Monday, July 16, 2018
Elder of Ziyon
Champions of
legislation
in Ireland calling for a boycott against Israel (and Israel alone)
for the crime of “Occupation” struggled to craft a measure that would define
“occupation” so narrowly as to exclude every other dispute in the world (from
China’s domination of Tibet to Turkey’s conquest of half of Cyprus) where one
nation is in control of another’s territory.
While the legal
response to Ireland’s boycott legislation has interesting ramifications,
the attempt to create law specifically to punish one nation for an alleged
crime that could easily be directed at many others, and justify this injustice
using the language of “international law,” got me thinking about whether the
concept of international law truly exists.
In previous
postings, I’ve written about how BDS supporters would like to turn
the Middle East conflict from a political dispute to a legal one since political
disputes can only be solved via compromise (which they’re not interested in)
while legal ones require no such compromise but simply the demand that anyone
acting illegally stop doing so.
But to get
beyond the politics to the core of the matter, we must look first not at
international law, but at law itself.
And the first thing we need to recognize is that rule of law rests on
two critical principles: consent and enforcement.
As Hobbes
pointed out centuries ago in his Leviathan,
agreeing to live under the rule of law requires one to give up a certain amount
of freedom in exchange for important benefits (such as the ability to live free
from anarchy). And given the anarchy of
the religious wars in Europe that Hobbes was living through, he felt it
necessary to give up nearly all individual freedoms to live under a state that
could keep the law of the jungle at bay.
We seem to
have reached a point in history when the freedoms we must relinquish to live at
peace are not so all-encompassing. But
they are our freedoms, which is why
members of a society must consent to live together under a set of rules (laws)
for a law-based society to function. Now
one can make the case that a child born into a society of laws doesn’t get the
chance to make such a choice him or herself.
But the pact described above is a multi-generational one in which
citizens agree not just to live by certain laws but to raise their children
believing that living under these laws is the right thing to do.
Enforcement
is the other requirement for the rule of law to function, specifically the
existence of an entity with a monopoly on the right to use violence to enforce
the law as well as sufficient power to exercise this monopoly. Absent an entity to take on this role as sole
enforcer of the law, you end up back with the aforementioned anarchy (or, at
best, a society where the blood feud becomes the means of seeking legal
redress).
Despite
various historical attempts to prove otherwise, one cannot have a law-based
society based solely on consent without an enforcing power. Attempts at creating such consent-based
societies (such as various communal experiments) either degenerated into violent
struggles for power (i.e., the law of the jungle), petered out over time, or
existed (and may even continue to exist) as novelties under the protective
umbrella of the state.
Interestingly,
one can have a law-based society based only on enforcement (not on
consent). But these tend to be tyrannies
where the rules that are harshly enforced originate from the caprice of the
rulers (be they kings or Politburo members), rather than by consent of members
of the state.
I mentioned
states in the last two paragraphs since, in our modern age, the only institutions
that have been able to effectively implement the rule of law are nation states. In democratic societies, both consent and
enforcement exist together, while in totalitarian states the rule of law is
implemented by enforcement alone. But
outside of a cohesive political entity within defined borders and a citizenry
that understands themselves to be members of a society within those borders,
how one defines the rule of law becomes much less clear.
This becomes
particularly apparent when you start to discuss international law which neither emerges from the consent of the
governed nor exercises (or even possesses) the kind of enforcement mechanism
needed to implement its judgments.
So in an era
when nation states are still the primary political actors on the world stage,
what are the origins and what is the significance of what we call international
law?
To be
continued…
