From: jmage-AT-panix.com Date: Sun, 4 Apr 1999 20:46:11 -0500 Subject: BHA:International law a subset of critical morality (DPF:Chapter Dear friends, Setting out unbidden to discuss international law, except among the fellow fetishists of the associations of international lawyers, needs a prefatory apology. But there are several among us teaching law and/or international relations, and there is some small chance that this might be of interest to them or others. If anyone has worked out the highly practical question of the status of international law within the critical morality of DPF beyond my weak attempt below I would be most thankful if you could turn me on to it. The occasion of this intervention is the NATO bombing of Yugoslavia. Pendent to the apology are an initial hermeneutic premise and a personal introduction. Hermeneutic premise: That international law is in some degree meaningful and relevant for dialectical critical realist and Marxist theory and practice. [All I seek is to exclude is buffoonery, such as the claim that international law is "bourgeois" and therefore irrelevant. Probably this is an unnecessary caution.] Personal introduction: I worked as a practicing international lawyer in the Federal Courts of the United States in the last decade of the cold war, and have been willingly unemployed in such matters since 1990 when my number one paying client entered liquidation (i.e. the Soviet Union). I usually appeared against the United States, but I have also appeared on the same side as the United States. ---- The move attempted here is the application of the transitive-relational / intransitive distinction (as applied on pp 210-11 of DPF) and the dialectic of morality (as on p 265 of DPF) to international law in the context of the NATO bombing of Yugoslavia. International law specifies a category (itself within the category of morality) among the attempts to guide human action in relation to both a. the systems of subjectivity and how individuals behave with each other, and b. the systems of how societies relate to persons, each other, and nature. Although all this is understandable as intransitive temporal process, international law (as all the moral & therefore moral/legal) falls on the transitive-relational side. This is because it is always anthropic or social-relation dependant. Therefore - to make the real overreach the actual - we must distinguish a. descriptive, redescriptive and explanatory critical international law from, b. the actually existing international law whose impaired state suggests that what is and what should be are irreducible, all is subjectivity, and critique not possible. But critique is possible because there is an objective international law, knowable in the transition of fact to value and theory to practice (a "naturalistic critique"). And also the claim that such a naturalistic critique is impossible since "international law" dissolves into force and subjectivity, often serves to mask the generation of an implicit emotivist or descriptivist "international law" reflecting the status quo ante of the actually existing moral/legal regime. For example the proud patriot - "What we say is international law is what it is, because we're the strongest, and a damn good thing we are." Thus this anti-naturalistic fallacy dissolves international law (in the transitive dimension) by reflecting the sorry state of international law in our already existing legalized and moralized circumstances (in the intransitive dimension). In this "a" sense (descriptive, redescriptive and explanatory critical international law) international law records the correspondence, which sometimes exists, between the ready at hand account of how things are among the powers of the world and the mist-hidden shape of how things should be. Hidden, obscure and uncertain as this latter is, on occasion - in the words of Francis Bacon - it is written "in such capital letters that (as the Prophet saith) 'He that runneth by may read it.' " World War Two caused to be spelt out such a set of capital letters. The UN Charter (which redescribed international law by referring the use of armed force between states to the Security Council, in light of the complementary notions of sovereignity and aggression) is the correspondence. There is no question whether the NATO bombing of Yugoslavia violates the UN Charter; it does. There is no exception in international law to the UN Charter (and the powers reserved to the Security Council) for humanitarian wars of aggression justified by human rights as interpreted by NATO or any state no matter how powerful and certain of its own righteousness. Therefore as a matter of imminent critique, the merely constitutive actually existing international law - indeed legal/moral regime - that so-to-speak would peacefully coexist with the NATO bombing is theory-practice inconsistent and subject to a withering dialectical comment. In this latter regard it is sufficient to point to the general inconvenience that could result from driving insane the officers in command of Russia's nuclear weapons. And sorry to say, some strange stuff has happened in the last several days - such as a Russian "test firing" of a ballistic missile, and a prominent Russian General muttering nuclearly. Conclusion: The redescription of the (post-cold war U.S. dominated) legal/moral regime made possible in light of this theory/practice inconsistency is both a task and a weapon of reason in the (DPF p 265) hermeneutic and material counter-hegemonic struggle moment of the dialectic of morality that we are now thrown into. This struggle is blocked at the moment by the growing war hysteria to some large degree in the US, and what looks like totally in the UK (where the advanced degree of control of the media makes e.g. the Guardian and Murdoch indistinguishable when it comes to the joys of bombing). In France, Germany and Italy this appears not to be the case; all glory to - for example, there are many others - Gregor Gysi and Armando Cossutta. But in the US while they have repeatedly in the last years demonstrated the ability to whip up some war hysteria when convenient they have shown no ability to sustain it. A teaching moment may follow. --- from list bhaskar-AT-lists.village.virginia.edu ---
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