It’s all happening in Dublin these days. In January, Michael Ignatieff gave the first annual Amnesty lecture in Trinity College - since published by The Dubliner magazine. Ignatieff tried to explain and in some sense justify American exceptionalism in matters multilateral, particularly the ‘judicial narcissism’ that prevents US judges from incorporating foreign jurisprudence and international legal norms.
Meanwhile, no less a personage than Antonin Scalia put the idea of judicial isolationism to the test only last Friday night, which he passed in the company of a horde of boisterous Dublin barristers.
Ignatieff rightly draws attention to the tendency of US courts to ignore foreign jurisprudence, calling it judicial narcissism. This trend led by Scalia can “effectively shut(s) off the US from a global legal conversation, one that is increasing in sophistication.” But Ignatieff’s real question is how can America’s “exemptionist, double standard, isolationist practices go hand in hand with the most active democracy and human rights promotion in the world”?
He answers in a realist mode, doing that classic lefty thing of bending over so far backwards to see the other side’s point of view as to become a human pretzel. America’s foreign policy is no different from other countries’, Ignatieff says, in that it primarily serves national interest. Europeans and Canadians serve their own national interests, but because they are weak or small their interest is better served by pursuing multilateralism.
Ignatieff sees a paradox when the US acts in support of multilateralism, by voluntarily limiting its potential range of action, e.g. Roosevelt’s support of the UN Charter and G.W. Bush’s engagement in pre-Iraq war debates at the UN (yes, really…). This paradox is explained by that tactic of last resort, the appeal to a cultural explanation. The underlying idea - rightly or wrongly - seems to be that as America invented democracy, Americans are primarily engaged in exporting democracy not importing it.
But as any Politics undergraduate who’s read Hobbes’ Leviathan can tell you, Ignatieff has left out an important part of the rationale behind multilateralism. Countries (or individuals, or corporations, etc.) hand over some sovereignty, i.e. volunteer to curtail their range of autonomy, not just to pool their power - though that’s very important. They also benefit directly from the curtailment of others’ activities, be they German militarisation, unlimited proliferation of nuclear weapons, the negative externalities of industrial pollution, and so on. Engaging in multilaterism is a genuine trade-off, in that countries make positive gains from their and others’ limitation of action.
Which is something that has been swept aside by the current US administration’s blind concentration on the limiting aspects of multilateralism in favour of the benefits of unilateralism. This is especially important as the immediate cost of unilateralism - in the human and financial cost to the US of the war in Iraq and in North Korea’s assumption of nuclear capability, for example - is only beginning to be obvious. In a world where unilateralism rules, and the US is badly stretched militarily, there is no incentive for other countries to hold back. The costs to the US and the rest of the world - or, more accurately, the gains foregone - of unilateralism will continue to pile up for a long time to come.
Anyway, poor old Justice Scalia’s experiences in Dublin last week speaks a little to the cheeky persistence of foreigners in pressing the claims of democracy. Apparently, one particular barrister - with possibly a few pints too many on board - gave Scalia a friendly thump on the shoulder and loudly asked him; ‘So you’re on the American Supreme Court? What’s all this craic about hanging chads?’
Another barrister cornered Scalia to discuss the difficulty of dealing with the Continuity IRA, suggesting we just round them all up and ship them out to >Rockall, an island of dubious ownership and governance, and let them rot there. Scalia was in warm agreement, though when the barrister got to the bit about the orange jump suits, the eminent judge muttered something about needing to find the cocktail sausages and shuffled off.
It reminds me of a story Chris Patten used to tell of going up to Henry Kissinger at a London reception a few years ago, placing a hand on his shoulder and saying, loudly, ‘citizen’s arrest’! Kissinger didn’t seem to get the joke either.
Is the final link supposed to work like that?
Whatever means countries use to influence each other through multilateral arrangements, it is not in the manner of establishing a central coercive authority on the manner of Hobbes’s Leviathan.
“This is especially important as the immediate cost of unilateralism - in the human and financial cost to the US of the war in Iraq and in North Korea’s assumption of nuclear capability, for example - is only beginning to be obvious.”
In what sense is the U.S. acting (or did act) unilaterally in terms of N. Korea? My impression is that the U.S. is the strongest force for the 6-power talks not turning into bilateral talks.
