What is a law anyway –2

Last time I wrote about legal theory- how to recognise a valid law.

Just in case you thought it was a strange theoretical question, only last week a United Nations official has been criticising the current "intervention" in Aboriginal communities in northern Australia as illegal- he says its discriminatory and against international law. What he will do about it is unclear but a Queensland Shire council wants to use his finding in their case to renew an Aboriginal community’s tavern’s liquor license.

And this week ex Vice President Cheney has been criticising a probe into whether the CIA used torture in interrogating people as being ‘political’ because he says its directed to see whether President Bush authorised it. But the probe is designed to find whether the CIA breached human right standards.

Now neither of these fit into the two models of laws I have written about so far.

First of all the intervention. Taking the first model- what the sovereign commands is law: Australia is a nation- Australia’s parliament is (under the constitution) sovereign so whatever Parliament says is law is indeed law (subject to constitutional challenges) .So in turn whatever the United Nations has to say shouldn’t affect us. Its just not law. Taking the second model –law is what officials recognise as law: Australian officials recognise the Parliament has made laws for the Aboriginal communities and act accordingly. Indeed it’s the very actions that are being criticised as illegal-as against international law..

Now look at the CIA actions. Likewise the USA is a nation- its constitution is a bit more complicated because of the differing functions of the President and the Congress but at least to do with the CIA we can say that whatever the "Executive" (the President) says is law providing it complies with prior Acts of Congress is law. Taking the second model again , one of the main purposes (And the purpose Mr Cheney was complaining about) of the enquiry is to see whether the CIA officials recognised the President’s orders and tortured the prisoners Under both these models its only if the CIA staff tortured the prisoners on their own initiative or if what they did was contrary to a law passed by Congress would they be liable. If the President (or someone like Mr Cheney) ordered the torture, then the president or Mr Cheney would be liable.

But that’s not the case, that is not how law in fact works. And the best example of this is ‘war crimes.’ Whether it be the Nuremburg trials of Nazis after world war two, or whether it be the current trials in The Hague concerning the former Yugoslavia the law appeals to something external. Whether the German law authorised the killing of the disabled, Freemasons, Gypsies, Jews or whether President Miloslevic authorised the paramilitary groups in Bosnia to do what they did, someone – is saying it was legally wrong.

And so whoever it is who is accused – General Jodl at Nuremburg in 1946 or Ramush Haradinaj at the Hague last week, - is standing trial with prosectors and defence lawyers, rules of evidence, examination of witnesses and in short the whole system we know as ‘criminal justice.’

But it cannot be criminal justice if law is what the sovereign commands. At the time the acts were committed what passed for law in Germany, and (probably)in Bosnia allowed all the acts. Nor can it be justice if law is directed to officials and the test for law is what the officials recognise as law- because in Germany at the time the acts were committed the officials recognised the Nazi laws (it might be a bit harder to say that about Bosnia- if only because there don’t seem to have been many officials left apart from the armies and paramilitaries).

So to be able to bring war criminals to trial there has to be an appeal to something outside the normal legal system-some underlying principle of right and wrong. And here is where the proposed Victorian laws I wrote about last time has it the wrong way round. Those people are trying to make the law make moral decisions. Its really morality that makes the law.

So that because we humans recognise that killing people because of their religion or race or killing handicapped people is wrong we have laws that say that that is wrong.

Next fortnight I shall give some more examples of how morality has made the law and then try to draw some conclusions from all of this.
Links
ABC news reporting the UN’s finding http://www.abc.net.au/news/stories/2009/08/27/2668915.htm?site=news
ABC news reporting Arakun shire council’s appeal http://www.abc.net.au/news/stories/2009/08/31/2671913.htm?site=news
ABC news reporting Cheney’s comments (also note that Sen McCain says torture gets you nowhere and is a bad policy) http://www.abc.net.au/news/stories/2009/08/31/2671247.htm
The Bosnian War Crimes Tribunal http://www.icty.org/