Page 1 of 5 123 ... LastLast
Results 1 to 20 of 84

Thread: Rule of Law in Iraq & Afghanistan

  1. #1
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Rule of Law in Iraq & Afghanistan

    Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

    We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

    Speech (17 pages in pdf)

    Slides (15 slides in pdf)

    Examples covered:

    •Responding to attacks from shrine in Najaf (Iraq)

    •Opening the Syria border crossing (Iraq)

    •Acting on reports of excessive force (Iraq & Afgh)

    •Funding local security efforts (Iraq & Afgh)

    •Adopting counterinsurgency theory (Afgh)

    •Fielding the rule of law in practice (Afgh)
    The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

    Those and other legal issues resaulted in:

    Third observation — in all of the examples, we had lawyers deployed with us who could help. I have not come close to exhausting all that operational lawyers must be, know, and do in modern U.S. military operations.

    They must be soldiers — physically fit to endure the rigors and stresses of combat while keeping a clear head, as well as able to navigate the area of operations, communicate using radios and field systems, and, when necessary, fire their assigned weapons.

    They must also be prepared, when called upon, to foster cooperation between local national judges and police, to plan and supervise the security and renovation of courthouses, to support the training of judges and clerks on case docketing and tracking, to establish public defenders’ offices, to set up anti-corruption commissions, to mentor local political leaders and their staffs, to explain governmental happenings on local radio and television, to develop mechanisms for vehicle registration.

    Because of their work ethic, creativity, intelligence, and common sense; because of their ability to think and write quickly, persuasively, and coherently; and because of their talent for helping leaders set the proper tone for disciplined and successful operations — I and other commanders tend to deploy as many field-capable lawyers as we can.

    The number of judge advocates in the 101st Airborne Division reached 29 under General Petraeus’s command. At the Multi-National Force-Iraq, a force of about 160,000, we had 670 uniformed legal personnel, including 330 operational lawyers — several of whom were great British and Australian judge advocates — and 340 paralegal specialists and sergeants. In Afghanistan, we have nearly 500 judge advocates and paralegal specialists.
    BG Martins' comments take us up to this week in Operational Law.

    Regards

    Mike
    Last edited by jmm99; 04-22-2011 at 02:28 AM.

  2. #2
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Operational Law - Early History

    Operational Law (not to be confused with the "Operational Level of War[fare]") goes back a couple of decades. A good rendition of its early history is "The Strategic Implications of Operational Law" (1995) (pdf attached below):

    Operational law is "[t]hat body of domestic, foreign, and international law that impacts specifically upon the activities of U.S. forces in war and operations other than war . . . It is a collection of diverse legal and military skills, focused on military operations. It includes military justice, administrative and civil law, legal assistance, claims, procurement law, national security law, fiscal law, and international law."[1]

    The term "operational law" was coined in the aftermath of Operation Urgent Fury in Grenada.[2] At that time, military lawyers at the United States Army Judge Advocate General's School began a reassessment of the legal advice and support due commanders.[3] The long-term result may be a profound change of direction in the practice of military law.[4] There is now an accelerating military professional interest in operational law that goes beyond the Army JAG Corps.[5] This growth in the stature of military operational law is a response to the same environmental factors that led to the development of the doctrinal rubric Operations Other Than War (OOTW).[6] An institutional phenomenon, operational law (like OOTW) reflects the changing nature of sovereignty, the increasing reach of legal norms into military affairs, and the great variety of missions assigned to military organizations.

    1. International and Operational Law Division, Operational Law Handbook (Charlottesville, Virginia: The Judge Advocate General's School, 1994), A-1. (The Operational Law Handbook is now used at the Judge Advocate General's School and at the Army War College in Carlisle, Pennsylvania as a text reference. At the War College it has replaced Theater Planning and Operations for Low Intensity Conflict Environments: A Practical Guide to Legal Considerations.).

    2. See David E. Graham, "Operational Law--A Concept Comes of Age," The Army Lawyer (July 1987): 9. "Lest there be any doubt, OPLAW is a new concept. It is not simply a modified form of international law, as traditionally practiced by Army judge advocates, dressed up in battle dress uniform and given a çatchy'name." Ibid; "By its nature, OPLAW transcends normally defined military legal disciplines and incorporates, for the first time in one legal regime, relevant substantive aspects of international law, criminal law, administrative law, and procurement-fiscal law." Ibid., 10.

