Humanitarian Intervention: An Inquiry into Law And Morality

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Good contemporary Overview.......2007-03-16

International Humanitarian Law: Prospects, 3rd Edition, fully revised and updated edition edited by John Carey, William V. Dunlap, R. John Pritchard (International Humanitarian Law: Transnational Publishers) Excerpt: When the contributors gathered in Vienna in 1998 for the workshops that were eventually to grow into this series of volumes on the origins, challenges, and prospects of international humanitarian law, the horrendous and world-changing events of September 11, 2001, were nearly as far in the future as they are now in the past as the third and final volume goes to press.
Since that day, millions of people who had never heard of-- or at least thought much about -international humanitarian law have been bombarded daily with news and commentary that impressed its existence and importance on the public consciousness and conscience. For many, for the first time, the laws of war meant something more than "name, rank, and serial number," never a completely accu¬rate delimitation of the interrogation of prisoners of war, but close enough for pop¬ular consumption. Abu Ghraib and Guantanamo soon supplanted Tamarkan ("The Bridge on the River Kwai"), Stalag Luft III ("The Great Escape"), Stalag 13 ("Hogan's Heroes"), and the eponymous Stalag 17 as the popular images associ¬ated with prisoners of war, and these real-life images--whether of the prisoners or of the guards--were grimmer than most had expected. In the popular, some¬times comedic, representations of POW camps, the guards (invariably German or Japanese) were the villains, and it came as a shock to the American national psy¬che that this could be so even when the guards were Americans.
The response of the American government was swift and predictable: It never happened. If it did happen, they were just a few isolated incidents. And anyway, they did not violate international law, because the Geneva Conventions do not apply to "terrorists." By now, we know that none of that was true. The incidents are well documented and numerous, and President Bush himself has announced that the Geneva Conventions apply to all detainees in what he proclaimed as "the war on terror," now "the long war." The apparent change in direction is due in large part to the United States Supreme Court's ruling in Harridan v. Rumsfeld, 548 U.S. , 126 S.Ct. 2749 (2006), which not only reinforces the role of the Congress in determining United States policy but also makes clear that the Geneva Conventions do apply, to the surprise of few outside of the United States.
One can hope that the Hamdan case marks the end of a brief diversion from the history of progressive development that the law of armed conflict has been enjoying for the past century and more. It was a sharply divided Supreme Court that rebuked the President and his attempts to evade his constitutional limitations and the international obligations of the United States, but it was a rebuke nonethe¬less. It is not at all clear whether that diversion was fueled by a misreading of the end of the cold war and America's role as the "world's sole superpower," or by a exuberance at finally being in a position to put neoconservative ideas to work, or by a misguided notion of American exceptionalism, or just by a good old Texas-style I've-got-a-job-to-do-and-nothing's-gonna-stand-in-my-way attitude. Whatever prompted it, it now appears that the political appointees in the White House who have been dictating the legal analysis to the professional lawyers at the Justice Department, the Pentagon, and the State Department Legal Adviser's Office--instead of the other way round--may be getting the message. This vol¬ume, then, is coming out at a most propitious time.
It became clear soon after September 11, 2001, that the world would be look¬ing differently at international humanitarian law. What to do, then, with a vol¬ume--well under way--on the prospects of international humanitarian law. The regime of the Hague and Geneva Conventions was facing perhaps its gravest chal¬lenge ever, even while other developments--notably the creation of the Inter¬national Criminal Court--were carrying international humanitarian law in new directions. After much consideration, we decided that the new debates over Guantánamo, "enemy combatants," and the Geneva Conventions should not draw attention away from the broad range of issues addressed in this volume--the ICC, victims' rights, sanctions regimes, and ad hoc tribunals--and that it would be a disservice to sideline these discussions while reshaping the book around the Guantanamo and Abu Ghraib phenomenon. So we retained our original structure, updated the contributions, and invited a particularly respected scholar to address the new central question raised by the United States' response--Do terrorists have rights under international humanitarian law?
