburbs is appalling (informal employment practices especially for white-collar jobs are racist) and the French welfare state is in crisis (like the German one), however, what is the alternative? It is probably true that due to the welfare system that does not create incentives to search for work, large parts of the population (mostly second generation immigrants) fall in a situation where they sit at home and do nothing, which makes them frustrated and angry, but in US (E.G.) the situation is similar notwithstanding the different integration model and the neo-liberal economic system. Present riots in France are a daily occurrence and people do not even write about it any more. On the other hand, poor, often minority population in the US, live in their (segregated) parts of big metropolis, and they are excluded not only from the city centres and middle class neighbourhoods but also from the media, so that we do not hear anything about them. More importantly economic situation in poor metropolis areas is so bad that there are no cars and no government employment centres to be burned at the first place. Is that the better model? Certainly not. France is in the centre of attention exactly because it is strange that something like that happens in the welfare-state Europe. This should certainly be the reason that should worry us but not necessarily lead us towards complete reconstruction of the classical European economic and social model. Lorenzo does criticize this model, but fails to propose a concrete alternative, like this, as his position stands, one may think that he advocates an economic model of the US, is the level of social integration better there than in France…this is arguable, but if it is it is certainly not because of the neo-liberal economic model. French riots, until present, caused only one fatal casualty, look at the number of murders in the US. Just another remark on Lorenzo’s writing, I agree with Lorenzo that bad policy choices (appalling – and to remind corruption led urban planning) created a situation that increased the level of frustration of the young immigrants, however, to call their violent behaviour (however justified in terms of causes of their anger) “social struggle” is not-appropriate, a social struggle has its end, not only means, in this sense when black-block members brake cars they leave a clear political message, when young Italians who committ acts of proletarian expropriation take goods from supermarkets they act politically, the young people in French cite do not, they represent no-one but themselves and they do not act politically.

On the fundamental point, however, I agree with Lorenzo, we need to work on the transformation of our European home. In the economic sense this means reforming the welfare state model not in the direction of abolishing it but in the direction of creating a model that accounts for the realities of the global market but that also safeguards the ideal of social solidarity (with the accent on the second). We also need to strengthen our democracy, possibly by introducing new (see Supranationalist 3), technologically innovative models, into the mechanism of democratic representation. Look at the example of Estonia, where it is now possible to vote on parliamentary elections via internet. This would allow slow but steady implementation of the model of direct democracy that would have the propensity to significantly increase the legitimacy of our polity. Moreover, in order to safeguard the international image of the EU, it is of outmost importance to maintain the present foreign policy orientation of the Union, meaning that the EU must strictly work in the direction of strengthening the foreign policy approach that is non violent and respective of the UN and the peremptory legal norms of international public law. This does not mean that the EU should support status quo, the EU could work to reform the UN institutional structure, but the result of the reform must meet the requirements of the present UN Security Council members plus it must acquire a broader consensus on the global level. Such international position, would certainly have a beneficial effect on the internal social and economic situation in Europe. In order to play such a constructive global role, the EU must, have the power to act rapidly and decisively in the international arena, for this reason I must once again express deep regret for the failure of the EU Constitution draft. Finally, it is of fundamental significance that our democracy frees itself from the element of fear, which is having a significant negative impact on the social cohesion of our societies.

Supranationalist 5

In response to Srdjan:

I don't think that the french social model is the only reason why these accidents are taking place. France is a model state in Europe: both positively and negatively. Nowadays, I believe, the crisis of the nation state, so well represented by France, is clearer than ever. France not only displays a social failure, but as I said, also a constitutional and an economic failure. The constitutional failure consists in the total lack of political accountability on the part of the President. The economic failure consists in the great level of unemployment (recall that if national unemployment is around 12%, in the suburbs it nears 40%).

Firstly then, I do not think that the problem is only the french social model. This is only the visible part of the iceberg. The rest, however, is as problematic, if not more.

Secondly, I do not think that France is alone in this crisis. Germany, Italy, Holland, Belgium and many others are showing structural problems at the political, social and economic level. Only they haven't reached yet the boiling point. But France can indeed works as a catalyst; what is happening in France can easily spread all over Europe.

The answer lies at our doorstep. Instead of chanting jollingly how beautiful Europe is, let's think about the structural failures of our Nation States, and proceed to a serious reform towards 1) more employment 2) more political accountability 3) a stronger, deeper, understanding of solidarity between classes, races, religions, and generations.

The last element is particularly important as I firmly believe that there is a class of people in Europe who is guily (maybe by default). Those Europeans born a little after the WW2, our parents, has lived in a booming era that accompanied the reconstruction of Europe. Now they find themselves in a comfortable position; they have everything and they do not want to compromise on anything. But Europe is not anymore in a booming position, if anything it is going down the slope, and global competition is not helping this process. Thus, the societal mould designed for our parents post-war booming societies is not fit for its job anymore.

We need a postnational, flexible, structure, able to integrate all the people that live nowadays in Europe as well as able to send outside of Europe a message of solidarity and commitment to collaboration for the sake of reaching a certain kind of stability.

Supranationalist 4

Few days after May 29, when France rejected the European Constitution, I posted a comment stating the deeper tensions underlying french politics. Back then, I said that May 29 was a 'tragedie francaise.'

My conviction was, and still is, that the French model of integration was flawed. Moreover, structural economical problems aggravated social tensions to the point that it all exploded, as a bomb shell, in one day.

Those tensions are not deflating. To the contrary, they are mounting and they will devour the social matrix in France, as these days of violence show. And the French government simply disagrees on the correct policy to adopt.
French Journals argues that the crisis is due to the inability of the police. BULLOCKS! It is a deeper crisis and it is mounting, and as I said it will devour France.

