December 21, 2005

Toward a Concert of Civilizations

A recent post on the Spectator blog had some useful observations on the attitude among the chattering classes of the UK on international law. The post said in part:

In the last few weeks, there have been three connected events relating to the issues of terrorism, torture, and international law.
 
(1) On 2 November, the Washington Post carried on page one a story based on an extensive leak from senior CIA officers detailing a covert system of prisons including in Europe for the purposes of interrogating high level terrorist suspects. Interrogation included the practise of “waterboarding” in which X is made to think he is being drowned. Supposedly, top Al Qaeda operatives, including Khalid Sheikh Mohammed, one of the handful of key architects of 9/11, have been subjected to this technique. This story has prompted weeks of media coverage of the issue of how America holds and transports terrorists, including transporting them to and via the EU. (NB. It is notable that despite the large numbers of leaks from and concerning the CIA, it has only pursued the one involving the White House.)
 
(2) On Tuesday, Lord Steyn, a Law Lord, said that members of the British Government are potentially liable for trial as “war criminals” if they were “aware” that flights transporting suspected terrorists to “black sites” for torture were using British airports.
 
(3) Yesterday, the House of Lords published their judgement on the question of the admissibility of evidence against those foreign nationals held under the special anti-terrorism legislation.
 
Because of Britain’s political culture, debate over such issues, entangled with debate over the wisdom if invading Iraq, is dominated by the philosophy that “international law” trumps national sovereignty, that nation states have to be overcome, and that America is a net bad force in the world because it represents (a) free markets and (b) a strong nation state prepared to rejected European notions of “international law”. This philosophy is entrenched by the state broadcaster, the BBC, and by limits on free speech in the Political Parties Elections & Referendums Act (2000) and is so culturally dominant that it has successfully assimilated or neutralised large numbers of supposedly Conservative MPs who are either useful idiots for the BBC or cowed (and sometimes incompetent) dissenters. (The sanctimonious narcissism of the British media was illustrated by how they repeatedly led the news during the invasion of the Iraq with stories of journalists being killed, as if that were the significant event of the day.)
 
Given that the British Right does not exist in any politically significant form outside the Conservative Party, this means there is no institution to oppose the BBC mentality. Although Blair has ironically fallen foul of the Establishment despite strong general agreement, his spotty attempts at resistance have been swamped. In such an environment, sensible discussion of issues such as terrorism is impossible.

This leads to an interesting question. Why should international law be considered superior to the national law of a democratic, constitutonal state with a well-defined concept of human rights and a well-established track record of popular support for the same? In answering this, it's useful to clarify assumptions about why various kinds of states exist, and what is the nature of the rule sets governing relations within them (i.e., the province of national law) and between them (i.e., that of international law). Can the metaphor of law, that is to say national law, even be extended usefully to cover the rules governing behavior between states?

Ronald Coase famous illuminated the nature of the corporation and the role of transaction costs in economic relations by asking the simple question "Why does the firm exist"? If, as generally understood, market mechanisms are efficient means of allocating economic resources, why are they not used to allocate resources within the firm? In actual fact, market-based alternatives to the firm were legally available throughout the period of the firm's rise, yes the firm emerged as the organizational form of choice for almost all business activities. Coase theorized that the firm's role was to act as a zone within the wider matrix of market relations in which the transaction costs imposed by use of market mechanisms (for example, the time and attention required to negotiate or auction use of resources) were avoided by use of other means (rule-based allocation, direct management allocation, or some combination thereof).

Can similar insights and understandings about the nature of the nation and nation-state be obtained through asking "Why does the nation exist?" in a Coasean vein.

Let's examine the possibility that such might be the case. Just as the firm may be viewed as a zone of non-market relations within a wider framework of market relations, in which transaction costs are locally minimized, the nation-state may be viewed as a zone within a wider framework of negotiated relations (i.e., international space) in which transaction costs are sufficiently minimized to permit market relations to flow efficiently. Thus, three scales of endeavor, and their respective regimes, can be thought about: The firm scale, in which relationships are sufficiently localized to permit individual management allocation or rule-based allocation of resources; the national scale, in which relationships are too generalized and decentralized to permit individual allocations or rule-based allocations to act efficiently, but in which the role of the state as generic framework setter and enforcer permits market transactions to flow with tolerable transaction costs; and the international scale, in which interactions are fundamentally anarchic (while mediated by partially effective reciprocal agreements and minimal international standards and practices) and in which nations exist as local zones of lower transaction costs. Because the total number of international zones or actors are quite finite, resources and relations between nations can be managed by negotiation.

