Following up on last week’s justice theme, it seems appropriate to get down some ideas about the rule of law. Particularly, I’m intrigued by the twisting and contorting of principles in order to fit morally and (I would hope) legally unambiguous events into palatable frameworks of understanding. Perhaps absolutism and relativism will constantly be at odds in the world of circumstance and contingency, but it doesn’t seem necessary to jump to moral (or amoral?) extremes in order to confront the degenerative habit of shrouding the wrongs of power in the garb of the law. The just war tradition accounts for wrongs in the pursuit of justice (I’m thinking of Walzer, in particular), providing a normative framework for means as well as ends. Consequently, just war considerations often get dismissed in policy discourses as either too permissive or as ex post analytical models; tragically, this habit too regularly leads to the absence of normative conditions altogether.
While it must be the role of policy to pursue the requirements of justice, our highest laws must be allowed to stand entirely for those absolutes that cannot be sacrificed in the name of a free society. Thus, foundational laws (constitutions, etc.) often represent principles that may rise above political expediency, interest, or competition. National sovereignty is but the means of instituting law, independent of the body of principles of which the law is the face. The point that I’m trying to drive towards is, thus, that when even the fundamental values upon which our conceptions of justice and right are based become subject to question, as has recently occurred in certain legalistic opinionating, wriggling, and obfuscation, then the corruption of the rule of law becomes a very real threat.
The outgoing administration’s efforts to somehow charm the law into submission to political motives appeared on Sunday in a simulacrum of reason that capstones the unwitting and incessant self-parody of Messrs. Bolton and Yoo. Warning against future overreaches of executive power (by those liberals, of course), they offer the tired excuse that American sovereignty (and, to their credit, statutory accountability) will be sacrificied to indefinite international whims in matters of economic, resource, and physical security (Kyoto, climate policy, and nuclear testing). What seems to always get missed in the bloveating about compromising American strength is the impact that American leadership on these issues could have in furthering a liberal democratic agenda (that’s small L, small D, and has nothing to do with political parties), advancing diplomatic (and strategic) interests, and encouraging economic dynamism in fields mired in past technologies and resources. By not only participating but actually leading like only America can (for better or worse!), accountability under just laws becomes a means of foreign policy and an end in itself.