Leslie C. Green, among the most distinguished commentators on the law of armed conflict, answers that question with a resounding "yes" in the opening chapter, "The Relevance of Humanitarian Law to Terrorism and Terrorists" (the only essay here to have been written entirely after the events of 2001). Professor Green, after reviewing the antiterrorist conventions, the UN principles on the treatment of prisoners, international human rights treaties, the Geneva Conventions, and judicial decisions in Canada, Britain, and the United States, reaffirms the universality of humanitarian law and its application to everyone, even terrorists. If "they" had treated "our" personnel as "we" have treated "theirs" at Abu Ghraib and Guantánamo, he reminds us, captured offenders would have been charged with war crimes and, on conviction, would have been sentenced to long terms of imprisonment or condemned to death. Meanwhile, the Bush admin¬istration, as this volume goes to press, seems to be, gradually and grudgingly,coming around to this point of view while denying that the doctrine of command responsibility appears to lead directly to the Pentagon and the White House.
Nevertheless, in a British case that, like Hamdan, was decided too late for Professor Green to discuss, it would appear that the House of Lords has restricted the reach of international humanitarian law. The Lords held, in R. v. Jones, [2006] UKHL 16, that, in the absence of appropriate legislation by Parliament, the courts of the United Kingdom (and by extension the far-flung British Commonwealth) are powerless to recognize the authority of international law and that they lack capacity to rein in the actions of the Crown when any British Government--under cloak of the royal prerogative to wage war--commits crimes against peace or crimes against humanity. It is not open to the courts, said the Lords, even to con¬sider whether such crimes have been committed by a British Government. Thus while the power of any British Government to try enemy war criminals for war crimes, crimes against humanity, or crimes against peace has been demonstrated in the distant and not-so-distant past, its power to hold British subjects to account may be highly restricted.
Shortly after the end of the Second World War, a young Army lawyer asked the Nuremberg Tribunal to affirm, through law, the human right to live in peace and dignity. Nearly sixty years later, Benjamin B. Ferencz, who in the meantime has become one of the world's most passionate and eloquent spokesmen for inter¬national law and justice, repeats, this time to the world community, that same "Plea of Humanity to Law." Whether through ad hoc international criminal tri¬bunals, or the International Criminal Court, or the Security Council's enforcement powers--or all of the above--those who violate the international laws of human¬ity must answer for their deeds. The people of the world must send this message to their leaders--or pray that they themselves do not become the next victims.
"International criminal law in any true sense does not exist," wrote Georg Schwarzenberger (one of Leslie Green's law professors at University College, London, before the Second World War), midway through the twentieth century. At the opening of the twenty-first, the Statute of Rome went into effect, creating the world's first standing international criminal court. Even if Schwarzenberger was correct at the time, does the birth of the ICC mean that an international crim¬inal law in some true sense does now exist? What is the implication of the ICC for the concept of national sovereignty, for the state's monopoly on criminal juris¬diction, or the implication of sovereignty for the success of the ICC? In "The Creation of the International Criminal Court and State Sovereignty: 'The Problem of an International Criminal Law' Re-examined," Frederic Megret, one of Canada's outstanding international legal scholars and a former UNPROFOR "blue helmet" in Sarajevo, examines in extraordinary detail and depth these tensions and contradictions, wondering whether the ICC can ever become a defining force in global relations.
Wade Mansell of the University of Kent can muster but "Two Cheers for the International Criminal Court." He welcomes the creation of the ICC but with a caveat: One byproduct, not necessarily unintended, is a formal relegation to sec¬ond-class status of economic, social, and cultural rights, as opposed to the civil and political rights that the court will have jurisdiction to enforce. He sees this as one more step in the triumph of liberal rights over economic rights, which earlier was reflected in the decision to enforce the Universal Declaration of Human Rights by two separate international covenants and which has accelerated with the ascendancy of liberal capitalism over socialism. Why, he asks, should a fail¬ure to protect economic rights not be as much an offense as a violation of civil and political rights? Like any other international instrument, the Treaty of Rome was a product of realpolitik and idealism. As Mansell implies, there were limits to what influential countries were prepared even to consider.
