In our argument on outlawing/not outlawing the Nazis and KKK, you seem to think that the First Amendment, a law, is more than "nice words" or "The Sermon on the Mount" ( Ten Commandments ?). What is the difference between the First Amendment and International Human Rights Treaties and Conventions in your legal realist theory ?
Also, your support for the U.S./NATO action seems to be in part based upon alleged Serbian violations of the nice sounding words of international law against genocide (UN Convention, Nuremburg Principles), or no ?
I thought of another approach my argument on the Civil War Amendments on this thread. BEFORE the Civil War, the law upheld and enforced slavery as the law. The repressive apparatus of the state was used to keep Africans enslaved by force in accord with the law of the slave states. With the passage of the Fugitive Slave law and the Dred Scott decision, the law forced people in the non-slave states to abide by the rights and powers of the slave owners over their escaped slaves. Changing these laws was a form that the Abolitionist struggle had to take. As Fredrick Douglass said famously , that struggle might be moral and might be physical or might be both, but must be a struggle. Of course, I agree with Fredrick Douglass and Engels and Marx , who categorize law as superstructure , which is ultimately changed by changes in infrastructure. But once the change in law was achieved by an enormous physical struggle, the idea was not to treat the new words on the books as unimportant and to continue to only rely on physical means to enforce the new ban on slavery. The idea was to use the habit of most people obeying the law to achieve an end of slavery by a "moral" struggle , in Douglass' terminology; not to mention to use the backup of even the bourgeois state force for its laws, ever diligent that the ruling class would seek to erode that legal/moral method of enforcement.
In this argument, I cannot exactly figure out what position you are attributing to me and arguing against. You seem to be trying to out vulgarize the list vulgar materialist. Sure, changes on a piece of paper, a legal code book, are not what changes the situation, but vica versa. Who says otherwise ? But changes in the mode of production are fixed and formulated in law as a mode of their effectuation. But winning an "official" change in the legal code is an important goal of the underlying physical struggle, whether in the U.S. of the 1860's or in the emerging international legal order, however anarchistic the latter remains. Don't you see World Government as a long term goal of the International progressive/Left movement ? Aren't the UN and its conventions and treaties a first step toward that, though as in all struggles, with an ebb and flow ?
As Lenin said, law is politics; and war is politics by other VIOLENT means. But this does not mean that socialists do not aim to establish better laws reflecting better politics.
Charles Brown
>>> "Nathan Newman" <nathan.newman at yale.edu> 05/18/99 03:23PM >>>
-----Original Message-----
From: Wojtek Sokolowski <sokol at jhu.edu>
To: lbo-talk at lists.panix.com <lbo-talk at lists.panix.com>
>Which goes to my point that "law" is not about the words in the text but
>their interpretation and enforcement under real existing systems of
>government and state power.
_I would not say it better myself, Nathan, you are my man. If you could
-only apply that principle to the US intervention in Kosovo :)...
-wojtek
THey are related in my mind, since the point is that "international law" in regards to human rights has as little legal meaning as (to reinvoke the Civil War analogy) "free labor" did before the US Civil War. The Gettysburg Address is all about how the ultimate change in the constitutional framework of the country was not made through the Amendments later passed but through the bloody struggle that "consecrated" the new nation and its free labor legal system in the post-war era.
I don't want to push the "blood and iron" view of social change too far, for I believe fundamentally in the power of non-violent social and economic struggle as well, but whether by arms, by economic coercion or by the moral force of Gandhian resistance - the law changes only when force is used, not when pretty words are written down.
There is a ban against genocide and denial of civil rights within "international law" but it has never been enforced, so it has no real existence. The war in Kosovo is being based on enforcing that part of international law and through that intervention, the law is taking on some meaning. Of course, there are other darker motives involved; there always are, but to agree with Charles just slightly, the forms and rhetorics of intervention do matter, if only in giving those of less power in society a legitimacy to hoist the powers that be on their own petard of rhetoric.
On substance, I think the Kosovars have right on their side and I take seriously their view that intervention was necessary for them to achieve human rights in their land. On the law, we have the choice of privileging the "law" of non-intervention and the sanctity of borders or alternatively privileging human rights over the sanctity of the right to brutalize ones own people.
That the first major war fought in the name of human rights is a clumsy, bloody mess in many ways is hardly surprising, but if the end result is freedom for the Kosovars - and yes however circumscribed by outside dominance, but at least the form of dominance apparently preferred by the population's leadership - that will not only be for their good but for establishing real Law on human rights that has more meaning than the Sermon on the Mount.
--Nathan Newman