Realism Intrudes: Law, Politics, and War
Hughes, Lynn N., Houston Journal of International Law
[R]ationality is rule-observance, consistency, like treatment of like cases. Unless an authority, an organisation, ... is rational in this sense, we feel rather helpless in the face of its unpredictability, its caprice.
Ernest Gellner (1)
IF THERE MUST be people, there will be politics. Some politics is converted through strict processes into law. Some politics is the resolution of life's frictions--its dilemmas, competitions, and indeterminacies. It can have cooperation and compromise or expedience and exploitation, depending on how well it is done. Some politics is between individuals and some between agglomerations of them. Some politics requires force.
Good and bad people--good and bad politics--require judgments to be made--made and enforced. The rule of law--the disinterested, consistent application of neutral standards--can be used to structure ordinary and violent politics for the good of mankind, but the rule of law is damaged everywhere if we pretend that law is at work when interest and will use it selectively and partially. Like our Constitution, the concept of the rule of law is largely a question of procedure. From Magna Carta's "law of the land" (2) to the Constitution's "due process of law" (3) the idea is equality before the law. As the age of those two documents shows, (4) we have had a long struggle to get as far as we have. A casual glance at the record shows that we have frequently failed.
The rule of law is philosophically simple. It is the practice of treating like cases alike. It does not say much about the policy content of laws, at least not directly. It does require that contracts by Hindus be enforced just as contracts by Navajos are enforced.
One hard part is deciding what exactly is alike what. Equality before the law should mean that the government, as a party, is obliged when a person would be. Even in countries where law has been established most thoroughly, governments may not be required to respond in legal actions by ordinary citizens. In the United States, we still debate whether to apply law to governments, allowing some Georgia county to claim that it is an immune sovereign like a Stuart king. (5)
A system exemplifies the rule of law to the extent that its official standards are prospective, general, comprehensible, coherent, stable, few, and public; and to the extent that they guide--consistently as written--the issuance of limited decisions and to the extent that they hold those who make and apply the rules accountable.
To be law, the reasons articulated for its application must be philosophically moral. They must be general, verifiable, and justified.
Law is prospective. Rules are written before an event. Rules written to apply to a past occasion are not law; they are only rules. People must be able to know what the law requires before they make their choices.
Law is general. Rules written to determine the outcome by some status irrelevant to the case are not law. When rules say, for instance, party members win or blacks cannot testify, they are not law. Their partiality reveals them for what they are--exercises in power.
Law is regular. How elaborate the process should be varies. Known and proportionate procedures are integral to law. Notice and a hearing are the bedrock of justified decision making. The information used to decide a case must be verifiable. The law relies on objective data, not revolutionary truth.
One component of regularity is the concept of jurisdiction. The content of the case--the transaction--must somehow be the business of the court. Regularity requires that the institution, rule, act, and person have a substantial relation among themselves. Usually this relation is grounded in territory--the location of the act.
International law has no consistent answer to the question of whose legal business includes gross misdeeds in another country. This question is addressed in international politics, and that is distinct from what we mean by law. …