In the Name of the Law: The Terrorist Attacks on America Showed the Peculiar Vulnerability of the Modern World Economy. Can We Develop a Legal Order That Adequately Protects It?

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The use of force is barbarous unless it is in support of some concept of order. We are reluctant to go to war for oil, for profit, for territorial gain or for conquest pure. To justify violence, we invoke the stability of the international system, the sacred soil of the motherland, the historic destiny of the nation, the rule of international law, the desirability of making the world safe for democracy, civilisation, socialism or something similar. We talk of sacrifice in war precisely because violence is, or should be, sacred.

Even when, in retrospect, we judge that the use of force has been wrong--either because it was mistaken or because it was illegitimate--it has been justified with reference to some higher goal. The Soviet Union invaded Afghanistan to support the spread of a new socialist world. Britain and France defended their action over Suez to protect the world from tyrants who were ready to take the law into their own hands and seize private property. The US fought in Vietnam to prevent the spread of communism through south-east Asia and the world. At other times, wars have been fought to preserve the balance of power, to enforce the doctrines of the Church, to spread the teachings of the Prophet, to assert legitimate claims on an inheritance, or to create a new order in Europe or Asia.

There may be occasions when force is used without such a justification. Perhaps the violence of the Revolutionary United Front in Sierra Leone comes into this category. But even in these cases, as often as not, some spurious tale is told of magical powers or tribal revenge. Very likely, when the barbarians sacked Rome, they did so in the name of ancient liberties or the honour of the clan.

Today, when we have lost faith in nation, God and history, we prefer to make war in the name of law or of humanity. Or we may do so for the preservation of an international order that is supported by law and which tries to operate for the good of humanity.

Every age remakes the law according to its needs and its values. Domestic laws and constitutions change to meet the needs of the times. In the past hundred years, the kings and emperors have gone, retired from politics to their palaces, deserting the pages of the serious press for the world of fashion magazines. In most advanced countries, women have acquired new rights. Racial discrimination has become illegal; abortion and homosexual practices are increasingly permitted. New crimes such as hacking have been created to match the new technology, just as copyright was invented to take account of the coming of print.

In the same way, notions of international law change to match the changing world. The idea of the state as sovereign (replacing the universal jurisdiction of the Church), the laws of war, the outlawing of piracy, the abolition of the slave trade, the concept of self-determination and the doctrine of human rights have contributed to a growing idea of international law. The last two of these are perhaps especially significant, since they represent the beginning of the encroachment of international law on the domestic sector.

Military intervention is justified if it represents a kind of self-defence by the international system, if its objective is to preserve the values and order that enable men and nations to live and go about their business. It is, therefore, important to ask what sort of international order we live under. The answer is that the world we live in today has two striking characteristics, both with important consequences for the legal order. First, it is a world driven by a global economy; second, it is a post-imperial world.

Globalisation needs peace, order and a framework of law. Just as the nation state grew largely to allow orderly economic exchanges within particular boundaries, so international institutions are growing now to allow trade to flourish across boundaries. …