>>> "Nathan Newman" <nathan.newman at yale.edu> 05/20/99 12:34PM >>>
-----Original Message-----
From: Charles Brown <CharlesB at CNCL.ci.detroit.mi.us>
To: lbo-talk at lists.panix.com <lbo-talk at lists.panix.com>
>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 ?
Nathan: The First Amendment has been enforced on behalf of people without direct state power, however imperfectly. The UN Conventions never have.
Charles: Please elaborate. The First Amendment, like all of the Bill of Rights, is a right of (private) individual freedom from state power or control. It does not protect (private) individuals from other (private) individuals. In other words, a private individual cannot violate another private individual's First Amendment rights, by definition. If you prevent me from speaking, somehow, that is NOT a violation of my First Amendment rights. It may be some other crime or tort, but it doesn't violate my First Amendment rights.
Therefore, anytime the First Amendment is enforced, it involves the suppression of the exercise of state power. For example, a court tells the city government that they cannot prevent me from making a speech.
The Nazi war criminals were tried pursuant to the same international law principles that are the basis for some of the UN conventions. The Viet Namese may have invaded Cambodia based on international law principles; and the current trials of Khmer Rouge leaders may be pursuant to same. Some of the anti-Apartheid activities were international law based (South Africa was excluded from the UN for a while) . All activity of the World Court is based on international law. et al. So, there is some , though not enough, enforcement of UN and other international law.
By the way, there was no Supreme Court case pursuant to the First Amendment ( adopted with the Bill of Rights in 1787 ?) until 1919. So, the First Amendment was not enforced for a century either.
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Nathan: While there are obviously lots of areas where the First Amendment has failed, we do have many cases where government censorship of leftwing papers in this country has been overruled by judges. We have the Pentagon Papers case, we even have a Revolutionary Communist Party member winning the right to burn a flag.
The difference is not the perfection on enforcement on behalf of the 1st Amendment, but that there has been any enforcement at all - something that cannot be said about the UN conventions.
Charles: There has been some enforcement of UN law. See above. Sometime I will give a more complete statement of the history of First Amendment cases and the Left. I have a brief essay on it, but I don't have time to copy it now. I don't know of "many cases" where left speech was upheld. There are several cases at critical times when Left, especially, communist speech was suppressed, as an exception to First Amendment protection, including jailing, of course.
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>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 ?
No, they are based on the alleged Serbian actions of brutality and ethnic clensing, irrespective of empty legal rhetoric.
Charles: Please explain how your rhetoric is less empty than the legal rhetoric ? The legal principles have the same relationship to the alleged actions of the Serbs as your rhetoric. Certainly the U.S. and NATO are claiming to be acting based on UN and international law rhetoric.
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I will admit to occasionally raising such conventions in response to those arguing for NATO "illegality", but only to note the ideological incoherence of this network of non-enforced laws who can only maintain such incoherence precisely because they never face real tests of enforcement.
Charles: You have not differentiated your rhetoric from international law rhetoric by this statement. Your non-legal rhetoric has not been enforced either, so it is equally empty.
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>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.
Law is a form of mandatory mediation; once two sides come to an agreement based on their relative power in time, they agree to avoid non-legal means of conflict for resolution, since having tested each other's strength, they are confident the result will not be too different from what the law will deliver. That is the principle of agreeing to legislation as well as signing a union contract at the end of strike.
Until relative forces change, both sides will abide by the agreement and avoid the waste involved in non-legal conflict. The law in that sense is a time and resources saver in a society that knows the strength of its different parties. So yes, law is to be respected for that reason and for its imperfect reflection of democratic will, but I don't believe in fetishizing it. That seems an odd position for a socialist under capitalist law.
Charles: Your analysis of bourgeois law doesn't sound very Marxist. The non-odd socialist/communist character of my approach to law under capitalism has been explained at length on this thread. Legal struggle under capitalism is a form of REFORM struggle. For example, See Lawyer Lenin's_Leftwing Communism_ for a discussion of Marxist attitude to reformist struggle
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>You seem to be trying to out vulgarize the list vulgar materialist.
Maybe you are less vulgar than you think? :) (((((((((((((((
Charles>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
?
Nathan: Yes to the first question, only a little bit to the second. In its reactionary way, the WTO, the IMF and other trade agreements are much more the road to world government, precisely because they have enforcement mechanisms. There are some fascinating international agreements being made connected to global enforcement of tort claims. A few activists are trying to target corporate-connected genocide against indigenous peoples through such laws. But note, these agreements are happening outside the UN as part of the trade regime.
Charles: Of course, the current trade agreements are bad international law, though , as you imply , the general precedent of international law enforced, MIGHT be used in an opposite way in the future.
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So I am a vulgar Weberian as well as a vulgar Marxist. If the state "law" and institution in question does not have a monopoly on the use of legitimate force in the issue addressed, it is not government or law but, as I said, merely nice words.
I don't like the WTO since the words are less pretty than in the UN conventions, but it is far more a world government than anything coming out of the United Nations.
Charles: The war on Iraq was a UN war.
Charles Brown