Jurisdiction

At Crescat, which isn’t very sympathetic to the principles of natural justice, Donald asks how there can be jurisdiction to try Saddam Hussein, since

at the time of the invasion of Kuwait, Saddam was in lawful control of the military...[and] no law existed at that time barring the use of the armed forces in any action that Saddam would have deemed necessary…. But does anyone seriously believe that in the late 1980s or early 1990s a law existed prohibiting violation of the “laws of nations?”

I’m not an expert on international law, but as far as the law of nations includes natural law—which is the case—then yes, absolutely there is a law, a natural law, against invading an unoffending and non-threatening nation. (Whether that was the actual case with Iraq’s invasion of Kuwait I honestly don’t know—I was too young at the time.) There is also, of course, a natural law against tyrannizing your own nation.

In 1648, the people of England put Charles I on trial for treason. Many royalists challenged their authority to do so. My favorite Christian libertarian, John Milton, explained that

if the Parlament…might…if they saw cause, take all power, authority, and the sword out of [the King’s] hand, which in effect is to unmagistrate him, why might they not, being then themselves the sole Magistrates in force, proceed to punish him who being lawfully depriv’d of all things that define a Magistrate, can be now no Magistrate to be degraded lower, but an offender to be punisht. Lastly, whom they may defie, and meet in battell, why may they not as well prosecute by justice?

For lawfull warr is but the execution of justice against them who refuse Law. Among whom if it be lawfull…to slay the King himself comming in front at his own peril, wherfore may not justice doe that intendedly, which the chance of a defensive warr might without blame have don casually, nay purposely, if there it finde him among the rest. [Critics] aske…By what rule of Conscience or God, a State is bound to sacrifice Religion, Laws and liberties, rather then a Prince defending such as subvert them, should com in hazard of his life. And I ask by what conscience, or divinity, or Law, or reason, a State is bound to leave all these sacred concernments under a perpetual hazard and extremity of danger, rather then cutt off a wicked Prince, who sitts plotting day and night to subvert them:

They tell us that the Law of nature justifies any man to defend himself, eev’n against the King in Person: let them shew us then why the same Law, may not justifie much more a State or whole people, to doe justice upon him, against whom each privat man may lawfully defend himself; seing all kind of justice don, is a defence to good men, as well as a punishment to bad; and justice don upon a Tyrant is no more but the necessary self-defence of a whole Common wealth.

I find this convincing as well as charming.

Update: Donald’s response is as hollow as most assaults on natural rights theory. He says “[a]ppeals to ‘natural law’ to justify sanctioning conduct always strike me as tantamount to saying ‘We can’t point to anything in our positive law that outlaws your conduct, but darn it, everyone knows that what you did was wrong, and you should have, too!’” This is nothing but a horselaugh, which is not an argument, and in any case, rejection of natural law is tantamount to saying “Well, it’s wrong because we say it’s wrong.” What exactly gives you the right to declare something wrong? By Donald’s criteria, nothing, and anything. And if there isn’t a statute against it, then there’s nothing wrong with it.

The reality is, there are many cases finding liability despite the fact that there is nothing in positive law that outlaws the conduct at issue. Tort law is full of such examples. When we demand that a person act “reasonably under the circumstances,” we are saying just that. Nations are likewise required to act reasonably under the circumstances, and an aggressive war against an innocent nation is not reasonable conduct, and is therefore wrongful as a matter of natural law. This is not an extreme, or even remarkable position. It never ceases to amaze me how positivists can base their entire theory on something as hollow as horselaughs and derisive quotation marks.

Donald also attempts to distinguish Charles I’s trial from Saddam’s by saying “[t]here seems to exist a great preference for actions against the head of state to be undertaken by such a body, rather than by a single member of the judiciary.” Good point. And it might be preferable in this case. But when Donald says “Charles I was ‘tried’ by the same government in existence at the time of his conduct,” he says what isn’t true. The long Parliament was nothing if not a different government. It was no longer a royalist government and it had assumed sovereignty in Parliament over the king—it was the product of a revolution, and therefore an inherently different government.