Law

(Those who don’t know about Bristol’s most famous “artist” can google for “Banksy” or check the Wikipedia.)

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Eugene Volokh and a correspondent discuss Max Weber’s views on the state and legitimate violence, and between them make a common error:

I was corresponding with a friend of mine — a very smart fellow, and a lawyer and a journalist — about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I’ve heard it in gun control debates before: “Forgive me, but I’m old-fashioned. I like the idea of the state having a monopoly on the use of force.”

I want to claim that this echo of Weber (who said “Today … we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory”) is utterly inapt in gun control debates, at least such debates in a Western country.

He goes on to give a string of alleged counterexamples: “Every jurisdiction in America has always recognized individuals’ right to use not just force but deadly force in defending life … Use of deadly force for self-defense has always been allowed in public places as well as in private places … many non-state organizations even maintain private armed staff — armed security guards …” The examples actually make Weber’s point. Weber said that a distinguishing feature of the modern state is that it “claims the monopoly of the legitimate use of physical force within a given territory … the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state is considered the sole source of the ‘right’ to use violence.”

It’s the legitimacy point that’s key. The state claims the right to regulate who can and cannot do things like own weapons, shoot people, run some kind of armed organization or what have you, and under what circumstances and with what restrictions. Which is precisely what Volokh’s examples show: jurisdictions _allow_, laws _recognize_, and so on. It is this legitimacy claim that is behind the state’s labeling certain groups as terrorists, for example. Volokh goes on to say that his “point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.” Weber won’t resolve any detailed policy questions in that department, though his definition does make it clear that in a modern state the private ownership of weapons is something the state will certainly claim the right to regulate.

_Update_: To clarify, as I wrote this in a bit of a rush: (1) Volokh’s counterexamples rebut effectively the idea that the state has a monopoly on the commision of violent acts (especially armed violence). (2) This is not what Weber meant by “monopoly on legitimate force.” (3) It seems to be what his correspondent thought Weber meant, however, and so (4) Between them they end up propagating a common error about Weber, though it’s not Volokh’s intent to discuss Weber’s ideas specifically. I’ve changed the title of the post to forestall misinterpretation.

I’m working up a longer post on this important subject. But, in the face of a certain natural skepticism, expressed in comments to my previous post, I have decided to seed discussion with a pair of frames from All Star Comics #24 (Spring, 1945):

If you happen to be at a scholarly institution with access to All Star Comics archives, vol. 6 [amazon], you can consult the original. Otherwise, you can wait for my update.

TONIGHT: Wildcat explains five fifteen centuries of German perfidy.

The Wall Street Journal has a confusing (to me) “editorial”:http://www.opinionjournal.com/editorial/feature.html?id=110009742 about the attempt by the Italian courts to prosecute CIA agents involved in “extraordinary rendition”. Here’s what is supposed to have happened:

bq. Nasr, a radical imam also known as Abu Omar, is a terrorist suspect who had been under Italian police surveillance since 9/11. In the covert operation that took place in February 2003, Italians and Americans worked together to apprehend Nasr, before whisking him back to Egypt against his will and without the permission of an Italian court.

(Nice use of the word “whisking”, that. Next time I’m charged with kidnapping I’ll tell the police that I was just planning to whisk my victim from A to B.)

The conduct of the Italian courts is deeply wrong according to the WSJ:

bq. No one seriously claims, however, that the CIA agents were in Italy without the explicit knowledge and participation of Italy’s security services. This is the crucial point — and explains why the indictments are a hostile act against the U.S. By long-established international legal practice, the official agents of one country operating in another with that state’s permission are immune from prosecution. The status of forces agreement that governs U.S. troops stationed in Italy enshrines this principle at least for official conduct.

We might pause to note the last five words of that paragraph and wonder whether the “whisking” constituted “official conduct”. It is also worth noting the slippage between “explicit knowledge and participation of Italy’s security services” and “operating … with that state’s permission”. Would the Wall Street Journal really contend that all and any acts (kidnappings? assassinations?) performed by foreign agents on US soil with the “knowledge and participation” of US government agencies (such as the CIA, or its operatives) should be taken to be acts carried out with the permission of the US government? Would they want to say that the perpetrators of such acts should be immune from prosecution in American courts? I rather doubt it.

