Hobbes v. Publius in International Law
allan.ides at LLS.EDU
Mon Oct 14 07:45:25 PDT 2002
As I understand what you say, and I could very well be missing the point, the US
is constitutionally bound by the law of nations, but the content of the law of
nations is what the US Congress says it is. Therefore assuming the UN charter
precludes "anticipatory preemptive attacks" upon a sovereign nation, but the US
Congress authorizes such attacks, then the law of nations permits the practice.
Is this what you're saying? If so, the flaw in the Constitution seems pretty
evident to me, i.e., unless we're talking about the Constitution of Oceana.
> The United States Constitution never envisaged a Hobbesian world order.
> Hobbes was viewed as a very clever, but pernicious philosopher by the
> drafters of the United States Constitution, who considered him an apologist
> for tyranny. The world is not (and certainly ought not to be) a Hobbesian
> place, in the eyes of the United States Constitution, which set out to
> "establish" both "Justice" and "Liberty" against tyranny and oppression.
> The drafters of the United States Constitution (rightly)took it for granted
> that the United States were and would be bound by international law, which (in
> common with all educated people of that era), they understood to be "the law
> of nature applied to nations". The federal structure of the U.S. Constitution
> strongly reflects contemporary conceptions of international law. (On which
> see the interesting volume by Nicholas and Peter Onuf.)
> The question for the framers (as for any enlightened person) is not whether
> the United States are bound by international law, but how to discover the
> content of the law that binds them, in the absence of any legitimate
> international legislature. The United States Constitution gives this power to
> the Congress of the United States in Article I, section 8: "The Congress shall
> have the power ... To define and punish ... Offenses against the Law of
> Nations." As no better or more democratic world legislature has emerged in
> the interim, this power still properly resides in the United States Congress,
> which is still more likely to define international law correctly than any
> other deliberative body. This is why under both the United States
> Constitution and under the simple rules of justice, the U.S. courts still
> defer to Congress about the content of international law.
> The U.S. Constitution is fundamentally sound both in recognizing the binding
> nature of international law, and in understanding how to determine the content
> of international law, through democratic and republican procedures.
> >===== Original Message From Discussion list for con law professors
> <CONLAWPROF at listserv.ucla.edu> =====
> >Sorry, one last point.
> >I agree with Eugene that our constitution does not require us to adhere
> >to international law. In the domestic sphere we follow the Lockean
> >principle of the rule of law (at least in theory). In the
> >international shere, it's a Hobbesean world. This may be the most
> >serious flaw in our constitution and one that warrants deeper
> >reflection and consideration.
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