In much the same way, compromises can be found in the Rome Statute's def¬initions of crimes, which define the ICC's jurisdiction. On the one hand, its def¬inition of genocide is virtually synonymous with that of the Genocide Convention and of a growing body of customary international law, but there the similarity ends. The ICC's jurisdiction over the other categories of offenses within the ICC's jurisdiction--crimes against humanity and war crimes--is severely limited by, for example, the use of such limiting words as "widespread" and "systematic," which do not appear in other international instruments and case law defining, refining, and even extending these offenses. This means, says Professor Jordan Paust, a leading scholar of international criminal law, in describing the restrictive nature of the "Crimes within the Limited Jurisdiction of the International Court," that primary competence and responsibility for prosecuting (or extraditing) those accused of war crimes and crimes against humanity continues to lie with nation-states and the international ad hoc tribunals.
As this volume goes to press, it appears that a new mixed tribunal of Cambo¬dian and international prosecutors and judges will be convened after all, ending the long period of uncertainty about that which has lain across the conscience of mankind since the 1970s. It was hard enough to persuade the international com¬munity that, as a general proposition, a Cambodian war crimes tribunal was a good idea. Once it had finally been agreed that the Khmer Rouge would be held accountable for their atrocities in Cambodia, the debate had just begun. Under whose authority would a tribunal be established--the Security Council, the General Assembly, the Cambodian government, a "third" country" a Nuremberg-style coalition? The question of venue, too, was critical, for where a tribunal sits bears heavily on cost, political interference, witness protection, and the message that the trials would send to the survivors. Questions of temporal and personal jurisdiction--which crimes and which persons are to be prosecuted--may be influenced as much by raw politics as by notions of justice. In "Designing Justice for Cambodia's Khmer Rouge," Craig Etcheson, who helped found and then directed the Documentation Center of Cambodia in Phnom Penh, examines these "practical issues" that will face the organizers of every future ad hoc tribunal.
In the spring of 1999, as NATO forces launched an intensive humanitarian intervention to suppress the ethnic cleansing and other large-scale violations of international humanitarian law in Kosovo, the Federal Republic of Yugoslavia brought eleven actions in the International Court of Justice, asking the court to find that members of NATO had violated their obligations under the UN Charter. As it was undisputed that NATO forces were attacking Yugoslavia, what was the legal justification? Given that the UN Security Council had not specifically authorized this particular intervention, was this no more than regional vigilante justice? The ICJ has since dismissed all the cases on jurisdictional grounds, so the question remains judicially unresolved. One possible answer lies with the ICTY, the International Criminal Tribunal for the Former Yugoslavia. In "NATO's Attack on Yugoslavia: The Deputation of an Ad Hoc International Constabulary," Paul Rutkus, lecturer of international criminal law at Carleton University, explores whether the Security Council could have delegated a measure of Chapter VII peacemaking authority to the ICTY, which in turn could have authorized NATO's member states to assist the Tribunal in protecting victims and witnesses, secur¬ing evidence and crime scenes, and detaining suspects and surrendering indictees for trial.
Economic sanctions, originally conceived as measures of international col¬lective coercion short of military force and as mechanisms for enhancing the role of the less-powerful but peaceable states, have proved to be highly controversial. They have been denounced as genocide and as institutionalized racism, and, says Paul Conlon, the United Nations in recent years has spent as much effort miti¬gating the effects of its own economic sanctions as it has enforcing them. Dr. Conlon, a former official of the United Nations Centre against Apartheid and of the Security Council's Iraq Sanctions Committee, suggests that sanctions as they have been applied violate the principles and goals of international humanitarian law, particularly the Fourth Geneva Convention, concerning civilian populations. Sanctions, he suggests, should be administered with humanitarian considerations and general legal principles in mind. Proportionality, for example, dominates every legal discussion of military reprisal but seldom enters into the evaluation of sanctions--either their enforcement or humanitarian measures to mitigate their effects. With well over half a million deaths in Iraq caused by U.S.-led UN sanc¬tions between 1991 and 2003, it is easy to argue that proportionality must rein in what can be permitted in the name of international law or international politics. Dr. Conlon proposes not only adapting sanctions regimes to humanitarian law but also "Adapting Traditional Humanitarian Law to Sanctions."
