For those of us paid to stand at the front of rooms to lecture on the international system and ‘security studies’ (broadly defined), one of the classic little intractables is state power vs the law. One of the things that separates ‘us’ from ‘them’ is, of course, adherence to the rule of law. Everyone is taught this, from school age up in the UK. And yet, the behaviour of states tells us that international law is a flexible and, er, pragmatic device…
Richard Aldrich, in his chapter in Mike Goodman and my book ‘Spinning Intelligence’ referred to what he describes (in the intelligence realm) as ‘regulation by revelation’ – in short splashes by media outlets, NGOs and even bloggers releasing information into the public realm to hold agencies and governments to account. Whilst he obviously couldn’t discuss the assassination in Dubai – the outpouring of information, video footage and reportage would fit his description perfectly.
Domestic courts also provide another forum through which governmental sovereignty – in this case the freedom to act – can be seen to be circumscribed. A good example of this emerged this week with the two small campaign groups – Campaign Against Arms Trade, and The Corner House (which is almost literally the only thing in Sturminster Newton in Dorset) securing yet another victory in the courts, this time against the British government. They won an injunction against the SFO, which now prevents the British government from any further negotiations with BAE over financial settlements they have tried to reach to avoid further investigations into the conduct of foreign trade arrangements, and any potential prosecutions that might fall out of these investigations. The British government has been keen to bring these issues to a close, to allow its principle engineering firm and defence manufacturer to move on, but the anti-arms trade campaigners have developed this legal route as an increasingly effective means to circumscribe government action.
So, do these marginal incidents amount to a curtailment of state power? I’d argue not. They generate some heat of publicity, some attention onto aspects of governmental practice, and only at the extreme ends – in a case like Arar in Canada – does it produce change. What might be more interesting, is to consider the growth of transnational single issue groups, and the developments of their tactics.
{ 21 comments… read them below or add one }
While interesting, I think there are more important systemic limits to state power. For example, I can’t think of a single political system that has managed to eradicate informal economic practises. If governments must come to a detente with their populations over the basics of paying for the functions of government itself, then surely that is a greater constriction on state power than more visible restrictions in the courts?
There are, of course. This was merely my way of crow-barring in the CAAT-Cornerhouse SFO ruling, with a wider interest point.
But your point about systemic curtailments is an interesting one; on what it suggests for now – does a global down-turn mean the curtailment of the power of western states, but also for what it implies about your view of states … not a glowing reference implied in your post!
In more “normal” times I might agree, but in this current environment of profligate deficit spending in the trillions (and perhaps even the next level of monetary abstraction), I am not so sure such an economic constraint has much practical force, at least until the next national election.
I wonder whether “curtailments” and “restrictions” of state power have to be instantly visible in order to be recognized as such? Wouldn’t a mid-/long term focus be more suitable to distinguish between actual or mere cosmetic “change”?
Yes. And to some degree that will only become clear in five-ten years time when the rendition stuff has played out, and we have further examples like the one I have referenced above.
States do what they want – quite rightly so. Academics are largely fantasists. Get a grip you idiots – people r unfortunately nasty. Strategists look 4 means 2 ends.
They are called academics for a reason, they studied the world for quite some time to get where they are.
You seem to have interpreted the site’s guidelines of ‘be sensible, be polite’ as be pointlessly rude. Being pointlessly rude has the effect of reducing anyone’s enthusiasm to deal with you.
No-one denies that people are nasty. Isn’t that the point of the post? The tensions between those wishing freedom to do what others may consider to be nasty, and the developments springing up to curtail it. Or is that yet more idiocy?
In my opinion it’s essentially the same thing as so-called ‘tribal law’. There are areas set down by precedent and understanding where an authority figure does not go, not because they are physically incapable of doing so but because their norms discourage them from doing so. Of course, just as with formal nation-states, there are ways to circumvent this.
In such cases I’d be minded to use the phrase “customary law” for legal systems that are separate from the state. The use of the word “tribal” implies the presence of a tribe, and in many cases (for instance, Afghanistan) that might not be the best way of analysing the system of customary practise and body of law that results. In many cases it is not so much that norms discourage state involvement, but many “predatory” states see no point in exercising authority over hinterland regions full of subsistence farmers (particularly when there are money spinning resources elsewhere that they could be involved in nabbing).
Rob, I think my point has more to do with “base-line” sovereignty limits on state power, whereas yours is more to do with “inherent” or “definitional” limits of democratic states (I couldn’t see Putin or Medvedev allowing the courts to curtail their arms industries!) In my view there are three primary limits to state power, that of world order (the system of territorial sovereign states who might gang up on a state if it causes too many problems), self-defined (how a state perceives itself) and base-line (what a population will allow a state to get away with).
Personally, regarding the economic downturn, I’m watching Greece. If the population turns against the government reforms to the extent that the government cannot pass them, even though pretty much everybody on the planet (bar a few Marxists) knows that the government has to pass the cuts in order to save the economy and the country, then it will be quite some rollercoaster ride for Greece (that probably ends outside the Eurozone).
I find it interesting that thus far there has not even been a passing mention of “constitution” as a check on governmental power. I realize this is a UK-oriented forum but at least from an American’s perspective, a great concern is the extent to which our Constitution is being ignored, subverted or interpreted in this debate. A recent example and one that has drawn precious little attention in our press (increasingly the unofficial propaganda organ of our federal government), is the continuation (and even expansion) of the ominously named Patriot Act, something quite ironic and telling given its markedly different response under the previous administration regarding the same law.
Personally, I’d file the constitution under “definitional limits” in my taxonomy. After all, it is rather difficult to have a constitutional democracy without one!
