Adios, 'Rule of Law'

The present administration, according to many of its fervent supporters, are the heirs of "the Reagan Revolution," where domestic optimism about America's future and a healthy international fear of U.S. military might reign supreme.

Symbolism aside, there is an inescapable need for Americans to confront candidly the ramifications of the president's preventive war doctrine against the backdrop of the U.S. led invasion of Iraq and in light of the U.N. Charter -- an international treaty that, due to our constitutional commitments, is supposed to be as legally binding as the Constitution itself; to say nothing of the fact that it was American representatives who played a seminal role in creating the UN's founding document in the first place.

So, if we are talking about the rule of law and the legacy of the Reagan administration, the stated views of Reagan's leading legal philosopher are worth noting.

Charles Fried served as Solicitor General under "the Great Communicator," primarily to communicate to the judicial branch the ideological agenda of his boss, as he carefully explained in his book "Order and Law: Arguing the Reagan Revolution -- A Firsthand Account."

In it, Fried rejects "twist(ing) doctrine (and) common sense in order to get to a result (the courts) felt was substantively right." On the other hand, he also dismissed what's now in vogue in some conservative circles -- a rigid "originalist" analysis of the Constitution in which the only thing that matters is what the Framers "intended," as if historically-frozen legal interpretations could do justice to changing historical circumstances.

Trying to navigate between the extremes of judicial activism and the "empirical iron rules" of "original intentions," Fried's idea was to re-introduce "a conception of law disciplined by a respect for tradition, professionalism, and careful, candid reasoning."

This is what he meant by "the rule of law," which he acknowledged as essentially the rule of logical reasoning -- so important because, if clear, it gives public notice about norms and so forth and, therefore, provides stability.

"Men of intelligence and reasonable good will can come to a fair measure of agreement about what the law is, and that our liberty is most secure when in the end it is to the rule of law that government power is responsible." For Fried, order, which can only be maintained through the rule of law, is a necessary pre-requisite for liberty to flourish.

Now, let's turn to the UN Charter -- its undergirding principle being found in the Charter Preamble: "armed force shall not be used save in the common interest." Article 2(4) further elaborates, requiring all members states to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state..."

The Charter, however, does allow for the use of force under two circumstances: 1) in "self-defense" against "armed attack," and 2) upon the determination of the Security Council that a threat to international peace warrants military action.

What is called "anticipatory self defense" has been a part of customary international law for quite some time. And it has always been viewed with suspicion by legal scholars like William Galston, who points out that "anticipatory self defense" can be easily mis-used to justify military force in pursuit of political aims, in which case "anticipatory self defense ... becomes an international hunting license."

Bush's preventive war doctrine differs substantially from the concept of a pre-emptive strike. Pre-emption is based on an "imminent" threat, while the preventive use of force is based on a state's capacity to attack instead of its intent to attack.

Preventive war is a dangerous proposition given its ambiguity and its implicit justification for other countries to capitalize on the precedent, reasoning that military action is necessary to pre-empt the pre-emptor.

So much for Fried's "conception of law disciplined by a respect for tradition, professionalism, and careful, candid reasoning." Adios "rule of law." Some of us will miss you.

Sean Gonsalves is a Cape Cod Times staff writer and syndicated columnist.


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