Libya and the Rule of Law

Frank H. Knight had an important insight about economics. Howsoever we may seek to narrow it, the basic human interests that make the subject important lie at the intersection of ethics, the theory of knowledge, and psychology (at least in a broad sense). Friedrich Hayek was also right to think that the insights of law and the insights of economics can be mutually beneficial.

Classical liberalism, however, is not simply economics even in a broadened sense. It is a philosophy about the limits to state power and action even when the goals are alleged to be good or holy. Classical liberalism, as Hayek taught us, is about appropriate means and not simply about the desirability of ends.

ThinkMarkets is vitally concerned with economics, it is true, but also more generally with classical liberalism and it application to real-world problems. Accordingly, one of the main concerns of this blog has been the rule of law (albeit applied mostly to issues of economic policy).  Another important concern has been the slippery slope processes that get policy-makers and, more importantly, the public into situations that are unforeseen and undesirable.

This brings me to the Libya question. Although there are aspects of the decision of the Obama administration to lead the US and NATO in bombing Libya and establishing a “no-fly zone” that are beyond my specialized competence, the issue is not a narrow one. Legalistic discussions aside, there is much that is profoundly disturbing to a classical liberal in this venture.

Some observations:

1. The mission of NATO has changed from the days when the NATO Treaty was ratified by the US Senate. Even a cursory reading of the treaty and of the debate at the time will tell us that it was about joining forces to prevent an armed attack on the member nations, almost exclusively by the Soviet Union. The Soviet Union no longer exists. More importantly, no NATO nation was in danger of armed attack by Libya. We also have it on Secretary of Defense Robert Gates’s authority that the situation in Libya is not one in the “vital national interest.” Therefore, it seems to me that stripped of mumbo-jumbo there is no legal basis for the US engaging in a “humanitarian” bombing with NATO forces. (I should also add that it seems reasonable that with the change in mission a new NATO Treaty should have been submitted to the Senate for ratification. I fully understand how inconvenient for American foreign policy this would be. But should law follow convenience needs of a certain policy?)

2.  The willingness of the US to intervene in Libya, but not in other places in which there are great “humanitarian” issues, will take scholars a while to interpret fully. Yet it seems clear that the current policy is an attempt to demonstrate to the Arab world that all of the previous US intervention (selling arms, financial aid and so forth) to prop up tyrannical governments was somehow an aberration. Truly, some will say, the US is on the side of the long-suffering masses in the region. Libya is a convenient place to make that demonstration. So the previous (and current) policies supporting those tyrannical states that are useful to US foreign policy provide the basis for the further “remedial” intervention. However, if the results prove to be less than an improvement, the Arab world will know who to blame.

3. The US claims that the League of Arab Nations is with the US. They and many European countries “requested” that the US go in. We will never know what actually happened in the private discussions. However, I was very impressed when a representative of the Egyptian government (what is that right now?) said that Egypt will not participate in the initial bombing because it would be inappropriate for an Arab government to kill Arab civilians accidentally. (How tribalistic, and how clever if things go wrong later.) So let NATO kill them and bear the consequences.

4. The constant refrain about a “humanitarian” mission to save civilians (or is it to save former civilians who are now rebel soldiers?) is a travesty of any real notion of beneficence. In the first place, a state is not like an individual who can, and sometimes should, act spontaneously and gratuitously, to help others. The state, begotten of aggression and by aggression (Herbert Spencer), has a legal monopoly on the use of force and must always be constrained by legal obstacles. The idea of ad hoc humanitarian action flies in the face of the rule of law. It is, instead, the rule of men who claim that they have the purest of motives. Pure motives (impossible to ascertain in the case of states) are not a substitute for rules. In the absence of direct aggression again the US, a credible threat against the US, or even a “vital” national interest, where is the justification to bypass Congressional authorization? The Congressional power to declare war appears to mean nothing. The circumstances in which our bloated Executive will admit to the requirement of Congressional approval appear to be of academic interest only – if even that. We are told consultation with Congress is optional and is just about building political support.

5. The difficulty with using the putative humanitarian character of ends as a justification for foreign military intervention is that US voters are not in a position to know to what extent this is the real reason. One can always find “humanitarian” justifications for involvement in a war. Wars kill people, including civilians. Those who seek international power, control, and influence – for whatever reason – pure, naïve or corrupt – are in the position to paint picture they want. How can the understandably ignorant figure out what is really going on and exercise meaningful control?

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