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Martin van Creveld opens the Strategy Conference…..

“Law stands mute in the midst of arms. “ – Marcus Tullius Cicero

“Bad laws are the worst form of tyranny” – Edmund Burke

“Make them bow their heads under the yoke of the law” – Russian proverb

Frequent commenter Schmedlap, who has a fine blog of his own, asked his readers a very important question:

Today a smart, well-traveled, experienced, knowledgeable guy was telling me that “rule of law” is a concept that we need to stop worrying about. Strongly disagreeing, I asked why. After he explained why, it became clear that he was working with a significantly different definition of “rule of law” than I knew of. It reminded me of recent discussions here and elsewhere over definitions of culture, torture, and terrorism. Given his definition of “rule of law” I agreed that it is not something that we need to worry about. If “rule of law” = his definition, then rule of law is not important. If “rule of law” = my definition, then rule of law is important.

Just curious, what is your understanding of what “rule of law” means?

I attempted to leave a comment, using a Google Chrome browser, but it failed to “stick”, so I will pontificate in my usual, windy, fashion here instead.

The Anglo-American tradition of “rule of law” is distinct from that of continental Europe or Confucianist traditions in Asia, both of which are primarily concerned in different ways with the health of the state. Anglo-American “rule of law” has been an evolutionary – and sometimes revolutionary – march to constrain the exercise of arbitrary power and, eventually, assure an egalitarian access to justice. When Norman French-speaking King John of England bitterly complained at Runnymede that the English barons might as well demand his crown, he was right. The Magna Carta was intended to curb John’s capricious tyranny with formal rules governing how and when the King could exercise power against whom.

As national monarchies coalesced out of bastard feudalism’s kingdoms and medieval principalities in the fifteenth and sixteenth centuries, the Kings propagated a theory of divine right absolutism, which to our ears seems despotic, but to a sophisticated and wealthy, emerging, European bourgeoisie at that time, sounded like music. Better living under predictable, “national” laws and a King far away than a patchwork of greedy, grasping and unpredictable nobles who were ever close at hand. That same, rational, middle-class political sentiment though, soon found fault with even Enlightened absolutism.

Lord Chief Justice Sir Edward Coke, a great man to whom much is owed, but who today is largely forgotten, was the great theorist and defender of judicial independence and common law from the whims of a sovereign. Without judicial independence, the rule of law is hardly possible because it is ultimately inseparable from the executive power; Coke was instrumental in moving elite Englishmen’s minds from accepting “Rex lex” (“The King is Law”) to demanding “Lex rex” (“The Law is king”).

The matter was not formally settled with the English Civil War, which came not long after Coke’s death, or even the Glorious Revolution of 1688; nor the American Revolution of 1776 or even at Appomattox Courthouse.  “The rule of law” is an ongoing struggle that must be constantly renewed by an active and vigilant citizenry if it is to be sustained.

There’s an academic-Left kook element of no small size among international law NGO activists. These folks see themselves as a secular, international relations, Ulema, able to issue press release “fatwas” that are supposedly binding but in reality, have no legal basis in anything except their own imaginations.

Naturally, such an unserious intellectual position eventually leads them into bizarre and frivolous wastes of time.

Can Video Games Turn You Into a War Criminal?

….According to a new study by two Swiss human rights groups, TRIAL and Pro Juventute, many combat-heavy games actively encourage players to kill injured soldiers, attack civilians and destroy churches and mosques. As satisfying as these actions might be for players, they flagrantly violate real-life criminal and humanitarian law.

The organizations reached this guilty verdict with the help of three attorneys, who watched gamers blast their way through 19 titles, including recent hits like “Call of Duty 4,” “Army of Two” and “Metal Gear Solid 4.” Each time a player flouted the Geneva Convention or another international treaty, the legal team took note.

Their final report reads like Radovan Karadzic’s rap sheet. “Call of Duty 4,” a first-person shooter set in Russia and the Middle East, is accused of allowing gamers to “attack civilian buildings with no limits in order to get rid of all the enemies present in the town who are on roof tops … Under [International Humanitarian Law], the fact that combatants/fighters are present in a town does not make the entire town a military objective.”

Cluelessness is a closed system.

Matt Armstrong delivers an on-target op-ed in Foreign Policy:

Censoring the Voice of America

Earlier this year, a community radio station in Minneapolis asked Voice of America (VOA) for permission to retransmit its news coverage on the increasingly volatile situation in Somalia. The VOA audio files it requested were freely available online without copyright or any licensing requirements. The radio station’s intentions were simple enough: Producers hoped to offer an informative, Somali-language alternative to the terrorist propaganda that is streaming into Minneapolis, where the United States’ largest Somali community resides. Over the last year or more, al-Shabab, an al Qaeda linked Somali militia, has successfully recruited two dozen or more Somali-Americans to return home and fight. The radio station was grasping for a remedy.

It all seemed straightforward enough until VOA turned down the request for the Somali-language programming. In the United States, airing a program produced by a U.S. public diplomacy radio or television station such as VOA is illegal. Oddly, though, airing similar programs produced by foreign governments — or even terrorist groups — is not. As a result, the same professional journalists, editors, and public diplomacy officers whom we trust to inform and engage the world are considered more threatening to Americans than terrorist propaganda — like the stuff pouring into Minneapolis.

Read the rest here.

Amen, brother!

As I mentioned previously, CTLab is featuring a symposium this week on the Hamdan Tribunal with Professor Brian Glyn Williams  who testified as an expert witness, and an invited panel of legal scholars and academics ( including blogfriend/SWC member Dr. Marc Tyrell). This week begins with a five-part series on the tribunal itself by Dr. Williams. His posts, so far:

Defending Hamdan: The Capture and Defense of Bin Laden’s Driver

Defending Hamdan: On Ruffling Establishment Feathers

Defending Hamdan: Letter and Spirit of the Law