Until the mid-twentieth century (and in some countries, such as Japan, even to this day) individuals were generally regarded exclusively as objects, rather than subjects, of international law, enjoying no personal rights and holding no obliga¬tions. Perpetrators of war crimes, in the broad sense, have marked a sharp excep¬tion to the rule, as they (sometimes) can be brought to personal justice under the Geneva Conventions and the Nuremberg principles. Avril McDonald suggests that the perpetrators' victims, too, are now beginning to find recognition in the international criminal justice system. Though the statutes of the ad hoc tribunals made little or no effort to accommodate the interests of the Yugoslav and Rwandan vic¬tims of those atrocities, the Statute of the ICC has integrated victims into the process by requiring their interests to be considered at every stage--by the pros¬ecutor, the Pre-Trial Chamber, the Trial Chamber, and the Appeals Chamber. Significantly, victims may make submissions directly to the court. In "The Devel¬opment of a Victim-Centered Approach to International Criminal Justice for Serious Violations of International Humanitarian Law," Dr. McDonald, an IHL scholar at the T.M.C. Asser Instituut and editor of the Yearbook of International Humanitarian Law, suggests that this is a good start but that a great deal more remains to be done, especially regarding reparations.
As the volume ends, so does the series--as it began--with R. John Pritchard examining British war crimes trials in the aftermath of past wars, in the hope that these experiences might offer some insight into the implications of how such tri¬als may be conducted today or in the future. In "The Parameters of Justice: The Evolution of British Military and Civil Perspectives on War Crimes Trials and Their Legal Context," Dr. Pritchard, one of the most prolific and distinguished historians of war crimes trials, concludes that concerns about fairness to perpe¬trators gave way to political expedience and haste in the disposition of clemency, displacing concern for victims and justice and ultimately poisoning Britain's rela¬tionship with Germany, Italy, and especially Japan after the Second World War. As we face the winding down of the International Tribunals for Yugoslavia and Rwanda and other ad hoc tribunals, who is going to govern the administration of clemency and parole when the judges are no longer there? Will the prisoners be in the hands of some other legal authority, or will these important questions of justice fall to politicians?
* * *
In the meantime, the scope and concerns of international humanitarian law continue to grow. The Bush administration may, paradoxically, have strengthened the IHL regime through its efforts to disregard the Geneva Conventions. Public disgust at efforts to deny or condone torture and inhumane treatment, combined with a pragmatic recognition that U.S. soldiers taken prisoner elsewhere in the world could be on the receiving end of such treatment, reinforced in the public mind the need for binding international rules of war. Indeed, it was military lawyers who led the opposition, within government and without, against the administration's efforts to undercut the Geneva Conventions.
Will the public support of the Geneva Conventions translate into similar sup¬port for the International Criminal Court? There is no logical reason that it must. The United States has long been legally bound by the Geneva Conventions, and the reciprocal benefits they provide are, or so one might have thought until recently, beyond questioning. The debate over the ICC, on the other hand, is whether tosign on to a new venture, and whether the benefits are worth the costs. The reci¬procity that is inherent in the Geneva regime does not, as Frédéric Mégret observes, become a factor in the ICC regime unless the United States chooses to join, which is the very issue being debated. Nevertheless, the experience with the Geneva Conventions may have awakened the American public to the importance of international cooperation and the difficulty, even futility, of trying to go it alone, "sole superpower" or not.
Through all this, the scope of international humanitarian law continues to grow. War-crimes victims caught in the seemingly faceless and unfeeling justice system, and innocent civilians trapped in the squeeze of the sanctions regime, have caught the attention of the IHL theorist. Women suffer disproportionately in war--particularly in modern social conflict, where the battlefields are not well defined--and have found little justice in the legal system for the sexual violence systematically directed at them. Kelly Askin, in Volume II--Challenges--looks at the jurisprudence of the Rwandan and Yugoslav ad hoc tribunals and finds cause for hope.
Therein lies the importance of books like these and the essays they comprise. Grand projects have grown out of a single writing. Henri Dunant's Souvenir de Solferino was the conception of the modern law of armed conflict, as we used to call international humanitarian law, and the Genocide Convention was adopted in 1948 and entered into force in 1951, just a few years after Rafael Lemkin coined the word in 1944 in Axis Rule in Occupied Europe. In fields that are, like law, by nature practical, theory often develops a bad name, especially when the practi¬tioners or the victims cannot see that the theory describes a real problem and, sometimes at least, offers a real-world solution. These essays are rooted in real¬ity and may even change that reality for the better.