The key to this tripartite scheme of relational frameworks is the problem of knowledge as it affects transaction costs, and the effects of scale on the desirability of various types of relations. In small permanent groups of people, where the personalities and histories of the individual actors are well-known to all, negotiation and individual judgement permit a relatively efficient and satisfactory resolution to most disputes. Even rule-based systems (as in corporate bureaucracies) can be tempered and made to work effectively by good judgement, which accounts for the high value placed on managers with good judgement and interpersonal skills. At some size of unit, or velocity of turnover, this system breaks down and the inability of such managers to know people sufficiently well prevents effective management. Particularly in political systems, where the solution of dismissal is not readily available, tools for dealing with the problem of information stochastically begin to offer more effective solutions. Thus, mechanisms such as the unanimous jury trial or the exclusionary rule, which tolerate some imperfection of outcome, are preferred because on average they produce better results than purely rule-based or personality-based systems.

Thus the state as an institution becomes a framework for creating a zone in which transaction costs are higher compared to those in a smaller group, such as a firm, but lower than a global-scale regime in which there are insufficient commonalties of understanding of rules to permit state institutions to effectively lower transaction costs of adjudication and recourse. Understood thus, we can then examine types of states: nations, empires, and multinational confederations, with the objective of determining which type most effectively lowers transaction costs in its internal areas. Because of the substantial transaction costs historically imposed by language and culture, the initial hypothesis is that nations that are relatively homogenous in these regards have historically enjoyed fewer internal transaction costs, and thus have proven more competitive than other state forms. This may form an explanation for the dominance of the nation-state as an institution over the past four centuries. Various types of states typically categorized together as "nation-states" will also be differentiated, such as the organic or "Herderian" concept of the nation as opposed to the looser "Anglo-Saxon" concept of the state, sometimes (inaccurately) known as the "night-watchman" state, but which is more accurately called a state-nation.

Finally, this analytical framework, if validated, has potentially important consequences for international law and the search for peace, order, and prosperity on a global scale. Since at least the Renaissance, two opposed ideas of international order have been contending in Western (and now global) thought. One is the traditional or Westphalian schema of sovereign and independent states (now with an institutional bias toward nation-states) linked by an international law that is fundamentally a set of heuristics or rough rules of thumb for guiding international actions, a sort of mitigated anarchy, and the other is the vision of an enforceable international law with some form of collective sovereign. The latter vision essentially takes the mechanisms used internally within states, and attempts to apply them to enforcing decisions on states, with the ultimate goal of using the transaction-cost reduction mechanisms at national scale to create a uniform and global transaction-cost reduction zone. The questions of scales of actions and transaction costs will be used to evaluate the applicability of both systems. The critical question is whether nations should be treated as actors within each of which different sets of understanding prevail, (and in which case we are thus we are dealing with an international system having perhaps two or three hundred actors) or whether nations become essentially administrative adjuncts whose populations collectively follow a single set of rules and understandings.

Even if the former assumption remains true, an international order is not precluded. However, it would be an international order founded firmly on the idea that nations remain the collective boundaries of transaction-cost reduction areas, and that the scale of international relations, negotiation and individual knowledge (in this instance, of national officials) remain the primary tool for resolution of questions. In particular, the small number of actors suggests that stochastic solutions (such as rules of procedure used in criminal trials) remain inappropriate for international action, because the actors cannot tolerate the costs of such a framework. A city of a million people can tolerate the acquittal of some number of burglars on procedural grounds, but a community of, say, one hundred cannot permit a known thief to remain among them without consequence, and typically, one or another informal solution is found to deal with such a situation. The case of one genocidal aggressor remaining in power in a world of two hundred sovereigns is more akin to the latter case than the former, I would suggest.

What is of interest is the examination of various systems by which transaction costs are broken down across state borders short of a universal solution. In particular, the question of how nations with very similar internal means of transaction-cost lowering can create bilateral or multilateral structures for creating a merged zone of transaction-cost reduction without fully merging the nations in question is of interest, and may hold the key to the basis of an effective international order that resolves problems never adequately addressed by the Westphalian system, but without the very problematic issues raised by the various Kantian systems of universal jurisdiction. We should explore such an order, with the ultimate goal of, rather than a universal government, a "Concert of Civilizations" in which the various national and civilizational means of transaction-cost reduction are gradually bridged by international collaborative and cooperative structures, many of which could have roots in existing institutions such as free-trade areas.