My guess is that the U.S. woul
Thanks Kevin - have fixed it now.
Andrew - sorry, I think you were posting your comment while I was re-building this post.
As to the “judicial narcissism” point, in what contexts do European courts incorporate US jurisprudence? And in what contexts do European courts recognize international legal norms to trump EU law?
The desirability of applying Hobbesian politics at the international level isn’t something that one should glibly take for granted.
And who’s the Leviathan??? The UN??
Tom T. - take a look at the summarised speech in the Dubliner linked to above. It describes how South Africa, the UK, Ireland and Germany formally reference and use foreign jurisprudence.
Since most of the right in America consider their government superior to foreign governments, the thought of incorporating foreign case law into US law is similar to the idea of adding a little bit of shit to your grandmother’s pie recipe.
The application of Hobbes is simply to illustrate how multilateralism and unilateralism each have costs and benefits.
Clearly, no one’s talking about appointing a new Leviathan. The binding web of negotiated multi-lateral agreements to mutually restrain harmful behaviour is far more acceptable ande effective. At least outside of the White House.
“The binding web of negotiated multi-lateral agreements to mutually restrain harmful behaviour is far more acceptable ande effective.”
On what do you base this assertion? Historical examples? A priori reasoning? Wish fulfillment?
“On what do you base this assertion? Historical examples? A priori reasoning? Wish fulfillment?”
It’s worked on the North American, European, and the past 2 decades the South American continents pretty well, I’d say, especially given these areas’ past histories, and especially compared to the other three continents, wouldn’t you say?
The article explains that courts in those countries do use foreign law, but I’m curious about the circumstances in which it’s done. May a UK plaintiff sue for the disestablishment of the C of E on the grounds that it violates US jurisprudence on the separation of church and state? Should the requirements of the US Americans With Disabilities Act be extended other countries, requiring the redesign of their theaters, restrooms, elevator codes, etc.? Alternatively, should a US corporation be permitted to resist disclosure demands from the SEC on the grounds that US disclosure requirements significantly exceed those of the rest of the world? Should a US corporation be permitted to resist a “hostile environment” sexual harassment claim on the grounds that US constitutional jurisprudence there is more stringent than that of other countries? Can an Irish plaintiff seek to overturn the smoking ban on the grounds that so few other nations ban barroom smoking?
Ignatieff suggests that Texas sodomy law is “eccentric” with respect to the international arena, but so is gay marriage; should Massachusetts’ law in that regard be overturned on the basis of international norms? Alternatively, should a Muslim in the UK be permitted to take several wives, on the grounds that polygamy is an accepted legal norm in the Muslim world?
1)Presumably the point of considering the judgements of foreign courts is not to copy their laws straight-off, but to seek second opinions on your own: it’s a bit like peer-review by scientists - a method of checking how reasonable your country’s laws are by comparison to others, not necessarily a replacement for domestic decision-making though.
2)It’s all very well pursuing unilateral policies when it’s your turn as hyperpower, but say a few years down the line the US loses that status to China or the EU? I’d love to Washington policy-makers on their knees in Brussels begging for multilateral decision-making. Unilateralism can only possibly work in the short-term, then the world comes back to bite you.
Someone wrote: I’d love to Washington policy-makers on their knees in Brussels begging for multilateral decision-making. Unilateralism can only possibly work in the short-term, then the world comes back to bite you.
That’s precisely backwards. The EU does and will welcome “multilateralism” when and only when it furthers their own interests.
One important area in which european courts will look to U.S. jurisprudence (and vice versa) is in the area of treaty interpretation. Right now I’m thinking in particular about the Warsaw Convention treaty addressing liability for damages arising in the course of international air travel, because it’s something I’ve had to deal with lately, but I’ve no doubt there are other examples.
“It’s worked on the North American, European, and the past 2 decades the South American continents pretty well, I’d say, especially given these areas’ past histories, and especially compared to the other three continents, wouldn’t you say?”
Which multilateral agreements are you thinking of?
I tried to find an account of Scalia’s Dublin experience on the web or in various databases, but no luck. Any leads appreciated.