    3. A foundation had already been laid within the Judge Advocate General academic community for the construction of operational law doctrine. Department of Defense Directive 5100.77 of 10 July 79 required all US forces to abide by the law of war. (In 1977, President Carter had signed the 1977 Protocols to the Geneva Conventions) As a result, the international law division of the JAG school gained status and positions, though the scope of interest remained fixed on law of war issues. Shortly before the Grenada intervention, Joint Chiefs of Staff Memoranda 59-83, of 1 June 83, (and a later memorandum--MJCS 0124-88, 4 Aug 88) required lawyers to provide advice on both restraint and the right to use force, and to assist in operational plans and orders. These instructions, as well as FORSCOM Message, Subject: Review of Operations Plans, 29 October, 1984, provided the official mandate on which operational law doctrine was developed.

    4. Although the Operational Law Handbook includes national security law as one of its elements, it is also correct to conclude that operational law is a practitioner bi-product of national security law. National security law has become a major area of legal study, like domestic law or tax law, that is individually recognized by the American Bar Association. Over eighty law schools in the United States now offer some course work in national security law. This body of legal study reflects legislation and court decisions that have shaped all aspects of national defense during the past half century. It is an area of study that involves scholars, policy makers, and legal practicioners well beyond those in military uniform. The development by military lawyers of military operational law doctrine was a unavoidable consequence of this larger academic movement. Rather than just relating operational law principles based on experiences from military deployments (although this is important), military legal faculty must prepare unit JAG officers to incorporate the lessons of national security law into their military practice. The future of military law is now tied in great measure to the evolution of national security law. The range of this discipline can be seen in the contents of one of the major national security law texts. See, e.g., John Norton Moore, et. al., National Security Law, (Durham, North Carolina: Carolina Academic Press, 1990). Materials in Moore's text cover 1200 pages in 28 chapters ranging from international conflict management to emergency preparedness.

    5. As part of its annual senior service college curriculum, The Army War College at Carlisle, Pennsylvania now offers a 30 hour advanced course to prospective senior officers and civilian leaders on legal aspects of defense and military decisions. At the Command and General Staff College at Ft. Leavenworth, Kansas, the follow-on generation of military leaders is now offered a 30-hour elective on operational law.

    6. See Headquarters, Department of the Army, Field Manual 100-5, Operations (Washington: U.S. Governmant Printing Office, 1993). FM 100-5 is a periodically updated capstone document for U.S. Army doctrine. This latest edition includes a chapter titled "Operations Other Than War" where a mission list is offered that includes: noncombatant evacuation operations, arms control, support to domestic civil authorities, humanitarian and disaster relief, security assistance, nation assistance, support to counterdrug operations, combatting terrorism, peacekeeping operations, peace enforcement, show of force, support for insurgencies and counterinsurgencies, and attacks and raids. The manual's glossary defines the term OOTW as "military activities during peacetime and conflict that do not necessarily involve armed clashes between two organized forces." FM 100-5 is more definite about what the Army feels OOTW are not . An OOTW apparently cannot be 'limited' war or 'general war,' although OOTW can occur simultaneously or within either of these. Limited war is an armed conflict short of general war, the example given being Operation Just Cause in December 1989 in Panama. General War is defined as "armed conflict among major powers in which the total resources of the belligerents are employed and survival is at stake." Ibid., 2-1. At the time of the writing of this article, a new Army Field Manual on Operations Other Than War was still in draft.
    After 15+ years, we (at least Polarbear1605 and jmm99) are still struggling with Rule of Law and Laws of War collisions in "OOTW".

    Regards

    Mike

    PS: in the pdf endnotes, you will find a reference by a then-younger field grade, who has since rose in his world:

    18. Mark Martins, Rules of Engagement for Land Forces: A Matter of Training, Not Lawyering (Master of Laws Thesis, The Judge Advocate General's School, United States Army, 1994).
    This has become something of a landmark for ROE analysis and training.
    Attached Files Attached Files
    Last edited by jmm99; 04-22-2011 at 02:34 AM.

  3. #3
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default The Mark Martins Astan Lawfare Posts

    BG Martins posted the following posts about "Lawfare" in Nov 2010 (all non-technical and worth consideration and thought):

    Lawfare in Afghanistan?

    Building the Rule of Law in Theory

    Building the Rule of Law in Practice

    Reflections on “Lawfare” and Related Terms

    Lawfare: So Are We Waging It?

    Bite-sized chewies.

    Regards

    Mike

  4. #4
    Council Member jcustis's Avatar
    Join Date
    Mar 2006
    Location
    SOCAL
    Posts
    2,151

    Default

    Quote Originally Posted by jmm99 View Post
    Given almost a decade of experience, some Lessons Learned can be and have been learned from those conflicts.

    We start with Rule of Law in Iraq and Afghanistan, by Mark Martins - Brigadier General, United States Army, Commander, Rule of Law Field Force, Afghanistan. J.D. , Harvard Law School, 1990 - Brig. Gen. Martins delivered these remarks as part of the Dean’s Distinguished Lecture Series at Harvard Law School on April 18, 2011, upon receiving the Harvard Law School Medal of Freedom.