We should not be forced to choose between a universal legal system of personal jurisdiction based, not upon the consensus of a particular society and its history (as there is no such consensus on a glabal basis), or a cynical and amoral international order in which the sacredness of national borders is the only rule. I believe another solution is both possible and desirable. At the moments, the Hegelian proponents of a global order have the upper hand in the perceptions of many, as the Spectator post discloses. There is a need for an active alternative to that concept of order, which is fundamentally anti-democratic and subversive of freedom and self-determination. A Concert of Civilizations is such an alternative.

Posted by James C. Bennett at December 21, 2005 06:20 PM
Comments

My chief concern about calling the Iraq war "illegal", which translates also to the question of prosecuting British officials over torture, is that only democractic leaders operate within the law. Saddam Hussein operated above the law in his own juristiction and therefore could not be prosecuted for his crimes. Thus, trying to implement the same laws for the US, Britain and Iraq in this manner is frutiless.

Moreover, the security council does not operate within the common law (i.e. the war was not made legal but it was never declared illegal) so why should common law countries be expected to abide by a legal system different to their own?

That said, I agree with you on the benefits of breaking down transaction costs between similar nations.

I think it is time for governments to start returning sovereignty to the people (who in a democracy are supposedly sovereign). Thus the freedom to trade and to move freely across borders would be returned to the people, at the cost of the nation's right to control borders. Nations would have to derive their power from fluid, sovereign populations. I belive this is similar, or at least complementary, to your idea of a Concert of Civillisations.

Posted by: mark at December 22, 2005 04:57 AM

"Given that the British Right does not exist in any politically significant form outside the Conservative Party"

It doesn't exist inside the Conservative party, either, which is a Socialist party in all but name.

Posted by: rich at December 22, 2005 08:19 AM

I may be old-fashioned, but ultimate sovereignty resides with the People (capital-P) manifested through the Constitution...be it written like the the Consitution of the United States, or colloquial like that of Great Britain. That "International Law" in some-way trumps this ancient concept stikes in my craw....

International Law should govern the relationships between soveriegn states, but not over it's peoples (small-p). That the UN should preen and posture as a supra-national "government" is contemptible. And the concept that a US soldier, civilian NGO-operative or governmental official be areested and tried before the bar of the ICC should be met with a USMC Strike Force exercising "extreme prejudice". For the Britsh, they have already ceded partial-sovereignty to the EU where they have internal legal-protections. Something not-true with the UN-organized courts or the ICC wher ethere is not track-record of fairness, equity or accountability....or jury by one's peers.

If it's "legal" in the US or in Britain; that should be the end of the arguement as far as legal-sanctions go. The idea that one can lose "Rights" under International Law is unacceptable....otherwise it implies that your own State may deprive you of your "Rights" simply by delivering your into the "benevolent" hands of foreigners....especially if the "crimes" are political; i.e. "war crimes" and "torture" and "crimes against Humanity".

Posted by: Ted B. at December 22, 2005 02:57 PM

James:
How about this for an argument: International law is similar to the common law which codifies practices among nations because
1) the practices are public
2) unequivocal
3) regarded as law by the participants
As to why some think that international law trumps national soverignity, it's an évolution d'espirit. Certain state actions qua sovereign states offend the consenus juris and are are ultra vires (by reason of absuing power)or offend human dignity, etc
In the case of democratic states with rule of law, this consensus juris is easily accepted since they share a common conception of law, human right civic audit, political accountability, etc despite the variation (i.e. civil and commmon law; presidential and parlimentary regimes etc)
The problem is one of ambition: trying to impose the consensus juris on countries that don't share the common culture. Also within the democratic countries, international law is used as an excuse to cripple effective state sovereignity to advance an ideological platform without the benefit of submitting it to the citizens to argue about various political issued and work out a domestic modus vivendi.
Just to state my bias: I do think that on some issues like war, torture and human rights, international law can trump state soverignity but the justification is still incohate- that's where the hedgehog can be very helpful to the fox. We need a modern day Grotius or Vitoria.

