The Paradox of Law: The Past as Prologue

by Mario Rizzo


As an economist who has specialized in the economic analysis of law, I am quite frustrated by the statements of some commentators that the Obama Administration and the Congress should not look backwards in trying to uncover and/or prosecute member of the Bush Administration who may have been guilty of illegal actions, war crimes, crimes against humanity, violations of the Geneva Conventions and so forth.


In a sense, the prosecution of any alleged criminal is pointless. The act is done – the past is irrevocable – so why not just look to the future and not let it happen again?


Life is not like that. The law looks backwards so that it won’t happen again – or, at least, that the chances that it will happen again are reduced. To wax philosophical for a moment: We live in time and there is continuity between the past, present and future.


With all of the advantages of power – especially secrecy – what are the incentives to keep the State in line? We have laws and treaty obligations. When they are violated, is it enough that those guilty merely be subject to public disapproval? We cannot vote Bush out of office. We cannot now impeach him. We cannot convict him in a trial before the Senate. Any Administration can avoid all of these things by keeping things covered up until they are out of office. So the incentive to secrecy is great. The power is there to accomplish it. So the “political system” can be prevented from doing its job of disciplining office holders.


So now what? If the Constitution and our laws have worth beyond the papers they are written on, there must be consequences. There must be investigations and prosecutions if warranted. There is no other option that can make the system honest.


People will say that there have been worse crimes than possibly approving torture, illegal wiretapping, etc. For example, there was the fire-bombing of Dresden during the Second World War – an act without justification except vengeance. (And I have not mentioned Harry Truman deeds.) But this is just evidence of what the government is capable of where there are no consequences.


More relevantly, there is the objection that an inquiry into the Bush Administration actions will split the country and cause unrest. My answer is simple. Americans need to know what went on if they are going to control their government in the future. If people argue about what the government has done and whether it was justified, then that is all to the good. It will take the place of discussions about Michelle Obama’s dresses, the first-dog, etc.


Finally, if we expose what was done and it is bad, then that exposure will give “ammunition” to our enemies.  First, the enemies almost certainly know more than the American people. (Perhaps they read the Washington Post or New York Times.) Second, we have bigger fish to fry: the integrity of our system of government. We can survive terrorist acts but we cannot survive the collapse of the rule of law. Third, we would not be simply exposing what when on but punishing it when appropriate. This is loyalty to great ideals. The world will notice.

Ron Paul dropped from FOX Sponsored Debate

It may come as no shock that Ron Paul has been excluded from the upcoming presidential debate in New Hampshire sponsored by FOX News. They said the “trailer” where they plan to hold the debate was not big enough to fit all the candidates. (However, Ron Paul is a fairly small man, physically.) So they decided to exclude two candidate whose poll showings were not sufficient — yes, all before any real vote is cast. The link below gives the details. The real issue, however, is whether any candidate should be omitted from the debate. After all, the point of having various candidates present is not simply to give people a chance to decide on the candidate to vote for but to raise issues. Is it not newsworthy that the Republican Party has abandoned its traditional concern for individual liberty,  small government and Constitutional limits? Who but Ron Paul will raise this issue? When news organizations show little regard for exposing people to ideas they don’t already know they are not fulfilling their responsibilities. The idea of news is NEW information — not the same recycled garbage about who is running negative ads and so forth.

Political Circus

The Republican Presidential Debate on Sunday as moderated by George Stephanopoulos was yet another attempt by the media to manipulate further the already-manipulated American public. It started off with outrageous introductions that revealed the implied framework of the debate. Each candidate was introduced with his Iowa poll numbers and in order of those numbers. What was the point of this? A debate should be an exchange of ideas weighted by the quality of those ideas. But no, Stephanopoulos knows better. He knows that people should not pay much attention to ideas that come from candidates who “cannot win.” But perhaps the reason some candidates cannot win is because the media doesn’t treat their ideas with respect. But no matter. Good ideas can affect the positions of candidates who “can win.” They can affect the nature of the debate. My sympathies are with Ron Paul, of course. Isn’t it intrinsically interesting that there are conservatives in this country who think that Bush’s Iraq War policy, War on Terror, and related civil liberties record are a disaster? People such as Paul Craig Roberts, Bruce Fein, Bob Barr and others who have made appearances on Ron Paul has a lot to say about this kind of “conservatism.” Shouldn’t debates be about learning something you don’t already know? Why was Paul given so little time and then rushed when he received a few seconds to talk? Stephanopoulos had an opportunity to do something useful on Sunday. Instead he just created a political circus.

The Presumption of Peace

This originally ran on this blog right after Randy Barnett’s article in the WSJ came out. It was pulled to make sure the letter would be published in the paper. Now that a severely edited version has been, here is the original:

Randy Barnett argues (“Libertarians and the War,” July 17) that libertarianism does not imply any particular stance toward the Iraq War. He contends that as long as the U.S. government is delegated the task of protecting the American people from foreign aggression of one sort or another, there could be a reasonable libertarian argument in favor of the war – or, at least in favor of some proper management of the war.

As with most sophistic arguments there is a kernel of truth here. There is some configuration of facts that can, within libertarian principles, justify an attack on another country including Iraq. Nevertheless, Barnett does grave injury to the classical liberal and libertarian tradition by ignoring its strong Presumption of Peace.

In his trenchant analysis of America’s entry into the First World War, Randolph Bourne captured the essence of the classical liberal critique of war: “War is the health of the State….The citizen throws off his contempt and indifference to Government, identifies himself with its purposes…and the State once more walks, an august presence, through the imaginations of men.” This pervasive effect of war was stressed by the nineteenth century libertarian Herbert Spencer who saw the evolution of society as a conflict between the peaceful voluntary structures of industrial society and the regimentation and bias toward state action inherent in war and militarism. War is a both an activity and frame of mind that values conformity and the acceptance of orders over the primacy of the individual. This is the primary cost of war.

Of course, no classical liberal objects to self-defense. But where was the evidence of the threat from Iraq? We all now know that the “evidence” was unforgivably poor. The real motivation was regime change in the hope of making the Middle East more amenable to particular foreign policy goals. Furthermore, the U.S. government, as a signer of the U.N. Charter, had no authorization to invade, regardless of Saddam’s resistance to inspections. The immediate defense of the nation was not at stake so the “right” of every nation to self-defense cannot be honestly invoked. And to say, as some have, that the present disastrous consequences of the invasion were not reasonably foreseeable makes a mockery of foreign policy expertise.

Can libertarians of good will disagree with the above? Perhaps. But an adequate libertarian case for war in Iraq would have to overcome the heavy burden imposed by the Presumption of Peace. No libertarian I know or heard of has even begun this task.