OpenDemocracy has a “very good article by Martin Shaw”:http://www.opendemocracy.net/globalization-institutions_government/icj_bosnia_serbia_4392.jsp on the recent International Court of Justice decision that found that the charge of genocide against Serbia in relation to the Bosnian was not established, a finding that has been seized upon by Milosevic apologists everywhere. As Shaw points out, the court did find that members of a protected group were systematically killed, raped and abused, and did decide that the Srebrenica massacre was genocide. Perversely, though it also found that it had not “been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such.” Also whilst conceding the involvement of the regular Yugoslav forces with the Bosnian Serb perpetrators of the pre-Srebrenica (and therefore not-genocidal) operations, the court limits their responsibility for the massacre that they are forced to characterize as genocide principally to that of mere omission. A feeble verdict.

For many of us, the hope has been that as same-sex marriage gains a foothold, it will seem less threatening and scary – more normal – to many people and opposition will temper. A data point from Canada:

Yesterday, the Canadian House of Commons voted to uphold same-sex marriage. According to the Global and Mail, “Prime Minister Stephen Harper has declared the contentious issue of same-sex marriage to be permanently closed…. The vote yesterday, which fulfilled a Conservative election promise, marked the sixth time since 2003 that the House of Commons has decided in favour of same-sex marriage.”

But what was striking to me was that opponents of same-sex marriage seemed simply to be going through the motions. According to the Washington Post: “The prime minister expended little visible effort to try to win the vote, and political commentators suggested that he simply wanted to put the issue behind him before another national election was called.”

In her 2002 Locke Lectures, Christine Korsgaard suggests readings of Plato and of Kant that try to make sense of the relationship between “inward justice” and “outward justice”. She asks, for example, “What is the relationship between maintaining unity in your soul, and doing things like telling the truth, keeping your promises, and respecting rights?” In the course of exploring the connection, she observes, “It’s hard to have a free press and lie to the world.” Her point is not limited to freedom of the press. Rather, she thinks that it is hard to have a democratic society that engages in free public deliberation if it lies to the world.

In its recent effort to prevent victims of “alternative interrogation methods” from telling even their own lawyers – let alone the general public – what they endured, the Bush administration seems to agree with Korsgaard.

Actually, they offered two defenses of the prohibition. First:

“Many terrorist operatives are specifically trained in counter-interrogation techniques,” says a declaration by Marilyn A. Dorn, an official at the National Clandestine Service, a part of the C.IA. “If specific alternative techniques were disclosed, it would permit terrorist organizations to adapt their training to counter the tactics that C.I.A. can employ in interrogations.”

It’s hard to take this seriously. What do they imagine they’ll do – practice holding their breath while being waterboarded dunked in water?

Here’s the other defense:

revealing the countries where the prisoners were held could undermine intelligence relationships with those governments. Such disclosures “would put our allies at risk of terrorist retaliation and betray relationships that are built on trust and are vital to our efforts against terrorism,” Ms. Dorn wrote.

The connection seems plausible – only the conclusion is absurd. We need to undermine the rule of law at home so that we can continue to lie to our allies. Not exactly what Korsgaard had in mind, I think. As a lawyer for several Guantanamo detainees observed, the prisoners “can’t even say what our government did to these guys to elicit the statements that are the basis for them being held. Kafka-esque doesn’t do it justice. This is ‘Alice in Wonderland.’”

While we’re linking to blogs that focus on the economic aspects of life, here is a plug for Credit Slips, a group blog focusing on “all things about credit and bankruptcy”. Not only does this blog have a great list of contributors, but they also bring in some star guests.

This week, Viviana Zelizer from Princeton’s Sociology Department has been guest blogging on topics ranging from the importance of personal ties in economic transactions to economic exchange across generations in families, the gendered aspects of spending and the intersection of economic transactions and intimate relations. (The latter is also the topic of her most recent book on The Purchase of Intimacy). She is great at talking about these issues so I highly recommend checking out her posts.

Full disclosure, Viviana was one of my mentors in graduate school. However, I think that makes me particularly qualified to comment on how helpful her work is in understanding questions about how social relations and cultural context influence economic processes. Be sure not to miss out on this treat.