Posted by: xavier at December 22, 2005 07:28 PM

James,

This is a very interesting piece, and one I intend to draw attention to.

However, there's a couple of typos that detract from the flow:

First paragraph: internatioanl

Paragraph 8 (i.e. the first one after the extended quote): concept off should be concept of

Paragraph 13: those in a smaller group, such as a form; the last word should be firm

Posted by: Kirk Parker at December 22, 2005 09:33 PM

These are interesting questions that prompt two observations.

First, firms do exist externally as actors that engage in buying and selling and internally as non-market relationships. But I wonder if trust is essential to both. My impression is that in the larger firms the reduced radius of trust (how well everyone knows everyone else) is less important than how well individuals in the firm can trust the small number of other people they need to deal with inside the firm or in the chain of supply and distribution. The trust that persuades someone to become a repeat customer of a firm and the trust that enables people to work together to keep customers coming back seem to me analogous things.

Second, international systems are a function of the technology of the time. In the last century, some of the larger regimes on the planet acquired the technical means to threaten everyone else with annihilation. What seems to be the trend of the century we now inhabit is that the size of regime capable of posing such a threat may be getting smaller, and if present trends continue private groups may acquire the destructive power formerly available only to governments. The real case for a confederation of civilizations may not be as a means to prevent a more intense form of top-down global control but as a means to prevent the need for such control from arising in the first place, by transforming civilization itself.

Posted by: David Billington at December 23, 2005 12:34 AM

Xavier,

The major way that international law is different to common law is that it is not applied equally to all. As this is the fundamental basis of the common law I cannot agree that the two can be considered similar.

You recognise the problem to some extent by mentioning the problem of applying laws to diffeent cultures. I suppose it depends on what you include within the definition of culture but I think the problem goes beyond that. Different legal traditions lead to the same laws being applied differently in some countries than in others.

The extreme example of this is that which I cited before, where a dictator like Saddam Hussein is above the law but a democratically elected leader is not. However it also applies to the differences in the way law is applied between France and Britain. Despite having agreed to the same treaties as France, the British government is more tied if it wants to deport immigrants suspected of being a threat to nation security than the French government.

I agree with Ted, sovereignty resides with the people and international law should be restricted to governing the relationships between states. I would add that it should act as a gentleman's agreement, where those who break it may become pariahs at the very worst, rather than a set of enforcable laws.

Posted by: mark at December 23, 2005 06:15 AM

Mark,

I would add that it should act as a gentleman's agreement, where those who break it may become pariahs at the very worst, rather than a set of enforcable laws.

Isn't that pretty much already how it works--other than the fact that our standard for when somebody becomes a pariah (*cough* Mugabe *cough*) is way to low? Absent a serious enforcement mechanism, I don't see how it could be any other way.

And sure, I suppose Kofi would like the UN to be that enforcement mechanism. Bu until it's no longer true that the Tacoma Police Department (or the hypothetical "Concerned Citizens of University Place") could easily chase off the Blue Helmets, that's about as likely as open, transparent accounting at Turtle Beach. (Note to Mr Anan: when it's time to send out troops to suppress our self-determinist tendencies, could you please send Belgians? Their performance in Rwanda was stellar.)

Posted by: Kirk Parker at December 23, 2005 10:17 AM

I would like an end to chitchat about this leftis, tranzi, mythical "international law". International law, if it exists at all (and there are clever actual real-life lawyers blogging here so I'd better watch my step) is simply a body of treaties that countries have signed between themselves because it suited them to do so at a particular moment.

Countries renege on treaties all the time.

Unlike civilian legal arrangements that are contracted under a real jurisdiction, there's not a lot the abandoned party can do if a country decides to walk away from a treaty. At least, not now there's no longer gunboat diplomacy.

I suggest we keep it this way and not encourage tranzi infestations on our lawbooks.

Posted by: Verity at December 24, 2005 05:19 PM

Kirk,

Yes that is how it works in practice, mostly. However, there is an element that want to make it enforceable. A while ago a group of indivduals attacked a UK nuclear submarine base in Scotland and were released because their argument, that the base was illegal under international law, stood up in court. Given the increasing level of judicial activism in the US and UK, I think we ought to be ready to defend the status quo.

Posted by: mark at December 25, 2005 02:13 PM
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