Healing the Law
Schell, Jonathan, The Nation
The Supreme Court of the United States has had two historic encounters with George W. Bush. The first was its decision to stop the recount of the presidential vote in Florida in December 2000 and, in effect, to put Bush in the White House. The second was the series of decisions rendered in June in the cases regarding the detainees in Guantanamo and the two American citizens being held as "enemy combatants."
I was watching television coverage at the moment the Court stayed the Florida recount and witnessed a vote counter lift her hand to examine a ballot and then, when the news of the decision came, drop it, with evident sadness, back onto the uncounted pile. The law, usually seen as a support and foundation of democracy, had in this case visibly stopped it cold.
The decision sent a shock wave through the legal community. Some 673 law professors from 173 law schools signed a statement asserting that "by stopping the vote count in Florida, the US Supreme Court used its power to act as political partisans, not as judges of a court of law." Professor Robert Post, then teaching constitutional law at UC Berkeley, wrote that the decision made him feel "shame" before his students. There rose up before his eyes "a searing and disorienting vision of a world without law."
Even Post probably could not have imagined how quickly the vision would materialize. For if the policies of the Bush Administration have exhibited any one constant theme, it has been contempt, visceral as well as philosophical, in domestic as well as foreign affairs, for law. The Administration's distaste for international treaties and laws soon became evident. The President withdrew from the Kyoto Protocol on global warming and the Anti-Ballistic Missile treaty, pulled out of talks to create an inspection system for the Biological Weapons Convention and "unsigned" the Rome statute for the creation of an International Criminal Court. Since laws and legal opinions come into effect only upon signing, the act of "unsigning"--an invention of the White House, with no precedent in the annals of the presidency--seemed to symbolize a world of evaporating statutes.
The deed was one aspect of a comprehensive onslaught, which quickly unfolded, on the very idea of law. Its chief elements were the claim by and for the United States, and the United States alone, of a right and duty to order the twenty-first-century world through the use of America's unchallengeable military force. The vision's essential corollaries were the right to wage preventive war and to overthrow other governments violently and unilaterally. Its goals were to stop the spread (but not reverse the existing possession) of weapons of mass destruction and to remake the world politically and economically in the image of the United States.
The conflict between this vision--correctly called imperial by many of its supporters as well as its detractors--and international law is not incidental but systemic. The ideas of empire and of international law are both ordering principles: Both are means for organizing the world. They are in competition for the same turf. The world can no more be both an imperial world and a world of law than one car can be driven by two people to two places at the same time. Or, to be exact, to the extent that the imperial vision advances, the legal project must be thrown back and vice versa. The essence of law is the establishment of a single consistent standard, which is to be obeyed by ruled and ruler alike. The essence of empire is imposition of a double standard--with one standard for the imperial ruler, another for the ruled. The imperial principles of preventive wars and regime change cannot be principles of international law, because their universalization would bring chaos.
The point, of course, is not that in the year 2000 the world was governed according to law (for it was not) only to be suddenly thrown into disorder by the imperial ambitions of President Bush. …