I know that that 2nd barrister who buttonholed Fat Tony was being sarcastic and/or drunk. But “Continuity IRA” — doesn’t he mean “Real IRA”? Then again in Harry’s post a little while back on Conquest, it seemed that Conquest had the Real IRA confused with its Provisional ancestor.
“2)It’s all very well pursuing unilateral policies when it’s your turn as hyperpower, but say a few years down the line the US loses that status to China or the EU? I’d love to Washington policy-makers on their knees in Brussels begging for multilateral decision-making. Unilateralism can only possibly work in the short-term, then the world comes back to bite you.”
And what makes you think the converse won’t hold? Do you really expect China to be multi-lateralist if, 15 to 30 years down the road, it becomes a hyperpower to the American superpower ?
Ummm, I don’t know your source for the Scalia pubfest, but his “agreeing warmly” that a nation could just detain its own citizens without due process doesn’t sound like his position at all. See his dissent in Hamdi v. Rumsfeld where he argues citizens must be tried in ordinary courts. His dissent in Rasul applied to aliens detained at Guantanomo, not citizens.
Yes, I can imagine Patten telling that story, moral superiority oozing from every chin. I’ll try the same jape on Patten some time, given that from 1987 he was Minister of State at the Foreign Office when British foreign policy included sending the SAS to teach civilian-killing mine-laying techniques to Cambodia’s ‘Non-Communist Resistance’ (read- allies of the Khmer Rouge).
Of course, nobody knows any Irish history nowadays, but I do wish someone had told the Irish lawyer making jokes about internment that from 1921 until 1962, such Great Irish Statesmen as Michael Collins, Kevin O’Higgins, Eamon de Valera and Sean Lemass all imprisoned large numbers of IRA suspects, without trial. Collins and O’Higgins were also keen on executions without trial, torture and reprisals. The Irish state, or states, of the twentieth century was utterly ruthless - at least as much as the Bush administration- when it thought that the IRA posed a threat to it. When the IRA had the decency to indicate that its job was to kill Brits and Ulster Prods, policing in places like Dundalk became famously relaxed.
I fully expect Henry Farrell (another man with an admirable collection of chins) to show up and denounce me as a British nationalist for, er, criticising my own country. Still, I personally am a little bored by posts by British and Irish citizens banging on about the anti-democratic sins of the Americans while failing to look at the state of democracy in their own countries.
Both the British and Irish governments are going, on past form, to take no serious action against a political party which has obvious ‘links’ (ie is joined at the hip) to an ultra-violent, heavily-armed private army which has lately developed a renewed interest in bank robbery, mutilation, etc. Nor, speaking as a left-liberal, is there much evidence that left-liberal opinion either in the UK or the Republic is really all that bothered about what is happening in Northern Ireland (Henry McDonald of the Observer is a star, but he’s pretty much alone)- and there’s damn all sign of concern on Crooked Timber.
What the Bush Administration has done to the rule of law in the US is indeed shameful. But take a look at the state of democracy ‘in these islands’, and we now seem to tolerate negociation-by-armed-threat, and political fundraising by bank robbery. Still, why get worried about democracy and the rule of law in our own countries when we can point fingers at a bunch of foreigners?
But as any Politics undergraduate who’s read Hobbes’ Leviathan can tell you, Ignatieff has left out an important part of the rationale behind multilateralism. Countries (or individuals, or corporations, etc.) hand over some sovereignty, i.e. volunteer to curtail their range of autonomy, not just to pool their power - though that’s very important. They also benefit directly from the curtailment of others’ activities, be they German militarisation, unlimited proliferation of nuclear weapons, the negative externalities of industrial pollution, and so on. Engaging in multilaterism is a genuine trade-off, in that countries make positive gains from their and others’ limitation of action.
I actually agree with this, and believe that it explains perfectly why I am very disenchanted with multilateral action on security issues. Multilateral institutions have thus far been awful at dealing with nuclear proliferation and places like Iraq (1990), North Korea (1991, 1994, present) and Iran (present). Therefore Americans feel like they are giving things up AND not getting the promised return from them.
