Coercing Virtue

by Robert H. Bork

  Since the action in Grenada and Nicaragua, the supposed international law on the use of armed force by one nation against another has become even more inconsistent and useless for purposes other than propaganda abroad and partisan wrangling at home. When the United States invaded Panama (“Operation Just Cause”), the Bush administration offered several legal justifications for the operation: defense of U.S. nationals, defense of the canal under the Canal Treaty, the need to apprehend General Manuel Noriega (who was charged with international drug dealing), and the need to support the democratically elected government. The international law journals tended to be critical of the invasion as a violation of law. Professor Louis Henkin thought it a “gross violation,” while Professor Michael Reisman supported violations of national sovereignty where they were necessary to support popular sovereignty. Columnist Mona Charen contended that the United States should have argued the moral rather than the legal justification for the invasion, a position that accords with my own. Henkin himself, while stressing the crucial importance of international law, suggests how misleading it is to call that body of conflicting principles “law”:

  Customary international law, and even the interpretation of a treaty, may also [like the common law] change in response to new needs or new insights. A state might knowingly deviate from what had been established law (or established interpretation of a treaty) in the hope of changing the law. But that state does so at its peril. It does so at the peril that it will not succeed in changing the law and will be adjudged to have violated the law. It does so at the peril that it may succeed in destroying or eroding established law, to its later deep regret.

  It is difficult to see what “peril” is courted other than the peril that the United Nations will adopt a condemnatory resolution and that dissenters within the nation, including its professors of international law, will wage a verbal war against their country’s action as lawless.

  Professor John C. Yoo, noting the silence of international law scholars concerning NATO’s actions in Kosovo, wrote that “the central defect in international legal scholarship” is that “[i]nternational legal scholars are only too happy to attack in very harsh language, wars with objectives they oppose.” Wars to contain the spread of communism in Central America or to maintain the balance of power in the Middle East are denounced as violations of constitutional and international law. “Wars that promote goals long sought by international legal scholars, however, such as the advancement of universal human rights over the principle of state sovereignty, do not provoke criticism, because much of the American international law community agrees with the result.” Moreover, “[w]hen the analysis of international legal scholarship becomes so result-oriented, it undermines the very nature of international law as law. … [It] serves to reinforce the idea that international law represents nothing more than the policy preferences and intellectual agendas of scholarly commentators, rather than neutral principles that govern the conduct of nations.”

  By contrast, there was little criticism of the Gulf War because President Bush obtained the approval of both the United Nations Security Council and Congress. While that tactic deflected criticism, it set what may reasonably be regarded as an unfortunate precedent. It is by no means a constitutional certainty that a president must receive advance approval from Congress before ordering armed attack, though it may be the prudent course in the domestic politics of the moment. The consent of the Security Council was obtained only because China abstained. In the future, the United States may not be so lucky. Fortunately, later events suggest that, if a precedent was set, it is a very weak one. United States participation in the NATO attack did not receive advance approval of Congress or the Security Council. Kosovo, along with other military actions around the world, weakens and probably erases the Gulf War precedent about the necessity of congressional or United Nations approval.

  David Rivkin and Lee Casey summarize the rise of today’s version of international law. Since the end of the Cold War, a number of international organizations, human rights activists, and states have worked to transform the traditional law of nations governing the relationship between states into something akin to an international regulatory code. This “new” international law purports to govern the relationship of citizens to their governments, affecting such domestic issues as environmental protection and the rights of children. Among other things, as the authors say, it would “nearly eliminate the unilateral use of military force; create the unattainable requirement of avoiding all civilian casualties in combat; promote the criminal prosecution of individual state officials by the courts of other states and international tribunals; and permit – or even require – international ‘humanitarian’ intervention in a state’s internal affairs.” International law poses a real threat to every nation’s ability to make its domestic laws and to act abroad as its national interests dictate.

  CONCLUSION

  The characteristic danger of great nations, like the Romans and the English, which have a long history of continuous creation, is that they may at last fail from not comprehending the great institutions which they have created.

  Walter Bagehot

  One of the indispensable institutions of Western civilization is the rule of law. That rule is central to democratic government, a vigorous economy, and individual liberty. A functioning rule of law requires that law be understood to have force and moral weight of its own, a force and weight independent of the political and cultural struggles of the moment. That is another way of saying that the rule of law, when it is observed, is the guarantor of the supremacy of process in public affairs, and, further, that self-government, stability, and safety depend on that supremacy.

  It is, therefore, ominous news that the rule of law has become confused with, indeed subverted by, the rule of judges. That confusion and subversion are precisely what judicial activism accomplishes. Activism in constitutional rulings can be employed in the service of any desired result; an honest reading of a constitution cannot be so employed. Activism enforces the objectives of a dominant minority above the democratic process. In our case that minority is the New Class, at least for the time being and for the foreseeable future, a group as authoritarian in its outlook as any other.