Fair point but I personally assign it more substantive value than “definitional” although I realize this is getting a bit circular! I think that is part of the larger problem presented by the rather jaundiced and anemic view of the Constitution among many post-modern/progressive observers, many of whom relegate it to a mere amorphous conglomeration of antiquated provisions that need to be continually redefined to suit the current political climate. It is becoming increasingly rare (largely due to the revisionist history being taught in US primary and secondary schools) for there to be even a discussion, much less understanding, of the reasons and context of the provisions of the Constitution that makes many of them immutable as the necessary hedge against the proven penchant of humankind to pervert social and governmental systems to their own selfish ends. Not surprisingly, we are now seeing the results in terms of a federal system that is being turned on its head with centralized power being the default position and increasing dependence of the citizenry on the (federal) state for all things. Mere definitions without context are the tools of despots as George Orwell poignantly showed us.
I suppose we do differ, since I don’t consider constitutional provisions to be immutable. I think constitutions and political orders are reflective of society, and therefore (though I was quite appalled at it myself) I understand the Patriot Act as a reflection of the majority of social will in America at the time (with considerable dissenting views). I find it quite interesting that America propagates “strong” government across the world as a means to an end (“stability”) while its own citizens decry centralised government from coast to coast. From a personal perspective, I think half the problems Europeans have in understanding America comes from the fact that we are only ever exposed to the east coast and hollywood (with the possible exception of Chicago). I understood the American “states’ rights” mentality a whole lot more once I had been through places like Cleveland, Detroit, Tulsa and the mid-west, which don’t fit into the progressive-north, backwards-south dichotomy that gets fed to us outside observers. In many ways, I think that similarities can be drawn between the isolationism inherent in some US anti-federal positions and the similar positions drawn up by European states that haven’t quite accepted their position as part of the EU. I suppose given that Europeans are so good at killing one another it’s quite lucky that we haven’t had the chance for a secessionist war yet.
If this is so, why then are there super-added provisions in the Constitution regarding its amendment? I believe, and I will stand on a fair reading of the history of every other republic that supports my view, that when we devolve into the sort of retail shopping approach of picking and choosing to honor those bits of the Constitution that may fit our political flavor of the month as opposed to relying on the moderating effect of a more principled view of the Constitution, we are on a very slippery slope indeed. Of course, that we are where we are is not a real surprise since the latter view depends in large part on what I believe (and again is reflected in the sad history of other socio/political experiments across the spectrum from marxism to a benign-at least initially- dictatorship) is the nature of humankind to subvert any system of governance to selfish ends. Thus without sufficient structures to retard and restrict this (prevention is impossible given the reality that all such systems are fatally flawed in that they in the end rely on human constructs), the system inexorably slides toward some variant of totalitarian control by a given elite. That is why our Constitution is so important and at a minimum why we should require that the procedures specified for changing it be honored and not allow the elites to circumvent them.
I suppose I have read a little too much Howard Zinn in my time to really embrace the American Constitution. Don’t get me wrong, I think it is a solid framework, and one of the better political arrangements out there, but I don’t think any such political document can remain immutable or separated from the society that governs it. As a personal observation, a framework/arrangement for binding a collection of ex-colonies together in a pre-industrial isolationist enterprise, as effective as it is, might not be the best framework for the 21st century. Speaking as an outsider, it beggars belief that America has not taken a stronger role on climate change simply because your balance of power detracts from any one political figure having executive authority to do anything about it. Furthermore, I don’t think the founding fathers could possibly have conceived of the anti-democratic power of big business lobbying in modern America. Don’t get me wrong, I think democracy is the best political system yet invented, but at the same time, when Stalin wanted something done, it happened, regardless of how inefficient and pointless it actually was. That’s why I consider democracy to have inbuilt limitations: it’s a great system for people, freedom and enterprise etc etc, but the more you diffuse power in a political system, the less big decisions that need to be made actually get made. Conversely, Britain under Tony Blair had the opposite problem: he could make any decision he wanted and there was little to stop him, therefore he kept on tinkering with the NHS, schools etc etc and wasted billions in the process.
Jack:
I suppose if you are a Zinn adherent we will have to agree to disagree. As for the US position on climate change (nee’ “global warming”), I think the US has actually gone too far in trying to accommodate what I and many of my countrymen believe is a rather hysterical and highly politicized movement that IMHO has far less to do with saving the planet from the evils of man than it does with increasing the control of globalization political elites. Indeed the migration since the fall (some would say rather “transformation”) of the Soviet Union of many progressives from their active roles in various internationalist organizations to those ostensibly concerned with climate and environmental issues is quite instructive in this respect.
I neglected to also note that while you may not have intended it as such in the technical sense, I would note that the US is not, and never has been, a “democracy” but is rather a republic. This is yet another reminder of the wisdom of our founders (again grounded in their Judeo-Christian appreciation of the “sin nature” of man) in the way they constructed the government to avoid the potential (and inevitable) tyranny of the majority in a pure democracy and to establish republican structures that are intentionally in constant “tension” as a buffer against the selfish usurpation of the system by any individual, group or even the majority.
Since it is the weekend I will refrain from any “deep” thoughts on this and simply note that in the US one does not need to go to the circus to find female companionship of suitable girth:
http://media.peopleofwalmart.com/wp-content/uploads/2009/11/573.jpg
Just to point out, I am no adherent of Howard Zinn! Though I find it instructive to read such books since they (the better written, non-conspiracy theory ones) invariably pick out details that are skipped in standard historical discourse, even if I do disagree with the author’s analysis.
Sorry-no slight intended-I used the wrong term obviously.