Innumerable as the Starrs of Night,
Or Starrs of Morning,
Dew-drops, which the Sun
on every leaf and every flouer
Beauty is truth, truth beauty,
— that is all
Ye know on earth, and all
ye need to know.
E = M
Energy is eternal delight.
Impearls: 2003-09-28 Archive
I quite love Winston Churchill's — yes, that Winston Churchill (as Zero Mostel put it in A Funny Thing Happened on the Way to the Forum: “the the himself!”) — History of the English-Speaking Peoples; nor am I alone in this judgment, despite its four-volume girth. 1 Renowned American historian Henry Steele Commager so liked the work that he arranged a one-volume condensation of it, to bring Churchill's history closer to the American people. 2 (While H. S. Commager's edition is very worthwhile in its own right, I do recommend Churchill's unabridged version, if you have the time. My personal feeling is that Churchill wrote so well that the four volumes go by far too quickly.)
As an insightful and history-making British parliamentarian, Churchill brought a unique viewpoint to his subsequent role as historian, laying out the common story leading to the present diaspora of English-speaking peoples round the world, as well as considering the origins and development of the English-speaking peoples' governing principles, which in my view hold a key to worldwide freedom and liberty in the modern age. His history also has an excellent portrayal of the American Civil War, by the way.
I was thinking of Churchill's History while pondering Eugene Volokh's recent post on European prosecutions of U.S. soldiers. 3 Many people writing on this subject portray it as a national sovereignty issue. While I believe this approach has merit, I'd like to take a slightly different point of view: whether the institutions of many, even supposedly ”advanced,” national governments and international agencies are “mature” enough — in the human rights and robust republican institutions sense — to warrant deferring to or surrendering national sovereignty in lieu of. Part of the problem I believe may be that many such national and international organizations are established using naive Roman law institutional strictures.
The best exposition of this of which I'm aware is to be found way back in the Medieval section of Winston Churchill's history. The initial paragraph quoted below provides context some legal aficionados may find interesting, otherwise skip it.
Considering these “sinister dangers,” it's clear from an article last year in the New York Times, “Russia Glances to the West for Its New Legal Code,” that Russia, for one, as an inheritor of the old Roman law system, has lagged far behind in its judicial development. As the full article states, with regard to preparations for introduction of a new legal code in Russia: 4
The question is how much legal systems of supposedly “advanced” western countries such as France, Germany, or say Belgium still retain vestiges of old Roman law practices within their own legal codes, and which thus may also be retained by international organizations, such as the International Criminal Court. Certainly the antics of judges in Roman-law countries such as Spain does not inspire confidence that such systemic structural injustices are merely vestigial across western European countries in general.
Looking at the overall structure of the International Criminal Court, it does appear that an effort is being made there to establish the prosecutorial function as independent of the “judgmental,” if that's the proper way of putting it. Even though the ICC does seem to be avoiding the Roman law trap whereby judges effectively act as prosecutor and jury in cases which appear before them, other issues inherent in the court appear to pose strong drawbacks to the real interests of justice in a democratic world society. As the above page on ICC web site makes clear, principal judge selection criteria for the court are described as “[t]he representation of the principal legal systems of the world,” and “equitable geographical representation.” Despite the oh-so multicultural and politically correct ring to them, these principles would appear potentially worrisome. The fact is that most legal systems which have developed round the world have no interest or tradition in human rights or the individual, not to speak of republican institutions, at all.
The ICC's write-up has much fine talk about the “principle of complementarity” (see here and here, wherein it declares, for example, that “the Court itself is but a last resort for bringing justice to the victims,”), and then goes on to say: 5
Despite this, the complementarity principle seems ultimately to be more directed at forcing coordination and compliance by the “States Parties” to the agreement (which I would think in the case of the U.S. would require Constitutional changes) than, despite all its talk, actually restricting the ICC Prosecutor from authorizing legal action against persons in states having robust legal systems of their own. In other words, this principle appears more closely related to the EU's approach to forcing “coordination” between member States and the EU regulatory system than to, say, any federal relationship between states of the U.S. and the American government.
As Mark Steyn memorably put it in his article “Convergence Criteria” published back in 1996 (I'll quote quite a bit of it, as I lack a functioning link to the piece to provide): 6
So long as other nations' and international institutions lack such seemingly basic (but actually, historically, almost uniquely ”Anglo”) human rights together with republican safeguards, nations possessing superior standards along these lines should guard their sovereign rights jealously.
2 Churchill's History of the English-Speaking Peoples, arranged for one volume by Henry Steele Commager, Barnes & Noble Books, New York, ISBN 0-56619-545-4 (hardcover), ISBN 0-56619-813-5 (paperback), 1995.
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