    Speech (17 pages in pdf)

    Slides (15 slides in pdf)

    Examples covered:



    The examples cover not only the Rule of Law, but also the Laws of War (LOAC).

    Those and other legal issues resaulted in:



    BG Martins' comments take us up to this week in Operational Law.

    Regards

    Mike
    the staff judge advocate assigned to my battalion during my last deploy was everything mentioned that a military lawyer should be. He went at his mission with a passion, despite the walls and roadblocks that seemed to routinely appear from the elders and even the district governor himself. he plowed on nonetheless, until the very end. That takes passion for the trade.

  5. #5
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Nice to hear that,

    Jon. Perhaps your SJA was influenced by the attitude of the other field grades in the Bn.

    Just finished watching an old Sean Connery movie, The Hill (1965). I've never watched the whole thing before. It does pose some "Rule of Law" issues in a military confinement situation.

    Regards

    Mike

  6. #6
    Council Member jcustis's Avatar
    Join Date
    Mar 2006
    Location
    SOCAL
    Posts
    2,151

    Default



    He certainly earned his pay, and once he proved he could walk on water, I asked him to make multiple return trips.

  7. #7
    Banned
    Join Date
    Mar 2010
    Location
    Durban, South Africa
    Posts
    3,902

    Default

    Quote Originally Posted by jmm99 View Post
    BG Martins' comments take us up to this week in Operational Law.

    Regards

    Mike
    BG Martins is quoted as stating:

    Third observation — in all of the examples, we had lawyers deployed with us who could help.
    I ask in all sincerity if this is perhaps not the problem?

  8. #8
    Council Member LawVol's Avatar
    Join Date
    Jun 2006
    Location
    Kabul
    Posts
    339

    Default Linking Formal and Informal Justice Systems

    The Article here illustrates a problem for our Rule of Law effort. Although Afghanistan does have a history of formal justice, many parts of the country have relied on an informal system consisting of tribal jirgas or shuras.

    The formal system is seen as corrupt and impartial. There is some truth to this, but the issue with the informal system is that it often transgresses the Afghan Constitution and Afghanistan's commitments under international law. Just yesterday, I spoke with the Head of the Huquq in one of the provinces (the Huquq is sort of a clearinghouse for handling cases that can either mediate, assign to the jirga, or assign to the court). I asked him to explain how they ensure jirga decisions comply with Constitutional and international law. He ultimately conceded that such complaince took a back seat to public order. The ultimate goal of the jirga is harmony within or among villages. This cuts against traditional western notions of justice, but works for Afghans. The question becomes how much compliance do we require? Can we get by with less than complete compliance or must we sacrifice a functioning, but imperfect, justice system on the alter of idealism?

    Our own system of justice has been 236 years in the making (more if you count our English common law origins). Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  9. #9
    Council Member jcustis's Avatar
    Join Date
    Mar 2006
    Location
    SOCAL
    Posts
    2,151

    Default

    Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?
    Good points. And remember gang, perfection is relative.

    Justice for crimes purported to be committed by Afghans against Afghans are also a wholly different matter than the rule of law and rules of evidence for crimes committed against GIRoA in the coalition sense.

    LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?

  10. #10
    Council Member LawVol's Avatar
    Join Date
    Jun 2006
    Location
    Kabul
    Posts
    339

    Default

    LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?
    Unfortunately, I haven't had the opportunity to observe the drug courts yet. However, I did observe a few trials at the JCIP (Justice Center in Parwan) where the terrorism cases are tried. I was told by folks more experienced than I, that the JCIP court would be among the best I would see given that JAGs are embedded with the court. I saw an inability of attorneys to deal with basic forensic evidence. In one particular case, the question involved fingerprints. There is a lack of understanding as to how fingerprints work and how the evidence can be used. It's fixable with some training of judges and lawyers and restructuring evidence classes in law schools, but its does need to be done.

    Another issue is that law schools typically do not teach critical thinking. Law is learned through memorization, akin to learning the Quran in madrassas. In fact, a good many lawyers and judges have no formal legal training, but instead are educated in Sharia through madrassas. Some knowledge of Sharia is important since it is incorporated into the Constitution, but the absence of any formal legal training is a problem.

    Afghan lawyers will tell you that their Constitution requires the application of Sharia law when the Constitution or statutes have no answer. However, that assertion fails to comply with actual practice or the specific wording in the Constitution. I have no issue with applying Sharia law here (after all it is their country), but practice and written law should match. Unless this happens, there will always be accusations of impropriety, a death-knell for system legitimacy.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  11. #11
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default In all sincerity, JMA,

    SJAs are not the problem.

    -------------------------
    LawVol - Good to see you back posting.

    As I've thought about this more and more over the years (40+ as a lawyer), I think we have the real "legal process" a$$ backwards.