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Moral Philosophy Through The Ages
James Fieser
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ASIN: 0767412982

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This book takes a middle ground between the topical and historical approaches to Western ethics. The chapters are topically arranged, but preserve the flow of history in two ways. First, each chapter explains the historical development of the topic under consideration. Second, most chapters focus on a specific famous philosopher who championed a particular tradition, such as Aristotle, Locke, or Kant, and the chapters are chronologically ordered based on when these key philosophers lived.

Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (Morality and Society Series)

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A wonderful treatment of a fascinating subject

Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy (Morality and Society Series)

Manufacturer: University Of Chicago Press
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ASIN: 0226886239

Book Description

These essays, by widely respected scholars in fields ranging from social and political theory to historical sociology and cultural studies, illuminate the significance of the public/private distinction for an increasingly wide range of debates. Commenting on controversies surrounding such issues as abortion rights, identity politics, and the requirements of democratization, many of these essays clarify crucial processes that have shaped the culture and institutions of modern societies.

In contexts ranging from friendship, the family, and personal life to nationalism, democratic citizenship, the role of women in social and political life, and the contrasts between western and (post-)Communist societies, this book brings out the ways the various uses of the public/private distinction are simultaneously distinct and interconnected. Public and Private in Thought and Practice will be of interest to students and scholars in disciplines including politics, law, philosophy, history, sociology, and women's studies.

Contributors include Jeff Weintraub, Allan Silver, Craig Calhoun, Daniela Gobetti, Jean L. Cohen, Jean Bethke Elshtain, Alan Wolfe, Krishan Kumar, David Brain, Karen Hansen, Marc Garcelon, and Oleg Kharkhordin.

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A wonderful treatment of a fascinating subject.......1997-01-22

This book is terrific: for a serious treatment of all of the implications of the public/private distinction, this book has it all. Indeed, Jeff Weintraub's essay, "The Theory and Politics of the Public/Private Distinction" is worth several times the cover price alone. Revealing astounding erudition and producing penetrating insights, Weintraub clearly and patiently shows us how many commonly understood notions of the public/private distinction are wrong and why. To sit at Weintraub's intellectual table is to be guaranteed a delicious feast -- as readers of this volume will quickly find out. Buckle up as Weintraub takes you from Smith to Gellner to Jane Jacobs to Aristotle to Durkheim and way beyond; for any lover of ideas, his essay and the others in this collection are a real treat

Making Men Moral: Civil Liberties and Public Morality (Clarendon Paperbacks)

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Over-rated
How- to for the end of liberal society
A defense of perfectionism

Making Men Moral: Civil Liberties and Public Morality (Clarendon Paperbacks)
Robert P. George
Manufacturer: Oxford University Press, USA
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ASIN: 0198260245

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Contemporary liberal thinkers commonly suppose that there is something in principle unjust about the legal prohibition of putatively victimless immoralities. Against the prevailing liberal view, Robert P. George defends the proposition that `moral laws' can play a legitimate, if subsidiary, role in preserving the `moral ecology' of the cultural environment in which people make the morally significant choices by which they form their characters and influence, for good or ill, the moral lives of others. George shows that a defence of morals legislation is fully compatible with a `pluralistic perfectionist' political theory of civil liberties and public morality.