The unilateralism of the Bush administration is to be expected of the headless incompetents in D.C. It is a surface phenomenon. In reality, we already have multilateralism — it is called a trade deficit. And, as the Bushies piss away another borrowed trillion trying to shunt social security money to favored investment traders, they simply create another chain to yank — and eventually, the Asian central banks will yank it. Remember Friedman’s Golden Straightjacket —the cynical idea that Globalization takes economic policy out of the hands of the governments of developing countries? Well, the U.S., the mentally retarded imperial power, is eventually going to feel it, instead of enforcing that feeling on others. It isn’t a hyperpower, it is a spree power. With intellectuals such as Ignatieff operating as professional enablers.
“and there’s damn all sign of concern on Crooked Timber.”
Dan, this is way off the mark, as a quick search would have shown you. Here’s one from me, mentioning the IRA and FARC, and Henry, Maria and Kieran have all, not surprisingly, had more to say than me.
The US Supreme Court does make frequent use of foreign law as long as it predates the founding of the country. Roe v Wade made use of both English Common Law and ancient Greek law. SCOTUS is much more hesitant to make use of more recent foreign precedence. Partially this may be due to public opinion. More realistically it is likely due to the fact that, barring a ratified treaty, foreign law has no legal standing in the US. The US Constitution clearly spells out sources for the creation of laws: Congress, Supreme Court ruling (not creating) and Ratified Treaty.
Actually, Sandra Day O’Connor has spoken about the growing need to, at very least, acknowledge foreign judgements when assessing ‘evolving standards of decency’ w/r/t the death penalty.
Scalia’s something of an outlyer in his absolutist talk of foreign precedent as ‘dangerous dicta’.
Not to beat a dead horse, but what’s the basis for this account of Scalia’s remarks? Thanks in advance for any tips.
P.S. Not sure if the hyperlink for Rockall was indeed fixed, unless it was meant to be ironic.
Andrew Boucher,
You asked me “Do you really expect China to be multi-lateralist if, 15 to 30 years down the road, it becomes a hyperpower to the American superpower ?”,
to which I feel the answer is no - my point was using the present situation of US dominance & arrogance as an example. If China and/or other states achieve a similar level of economic & military power, I’m not sure they’d pursue multilateralism either, and just as with the US, I doubt this will prove to be of long-term advantage.
Right now humanity faces two large challenges (okay so you’re not all going to agree with these but so what…) - the ‘war’ on terrorism and global warming - and it appears that neither are solvable unilaterally, and both are more-or-less global in effect. Cooperating over these issues is urgent, but hyperpower arrogance is clearly a hinderance to any sensible debate and action from occuring.
I fully expect Henry Farrell (another man with an admirable collection of chins) to show up and denounce me as a British nationalist for, er, criticising my own country.
i imagine henry’s response would depend on how many chins you have, this apparently being an important criteria.
I fully expect Henry Farrell (another man with an admirable collection of chins) to show up and denounce me as a British nationalist for, er, criticising my own country.
i imagine henry’s response would depend on how many chins you have, this apparently being an important criteria.
also, how many times my stoopid comment shows up on this page.
John, the FARC thing was a helluva long time ago, and the fact is that there was a two month delay between the December bank robbery and the first CT comment (today, by Henry). But now that the sinners have repented, I am a happy man….
The article explains that courts in those countries do use foreign law, but I’m curious about the circumstances in which it’s done
It’s not a matter of applying other countries laws, but of applying their reasoning in similar situations. For example, in NZ, judicial decisions on aboriginal title and common-law property rights have been heavily influenced by decisions from foreign jurisdictions (including the US Supreme Court) right from the start, and despite an evolving native jurisprudence, decisions are still peppered with references to cases from Australia, Nigeria, India, and Canada. And on immigration law, we have recently had a ruling in the Ahmed Zaoui case that the importation of the UN Refugee Convention into NZ law means that the international jurisprudence surrounding decisions has also been imported (which vastly increases the attention that must be paid to the human rights of refugees). The case is currently before our Supreme Court, but IIRC, that part isn’t being considered.
In essence, it is about recognising that your problems are not unique, and that other people who have faced similar ones may have some light to shed on the subject. And the only reason I can think of for rejecting this is arrogance.
Clyde - do you have an email address I can use? If so, please send it to maria dot farrell at gmail dot com.
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