  The old civics lessons were sound. Rule by the people, which all Western democracies proclaim, means that voters choose legislators and executives according to the policies the candidates offer, that those elected will enact rules, and that judges and juries will apply those rules impartially and as intended. Unless that pattern is at least roughly followed, public debate, elections, and legislative deliberations have little significance. Process comes first, substance follows.

  The judiciaries of the West are by no means alone in flouting the rule of law. Jury nullification – the refusal of jurors to be bound by either law or evidence when the results do not fit their personal views – is increasing and, in America at least, there is even a national organization devoted to justifying and encouraging jury lawlessness. That group urges prospective jurors to lie about their views and their willingness to follow the law during the jury selection process. Lawlessness is also built into the bureaucracies that modern intrusive and ubiquitous government requires. Bureaucracies lay down most of the law that governs us with minimal accountability to either the people or their elected representatives and with minimal concern for consistency.

  Perhaps a preference for immediate victories is part of the spirit of our times. No doubt to a large extent that is true. It seems unlikely that these developments could occur without public inertia and weariness with, even the active desire to abandon, the long-term safeguards and benefits of process for the short-time gratification of desires. That is always and everywhere the human temptation.

  But it is precisely that temptation that a constitution and its judicial spokesmen are supposed to protect us against. Constitutions speak for permanent values, and judges are supposed to give those values voice. Instead, national and international judiciaries
are, all too often and increasingly, exemplars of disrespect for the rule of law. Their example at the pinnacle of the legal system teaches a lesson of disrespect for process to all other actors in that system and to the public at large. A judiciary faithless to its duty teaches that winning outside the rules is legitimate and that political victory, in the legislature or in the courtroom, is the only virtue.

  Both in itself and in the example it sets, judicial activism undermines the foundations of Western democracies. Born in Europe, central to the American and the Canadian foundings, and fundamental to Western civilization, the ideal of the rule of law no longer commands much more than verbal allegiance. It has descended to the status of a phrase that judicial adversaries fling at one another. If we do not understand the worldwide corruption of the judicial function, we do not comprehend the full scope of the political revolution that is overtaking the West. The political revolution in Western nations is the gradual but unceasing replacement of government by elected officials with government by appointed judges. The areas of national life in Western nations now controlled by the judiciary were unthinkable not many years ago. What is now unthinkable may well become thinkable in the next half century.

  The political revolution brings with it a cultural revolution. In reading the opinions of many judges, it is apparent that they view their mission as preserving civilization from a barbarian majority motivated by bigotry, racism, xenophobia, irrational sexual morality, the desire to oppress women, and the like. The New Class heartily dislikes bourgeois culture. Hence, courts everywhere displace traditional moralities with cultural socialism.

  We are witnessing the growth of an international constitutional common law. It is international because national courts have begun to seek guidance from the decisions of the courts of other nations and because of the recent and rapid proliferation of international tribunals applying treaties, conventions, and what they choose to call customary international law. It is constitutional in that courts insist that their rulings control legislatures and that the legislatures obey. It is common law because the courts piece together, case by case, a fabric of law composed of New Class virtues. This new international constitutional common law is illegitimate in each of its aspects.

  Internationalism is illegitimate when courts decide to interpret their own constitutions with guidance from the decisions of foreign courts under their national constitutions. The American Constitution, for example, was framed and amended in the light of specific American history, culture, and aspirations. It has a meaning given to it not only by judicial decisions but by the practices of national and state governments. Why an American court should take guidance from the decisions of the courts of Jamaica, India, and Zimbabwe, reflecting the very different histories, cultures, aspirations, and practices of those countries, is not apparent. Nor is it apparent why the United States, Canada, the United Kingdom, or any other country should submit to the jurisdiction of international tribunals that will override the interests and desires of those nations.

  Activism renders illegitimate the claim of this international law to be constitutional. We have seen activism at work in the United States, Canada, Israel, Europe, and tribunals claiming worldwide jurisdiction. We submit to the authority of courts on the understanding that they are truly and accurately expressing the meaning of constitutions and treaties we have approved. When it becomes apparent, as it has over and over again, that the courts are not expressing the meaning of those documents but merely using the documents as launching pads for the reforms they prefer, the claim of constitutionality is revealed as fraudulent. So it is with much international law and its tribunals.

  Finally, the common law aspect resides in the fact that courts everywhere are making up the rules by which we are governed, even as the early English judges made up English law before Parliament became the dominant maker of policy. The difference, of course, is that it shortly came to be understood that Parliament could change or abolish the rules the common law judges had created. There is no mandate to be found anywhere in democratic theory for judges to make irreversible major policies when elected legislatures are in business.