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Over-rated.......2006-04-26

Mr. George spends a great deal of time and effort justifying meanness, cruelty, and bone-headed, stupifying insanity. He fears the different among us, those who do not conform to his tired, old-hat definitions of what is good and moral. Hatred is not a traditional value, Mr. George.

How- to for the end of liberal society.......2004-04-13

The good Professor has presented a book that argues it is justified to use criminal law to protect men from themselves. J.S. Mill laid out the basic argument more than 150 years ago that the state has no right to intervene in ones life unless a person's behaviour poses a serious harm to others. That harm must be real, not based on whether speech or action offends others.

I would suggest that right wing readers, who believe in imposing ones values and morality on others will enjoy this book. For students of Mill I would suggest you pass unless you want to "know thy enemy", in which case I would recommend the library. Then you can donate the money you save to the ACLU or CCLA.

A defense of perfectionism.......2000-12-10

This book is a strong response to the widely held view that morality as such cannot be enforced by the law. According to Prof. George, society may legitimately seek to "make men moral" as long as the moral sentiment expressed is legitimate. The last qualification is important, because it does set a limit on how far the law may go in interfering with personal autonomy. Therefore, we can say that it is premised on a natural law foundation, which is foreign to most people today. Most of the arguments are made in the course of criticizing the opposing views of some heavyweight philosophers like Ronald Dworkin, John Rawls, and Joseph Raz. Especially good is a chapter on the famous debate between H.L.A. Hart and Patrick Devlin. Though George's position is closer to that of Devlin, he does a good job explaining how Devlin's views are in many ways deficient and incompatible with a free society. This is a fine book no matter what your political views, though it does help to have a background in political and moral philosophy to fully grasp the arguments.

God And The Grounding Of Morality (Canadian Short Story Library)

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God And The Grounding Of Morality (Canadian Short Story Library)
Kai Nielsen
Manufacturer: University of Ottawa Press
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ASIN: 0776603280

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The Morality of Consent
Alexander M. Bickel
Manufacturer: Yale University Press
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ASIN: 0300021194

Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality

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Too Sure Of Itself For Its Flaws, Interesting Though
Compelling Libertarian Thesis
libetrian with liberal veiws

Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality
Elizabeth Price Foley
Manufacturer: Yale University Press
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ASIN: 0300109830

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In the opening chapter of this book, Elizabeth Price Foley writes, “The slow, steady, and silent subversion of the Constitution has been a revolution that Americans appear to have slept through, unaware that the blessings of liberty bestowed upon them by the founding generation were being eroded.” She proceeds to explain how, by abandoning the founding principles of limited government and individual liberty, we have become entangled in a labyrinth of laws that regulate virtually every aspect of behavior and limit what we can say, read, see, consume, and do. Foley contends that the United States has become a nation of too many laws where citizens retain precious few pockets of individual liberty.

With a close analysis of urgent constitutional questions—abortion, physician-assisted suicide, medical marijuana, gay marriage, cloning, and U.S. drug policy—Foley shows how current constitutional interpretation has gone astray. Without the bias of any particular political agenda, she argues convincingly that we need to return to original conceptions of the Constitution and restore personal freedoms that have gradually diminished over time.