When Bill Clinton signed the (offensively-named) Federal Defense of Marriage Act in 1996, the looming issue was the possibility that the Hawaiian Supreme Court would legalize same-sex marriage. (In 1993, the court ruled that the state needed to show a compelling interest in order to prohibit same-sex marriage.) Since the Constitution requires that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” it seemed that same-sex marriages recognized by one state would have to be recognized by the others. The Act explicitly exempted states from such a requirement. As I remember it, this was the focus of the debate.

But the Act has another implication that I don’t remember being discussed very much. It denies benefits to legally recognized same-sex spouses of federal employees. (There are currently around 1.9 [oops: million, of course] federal civil servants. I don’t know whether this prohibition applies to the additional 10.5 million individuals who are government-funded contractors or grantees.) This includes former members of Congress:

The federal government has refused to pay death benefits to the spouse of the late Gerry Studds, the first openly gay member of Congress.

Studds married Dean Hara in 2004 after gay marriage was legalized in Massachusetts. But Hara will not be eligible for any of Studds’ estimated $114,337 annual pension because the 1996 Defense of Marriage Act bars the federal government from recognizing the couple’s marriage.

Meanwhile, in somewhat related news, Eliot Spitzer (who is leading John Faso by a 3-1 margin in the race for NY governor) says that he will introduce legislation legalizing same-sex marriage in NY.

I was reading a paper by Samuel Freeman the other day and came across a passage that I found arresting. I found it arresting because it asserted propositions that looked false to me. But Freeman is a very smart guy (and a very distinguished Rawls scholar) and I rather suspect that the points he’s alluding to are symptomatic of some very deep differences in philosophical opinion. They’re also of interest because Freeman’s denial that a state’s control of its territory is akin to property ranges him against both those who are more egalitarian than he is (Pogge and Tan in the passage quoted, but also those like Philippe Van Parijs who claim the existence of borders is sufficient to establish that there is a global basic structure) and Lockean libertarians. I reproduce the passage below together with some (possibly inept) reactions from me.

bq. The one significant practice or norm Rawls’s critics allude to which might at first appearance be regarded as a basic global institution is peoples’ recognition that nations have “ownership” or control of the land and natural resources in the territories they occupy. Pogge, K. C. Tan, and others see this example as justifying a need for a global distribution principle to regulate this practice, and decide how global resources are to be distributed. But it is a mistake to regard this norm as a basic institution, on a par with the institution of property. For control and jurisdiction over a territory by a people is sui generis: it is the condition of the possibility of the existence of a people and their exercising political jurisdiction. As such it is not a kind of property; for among other reasons, it does not have the incidences of property: it is not legally specified and enforced, nor is it alienable or exchangeable, but is held in trust in perpetuity for the benefit of a people. But more importantly, rather than being a kind of property, a people’s control of territory provides the necessary framework for the legal institution of property and other basic social institutions. Finally, peoples can and have controlled territories without norms of cooperation or even recognition by other peoples at all. Indeed this has been true of many countries for most of history; they have existed in a Hobbesian state of war. The point is not that there is anything just about this situation – on the contrary, it has been sustained by aggression and injustice for most of history – but that, unlike property and other basic social institutions, a people’s control of a territory is not cooperative or in any way institutional. It is then misleading to call a people’s control of a territory and recognition of others’ boundaries “property,” a “basic institution,” or part of a “global basic structure,” simply in hopes of showing an inconsistency in Rawls and smuggling in a global principle of distributive justice. (Samuel Freeman, “Distributive Justice and _The Law of Peoples_”, in Rex Martin and David A. Reidy (eds) “Rawls’s Law of People’s: A Realistic Utopia”:http://www.amazon.com/exec/obidos/asin/1405135301/junius-20 (Oxford: Blackwell, 2006).)

The following points strike me as relevant:

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Via “Billmon”:http://billmon.org/archives/002661.html , I see that the Bush administration “is now proposing amendments”:http://www.washingtonpost.com/wp-dyn/content/article/2006/08/08/AR2006080801276.html to the War Crimes Act in order to protect CIA operatives and former military personnel from prosecution for violation of Common Article 3 of the Geneva Conventions. The proposal is to replace general protections against degrading treatment with a list of specific offences. Guess what gets excluded:

bq. … humiliations, degrading treatment and other acts specifically deemed as “outrages” by the international tribunal prosecuting war crimes in the former Yugoslavia — such as placing prisoners in “inappropriate conditions of confinement,” forcing them to urinate or defecate in their clothes, and merely threatening prisoners with “physical, mental, or sexual violence” — would not be among the listed U.S. crimes, officials said.