  The problems created by activism are magnified as law seeps into the crannies of life. As Gertrude Himmelfarb has stated, “Today, in the absence of any firm sense of manners and morals, the law has become the only recognized authority. Just as the state often acts as a surrogate for the dysfunctional family, so the law is the surrogate for a dysfunctional culture and ethos.” One might add that the law invented by judges is a major cause of the dysfunction that it then undertakes to cure. “To all the other ‘diseases of democracy,’” she continues, “we may now add the mania for litigation. As the law has become more intrusive, so has the judiciary. … The law, we are discovering, is too serious a matter to be left to lawyers or even judges.” Our dilemma is that we have so far found no way to retrieve constitutional law from the exclusive control of judges and to restore it to democratic legitimacy. Such action would require that judges conform their rule to principles actually found within the constitutions they apply and, in turn, practice republican virtue. As Himmelfarb says, “Republican government means self-government – self-discipline, self-restraint, self-control, self-reliance – ‘republican virtue,’ in short.” Judicial coercion of New Class virtue is the antithesis of republican virtue.

  The liberal mindset refuses to recognize that real institutions can never even approximate ideal institutions. The pursuit of the ideal necessarily teaches an abstract, universalistic style of reasoning and legal argument. It leads to an incessant harping on rights (“rights talk,” as Mary Ann Glendon calls it) that impoverishes political and legal discourse, but it inflicts more damage than that. Rights become weapons in political, cultural, and legal struggles for moral superiority accompanied, of course, by the redistribution, in the claimants’ favor, of wealth and privilege. The advantages of special rights are obvious, and so the claims of rights proliferate. Given the power of rights rhetoric, there is no easy defense or resistance. The result is a clamorous public square, with groups pitted against one another and the consequent deterioration of the community’s fabric. One outcome is the further politicization of law, as courts decide which groups are to receive the rights and which must surrender portions of theirs. In that process, nothing resembling a rule of law can be discerned.

  Universalistic rhetoric, which is what rights talk is, teaches disrespect for the actual institutions of any nation, perhaps particularly democratic nations. The institutions of such nations are designed to allow compromise, to slow change, to dilute and tame absolutisms. Such institutions embody inconsistencies that are, on balance, wholesome. They are designed, in short, to do things, albeit messily and democratically, that abstract generalizations about the just society bring into contempt. Abstract ideals can never be realized in practice, but the search for cosmic justice continues and drives courts on, carrying them away from the only task they are even tolerably fit to perform.

  It may be that whenever the care of a constitution is given to judges, the outcomes described in this book are inevitable. Wherever there is judicial review, two forces are placed in opposition: the democratic principle of the elected branches of government and the anti-democratic principle of the judiciary. It seems not to have occurred to the designers of such arrangements that one or the other of these principles might in time gain ascendancy. But that is precisely what happened in the twentieth century, and the ascendent and aggressive principle is the anti-democratic one. The crucial question for all nations that desire to remain self-governing is how to tame and limit the anti-democratic aggressions of their judiciaries.

  BIBLIOGRAPHY

  INTRODUCTION

  Elliot, Jonathan. The Debates in the Several State Conventions on the Adoption of the Constitution (2nd ed., vol. 3). Philadelphia: J.B. Lippincott Company, 1907.

  Hutchins, Robert Maynard. Great Books, The Foundation of a Liberal Education. New York: Simon and Schuster, 1954.r />
  Hayek, Friedrick A. “The Intellectuals and Socialism.” 16 U. Chi. L. Rev. 417 (1949).

  Chesterton, Gilbert K. Heretics (12th ed.). New York: John Lane Company, 1919.

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  Berger, Peter. ed. The Limits of Social Cohesion. Boulder, Co.: Westview Press, 1998.

  Minogue, Kenneth. “The escape from serfdom.” The Times Literary Supplement, 14 January 2000, 11.

  Lockhart, Kamisar, Choper, Shiffrin and Fallon, Constitutional Rights and Liberties: Cases, Comments, Questions (8th ed.). St. Paul, Minn.: West, 1996.

  Levi, Edward H. An Introduction to Legal Reasoning. Chicago: University of Chicago Press, 1949.

  Himmelfarb, Gertrude. One Nation, Two Cultures. New York: Knopf, 1999.

  Devlin, Patrick. The Enforcement of Morals. London, New York: Oxford University Press, 1965.

  CHAPTER 1

  United States

  Board of County Commissioner v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting).

  Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: The Free Press, 1990.

  Kalven, Harry, Jr. The Negro and the First Amendment. Chicago: University of Chicago Press, 1966.

  Bork, Robert H. “Neutral Principles and Some First Amendment Problems.” 47 Ind. L.J. 1 (1971).

  Neuhaus, Richard John. The Naked Public Square: Religion and Democracy in America. Grand Rapids, Mich.: W.B. Eerdmans Pub. Co., 1984.

  Lasch, Christopher. The Revolt of the Elites and the Betrayal of Democracy. New York: W. W. Norton, 1995.

  Ely, John H. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980.