Customer Reviews:

Too Sure Of Itself For Its Flaws, Interesting Though.......2007-07-15

Books of this sort are interesting but too doctrinaire and selective to be convincing ... surely to the level of assurance suggested. This is furthered by the author -- again not unique to her -- questionable use of history, often ignoring troubling matters that would make her conclusions harder to reach. Thus, even if you respect her argument of libertarian views based on individual sovereignty (I do), how she gets there and how she applies it leaves something to be desired.

A few examples. As is typical of the genre, at least of those favored by the blurbs on the back of the book, the author argues recent courts have 'invented' things to fit the Constitution into what they feel is necessary for society. Interesting. After all, the author opposes Justice John Marshall's (who was at the founding) rejected of applying the Bill of Rights to the states in 1833 (before the 14th Amendment). One can also cite the Slaughterhouse Cases. That was 1873. And, a myriad others before the New Deal. As some note, pre-New Deal cases quite often upheld regulations. The 'Lochner Court' stereotype, notwithstanding.

Or, in general, all the liberty violations upheld in the past by the courts (no sending contraceptives thru the mail, various sexual practices, prohibtion laws [the fact a few did not doesn't suggest 'original understanding' which she claims is a primary drive of her jurisprudence] etc. One might also note times have changed -- there weren't even any police forces back in 1789. Modern society requires more laws (though citations of spitting on the sidewalk as an issue, is that not a public nuisance, is curious); but in many ways we are more free than we were in the past.

This is so even if general principles, though not how they were often applied, might be interpreted differently. She cites Burke ... but he was a conservative who supported many repressive laws on tradition grounds. Selective use of his statements mislead. Likewise, her balancing of state interest at times is rather brief (esp. latter chapters ... the one on illegal drugs are almost conclusionary; the book is under 200pg. w/o notes) and a bit dubious. For instance, as to motorcycle helmets and public health costs, she notes the state generally doesn't pay. What if it did?

The book does have benefits, if we admit to such problems, suggesting that off the top claims and a bit more modesty is often useful in such works. The fact a 'living constitution' approach can use a work of this nature is a bit ironic, but so it goes. I'd add a recent book by Daniel Farber on the Ninth Amendment was also pretty brief, providing some interesting arguments, but not enough depth at times. A good companion volume.

Compelling Libertarian Thesis.......2007-01-15

Bound to be a future classic-- a sort of modern, practical John Stuart Mill "On Liberty"-esque book. An intriguing historical account of the unique features of the American Constitutional structure that have been unfortunately abandoned, leading to a proliferation of significant and trivial laws that restrict individual liberty and expand government's power. Foley's thesis is that there are "twin foundational principles" of American law that make it unique from all prior forms of government: (1) limited government (in terms of the powers granted by the people to their governors); and (2) residual individual sovereignty. She convincingly shows how these principles indicate a harm principle at work in American law-- not just in theory, but in fact.

Most original is her treatment of number 2 (residual individual sovereignty), which she traces back to the original Law of Nations devised by writers influential with the founding fathers, such as Vattel, Grotius and von Puffendorf. To the founding fathers, sovereignty, as defined by this Law of Nations, was understood in a very specific way, to mean complete liberty or power to do as the sovereign pleased, subject only to the principle of "do no harm" (except in self-defense). In the newly formed United States, the founding fathers parsed out to the governors only a very limited portion of sovereignty (limited powers) and kept the residuum in the hands of the people. When paired with the conception that American government was intended to possess power only to protect the people's life, liberty, and property, Foley shows us how the residual sovereignty remaining in the people's hands is very broad and meaningful indeed. This notion was memorialized in the Ninth Amendment (which has been completely ignored by the judiciary, as if it did not exist).

Unlike writers like Joel Feinberg (who is also highly recommended), Foley
offers a comprehensive definition of legal harm that can be applied to judge the legitimacy of all laws. She then proceeds to do so, tackling with finesse and mind-boggling breadth of knowledge issues like sex, drugs and alcohol, reproduction, marriage abortion, assisted suicide and others.