Unless, France realise that a complete rethinking of its social model, and the model that it wants for Europe, must be undertaken. Integration a la francaise from the top down does not work in France and does not work in Europe either. The ruling elites in Paris and Brussels should go through a process of total purification, if not eviction. A stronger and deeper democratisation of the institution of power should be carried out. Policies to increase employment should be given priority; and the job market should become more flexible in order to allow the circulation of european workers and to facilitate the integration of immigrants in the economic spheres of the society.

Europe is the only way forward. But not an Europe a la francaise or a la Britannique, or a la Jamaiqua for what it matters. But a genuinely supranational polity that attempts to overcome the more and more widespread failures of the Nation States, beginning with France, the most succesfull of all Nation States.


For previous Supranationalist Papers, click here, here and here.

Yoo are the Master 2

David Cole exposes in a marvellous short piece why Yoo was so influential with Bush's administration and, yet, why his position is absolutely flawed.

Yoo was extremely influential because he said exactly what Bush wanted to hear: that the President has virtually absolute freedom as far as foreign affairs are concerned. Yoo then gave legitimacy to that claim by wrapping it in a very influential philosophy of constitutional interpretation, that is originalism.

But the problem is, as Cole suggests, that an originalist interpretation of the American Constitution only show that the Framers wanted the executive to be closely checked by Congress. This applies to both treaty making and war declarations. This point sounds very convincing considering also that the Founding Fathers were deeply influenced by Republican writings, which strongly insisted on the political accountability of the executive.

Thus, if Yoo achieves anything, this is the complete bending of the intentions of the framers. Cole goes on wondering whether that bending is normatively justified after 9/11. In other words, he charitably asks whether Yoo's flawed originalist position is still justified on political grounds arising from the present international context.

Cole' s answer to that question is possibly more stifling than his opinion on Yoo's originalism, and righly so. Cole argues that the flexibility granted by Yoo's interpretation has had atrocious consequences. America, who once played by International rules, and was perceived as the 'good cop' in the global arena, is now regarded as the 'bad cop' because of its willingness to crash its enemy with whatever means.

Moreover, it is very difficult to redress the present situation. Trying prisoners held in guantanamo now, would mean to espose the US to the review of the interrogation technique uses with them. Thus, it is probably preferable to reach a private compromise with those prisoners in order to avoid public blame. But the problem is that the international community is already blaming the US for what it did. We are therefore left with a deadlock, which will not be easily unlocked.

Yoo Are the Master

David Cole has a brilliant piece on John Yoo and his impact on Bush's administration after 9/11. You can find it on the New York Review of Books. Highly recommended! More on this later...

Alito and international law

When Chief Justice Roberts was in confirmation hearings he unequivocally stated that he believed that the use of foreign court precedent and international law generally, was inappropriate in interpreting the US law. Supporters of this position are likely to find comfort in the nomination of Judge Samuel Alito to the US Supreme Court.

While its not the most scientific of searches, a search of Judge Alito's opinion (over the past 15 years) indicate that he has referred to "international law" in four cases, and "foreign law" in 0 cases. Further, the terms "international precedent" and "foreign precedent" are not present in any of his opinions.

The movement of using foreign precedent (as espoused by Breyer and O'Connor) in the US Supreme Court appears likely to be a short-lived phenomenon.

International Justice versus Peace

Recently there was an interesting exchange of opinion in the International herald tribune regarding the recent arrest warrant, issued by the International Criminal Court against top rebel leaders of Uganda’s Lord’s Resistance Army, “shadowy group that has been terrorizing northern Uganda for 19 years”. Arguably, such arrest warrants are likely to alienate these leaders and make them ‘go back to the bushes’ and abandon the participation in the preparation of peace accords between the above mentioned rebel group and the Ugandan Government.

Richard Goldstone, former justice of the Constitutional Court of South Africa, former Chief Prosecutor for the International Criminal Tribunal for the Former Yugoslavia, wrote an opinion article that was strongly in favour of international justice (vis-à-vis peace). He argues that as far as short term consequences there might be some cost but that in the long term perspective ICC involvement is for the good of peace in the world. Katherine Southwick, a US lawyer and a long term researcher in Uganda is strongly against the arrest warrant of the ICC, that she regards as irresponsible. Ms. Southwick says that ICC became an “obstacle to what International Crisis Group called ‘the best opportunity for peace that northern Uganda has had since the war began’”.

This discussion is interesting and it brings one necessarily to question to incremental validity of International tribunals and international justice. Namely, is international justice too blind? Is political responsibility, knowledge and emotional link with a particular political and social context, a necessary element of an adequate system of justice? Thus, are only national courts endowed with a sensibility, and ultimately political responsibility, that allows them to measure carefully before they make a move, such as take judicial action against leaders of the Lord’s Resistance Army in such a particularly sensitive moment for Uganda’s peace.

I cannot offer a definite position on this issue. Some time ago, in the Serbian political context I wrote an article for a publication of the Italian “Mulino”, in which I criticized the legal action of the Prosecutor of ICTY who always made secret indictments public in sensitive political moments in Serbia. I must say that I revaluated my position to a certain extent. Hence, one could say that if international justice is backed up by certain mechanisms in which the international community manages to balance the negative effects of the pursuit of that justice, then the legal action is justified. In the case of Serbia, this accompanying moves include ‘carrots’ of financial aid and potential EU membership for the country, in Uganda, on the other hand there is very little on offer and it is rather dubious if the goal of international justice is ‘worth more’ than the achievement of a pragmatic peace-deal in the country.

Kingsbury's alternative theory of public international law

Benedict Kingsbury offers an alternative theory of public international law, in his paper 'the problem of the public in public international law', presented at the NYU colloquium of Legal, Political and Social Philosophy.

Here's the paper.