Following on from last week’s post on Hezbollah’s War Crimes, it would seem appropriate to follow up with a discussion of the actions of the state of Israel with respect to the Geneva Conventions. Human Rights Watch has an excellent and thoroughly-researched report on the subject of whether the civilian casualties in Lebanon have been the result of collateral damage to legitimate military actions, or whether there have been instances of illegitimate, intentional or excessive violence against civilians. It concludes that there is certainly a case to answer. There is also the issue of whether the war crime of “reprisals” has been committed – the carrying out of acts of violence against civilians in order to put pressure on their government to carry out some desired course of action, which is of course called “terrorism” when non-state actors do it.

I had prepared a post on this subject, but the Human Rights Watch report is so much more thorough that I think it’s better to base discussion on that (by the way, the comments on the Hezbollah war crimes post were very civilised and intelligent, let’s repeat that). My summary of the report’s conclusions would be that the proposition that the IDF “takes the utmost care to minimise civilian casualties” has been falsified to a high degree of certainty, and even the weaker claim that the IDF does not intentionally target civilians looks a lot less certain than one would previously have believed. The attacks on infrastructure such as the LibanLait dairy look not at all like legitimate attempts to shut down Hezbollah and very much like attempts to intimidate the Lebanese population; unless we are prepared to postulate a truly colossal series of blunders, it looks very bad indeed.

Israel has in the past been able to maintain, with some justification, that there can be no “moral equivalence” between its actions and those of the terrorists; an important point when the physical effects of the IDF’s actions have been so many more deaths than the physical effects of terrorism. Whatever the jus ad bellum, this issue of jus in bello matters a lot, and speculation about the long term genocidal aims of the President of Iran simply cannot justify war crimes now. The gradual disintegration of the clear distinctions between the conduct in war of Israel and that of its enemies, which are very important in maintaining Israel’s international diplomatic reputation, ought to worry the Israeli government a lot more than it apparently does.

Not so much in the interests of spurious balance, but because it provides a way to deal with a number of general issues of international law in a more neutral framework, I thought I’d consider what war crimes have been committed by Hezbollah in the course of the present conflict. I am not an international lawyer, though I have had reasonable luck in the past arguing points of international law on the Internet. I am leaving comments enabled for the time being, though I would like all commenters to respect the principle that the blame game is not zero sum, and in specific application to this case, the fact that one side is committing war crimes does not absolve the other side from their obligation to obey the law.

Throughout this post, I am assuming that Hezbollah can be considered as a separate military entity and that its troops are being judged according to the law of war rather than as civilian criminals (or for that matter, as “illegal combatants”). I think that this is fair enough; the Geneva Conventions are rather vague on what constitutes a legitimate military entity, but my opinion is that if state sponsorship was a necessary condition this would have been explicitly stated and it seems to me that it would be hard to argue that Hezbollah are not guerillas under Protocol I. Although the Conventions seem to mainly be considering cases of civil war rather than cross-border aggression by parastates I personally believe that they apply. More under the fold.
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Radley Balko’s study of the increase in paramilitary police raids by SWAT teams “is now available”:http://www.cato.org/pub_display.php?pub_id=6476 from Cato. They’ve also produced a “map of botched raids”:http://www.cato.org/raidmap/, using Google Maps, to show the distribution of raids that involved some kind of serious error. I’d like to see a table of that data as well (or, because I’m greedy, the whose dataset). There are a lot of things one could do with the data beyond just plotting the incidents on a map, though this is certainly an effective way to draw attention to the issue. The “monograph itself”:http://www.cato.org/pubs/wtpapers/balko_whitepaper_2006.pdf contains summaries of a large number of the botched raids. The rise of paramilitary policing is a serious problem in itself — just on the very narrow grounds that mistakes are common — but is also clearly bound up with larger questions of criminal justice policy in the United States, and America’s “astonishingly high”:https://crookedtimber.org/2006/05/26/incarceration-again/ rate of incarceration.