The writing is clear, crisp and entertaining. Her historical research is very original and tight. This book is a great read for anyone who is interested in a deep theory of the American Constitution. Unlike the previous reviewer (who apparently cannot spell), I would wholeheartedly recommend to anyone, conservative, liberal, libertarian or anywhere in between. Looking forward to reading her future work.

libetrian with liberal veiws.......2007-01-14

Where are the constitutional values for liberty>? I do not recommend this book.

The Origins of Justice: The Evolution of Morality, Human Rights, and Law (Pennsylvania Studies in Human Rights)

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The Origins of Justice: The Evolution of Morality, Human Rights, and Law (Pennsylvania Studies in Human Rights)
John O'Manique
Manufacturer: University of Pennsylvania Press
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The Evolution of Morality (Life and Mind: Philosophical Issues in Biology and Psychology)

ASIN: 0812237064

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The Origins of Justice: The Evolution of Morality, Human Rights, and Law presents a view of human origins and nature that is radically different from that of the prevailing Western paradigm. John O'Manique's view shifts the emphasis from a negative characterization, in which humans are primarily aggressive and solitary, to a more positive picture of human origins within social communities, in which empathy and mutual care are just as natural and effective as selfish, competitive behavior. Drawing from neo-Darwinian theory and research on evolution, O'Manique develops hypotheses on the origins of human rights and justice that challenge the Western paradigm and the writings of such influential modern theorists as John Rawls and Robert Nozick.

In the prevailing paradigm, justice is a rational solution to the natural condition of fear and conflict. But, O'Manique suggests, scientific evidence supports the hypothesis that human rights, law, and justice arise within caring communities, from the reflections of our early ancestors on genetically based inclinations required for biological development. With the birth of self-consciousness, O'Manique shows how humans, within the context of their communities and cultures, construct systems of justice which transcend the biological base from which they emerged.

Euthanasia, Morality and the Law (Teaching Texts in Law and Politics, V. 19.)

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Euthanasia, Morality and the Law (Teaching Texts in Law and Politics, V. 19.)
Kumar Amarasekara , and Mirko Bagaric
Manufacturer: Peter Lang Publishing
ProductGroup: Book
Binding: Paperback

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The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Morality and Society)

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A fascinating look at civil rights development in the US

The Ironies of Affirmative Action: Politics, Culture, and Justice in America (Morality and Society)
John David Skrentny
Manufacturer: University Of Chicago Press
ProductGroup: Book
Binding: Hardcover

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ASIN: 0226761770

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Affirmative action has been fiercely debated for more than a quarter of a century, producing much partisan literature, but little serious scholarship and almost nothing on its cultural and political origins. The Ironies of Affirmative Action is the first book-length, comprehensive, historical account of the development of affirmative action.

Analyzing both the resistance from the Right and the support from the Left, Skrentny brings to light the unique moral culture that has shaped the affirmative action debate, allowing for starkly different policies for different citizens. He also shows, through an analysis of historical documents and court rulings, the complex and intriguing political circumstances which gave rise to these controversial policies.

By exploring the mystery of how it took less than five years for a color-blind policy to give way to one that explicitly took race into account, Skrentny uncovers and explains surprising ironies: that affirmative action was largely created by white males and initially championed during the Nixon administration; that many civil rights leaders at first avoided advocacy of racial preferences; and that though originally a political taboo, almost no one resisted affirmative action.

With its focus on the historical and cultural context of policy elites, The Ironies of Affirmative Action challenges dominant views of policymaking and politics.

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A fascinating look at civil rights development in the US.......1998-12-08

John David Skrentny has written a profound and deeply enlightening look at the development of affirmative action. His examination of the co-option of the race and quota issues by the right wing in the early 1970's is a must read for any student of history, politics, and American culture. A gifted and highly readable author, Mr. Skrentny takes the reader on a cook's tour of the social and political development of affirmative action. An excellent compoanion volume to Hugh Graham's civil rights work. Highly recommended.

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