    Our formal construct for what rules a "decision-maker" looks like this - in presumed order of impact on the decision (using Quotes to set off the points):

    1. Doctrinal Law (usually written) as read and interpreted by the decision-maker.

    2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

    3. Social Norms (usually near and local) accepted by the decison-maker.
    Items 2 & 3 tend to be ignored by legal formalists.

    I'd suggest that the real "legal process" is like so - same elements reversed:

    1. Social Norms (usually near and local) accepted by the decison-maker.

    2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

    3. Doctrinal Law (usually written) as read and interpreted by the decision-maker. If this does not follow the accepted social norms, the decision-maker will interpret the Doctrinal Law to accord with Social Norms and Living Law.
    I have used this "strategy" for decades - obviously not as blatantly as I present it here - and it has worked well at both the trial and appellate levels.

    In the case of a Astan village decision-maker, national Constitutional law and international law are so far removed from his Social Norms and Living Law that one should not expect him to pay much attention to them at all.

    Regards

    Mike
    Last edited by jmm99; 04-22-2011 at 07:01 AM.

  12. #12
    Council Member LawVol's Avatar
    Join Date
    Jun 2006
    Location
    Kabul
    Posts
    339

    Default social/cultural influences on law

    Mike, you are quite right. We Americans, particularly lawyers I think, become jaded toward other forms of law, especially civil law as opposed to common. However, our main ethnocentrism revolves around social or cultural adaptions of law. We seem to think that if its works for us, it'll work for others forgetting that folks have been doing this for thousands of years.

    While I do believe their are certain fundamental rights that exist irrespective of culture, i.e. natural rights (existential rights?) that exist just from the fact that we exist (still working through my thought process on this one), the fact is that most law will turn on societal norms and cultural influence. In trying to enforce our own ideals of justice, we ignore this aspect of legal system creation and hamper our efforts to create a working system. I think we should focus on the big picture and worry about some of this stuff later.

    Another aspect of the formal legal system lost on some in relation to rural folks, is the historical trend of desiring limited government. These folks want government to leave them alone. Security is all they really desire from the government and governmental imposition of a "foreign" legal system in lieu of their traditional methods is viewed as undesirable. We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.
    -john bellflower

    Rule of Law in Afghanistan

    "You must, therefore know that there are two means of fighting: one according to the laws, the other with force; the first way is proper to man, the second to beasts; but because the first, in many cases, is not sufficient, it becomes necessary to have recourse to the second." -- Niccolo Machiavelli (from The Prince)

  13. #13
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Right on ...

    What you say, fits with what Jon said here, viewed from a slightly different angle.

    This is, I suppose, the tasked mission:

    from LawVol
    We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.
    and I couldn't agree more about the time frame (indeed, generational). I toss out what follows for thought. Unfortunately, it's not based on in-country experience. However, it does go beyond staying in a Holiday Inn Express last nite (my wife kicked me out; I stopped beating her ).

    What I think is based on what I've read (as one example, Justice Sector Support Program stuff - whose links I had here, The dumb lawyer again, and here, A little part of the picture, have gone South). Freely correct any errors I made.

    If I am to be consistent with my methodology (as to steps 1, 2 & 3 used by the decision-maker), those steps would also apply to the decision-makers in Kabul. Their social norms seem to be more "Western" (even "USAian" in many cases) and I suspect the "tailored suit" makes many of us (USAians) more comfortable than we are with the villager who sits there picking his feet while we talk (via one or more interpreters).

    Those Kabulians have therefore taken up, into their system of social norms, part of the "Western" formal systems of international and national laws and part of the Sharia formal systems of national and local laws. The result is that their formal system of laws is within the framework of their social norms.

    The issue you raise is what gets incorporated at the local level. I'd posit that the formal system (Doctrinal Law) has to be incorporated into the traditional system (Village Social Norms) - and that won't happen unless the formal system squares pretty much across the board with the traditional system.

    To me - as a "Western" lawyer, the Taliban (pre-9/11) looked a rather "lawless" bunch; but looking back, I suspect they simply did not want to take on the longterm and thankless task of implementing a national sytem of laws. So, they have the Sharia as their law; but the Sharia that is applied (at least in the countries where Marc-André Lagrange has worked; see this thread, Mullah Omar: Taliban Rules and Regulations) is a "Living Law" (not exactly as written, but in the noggin of the decision-maker).

    We might say that a generalized Doctrinal Law system is capable of supporting a range of Social Norms - the decision-maker can "interpret" it to do so. However, the Social Norms of a particular group are usually not sufficiently flexible to support a wide range of Doctrinal Law systems. Thus, a Doctrinal Law system (if it has any real meaning to a population group) has to accord with the Social Norms of that group - either by being expressly drafted, or by "interpretation", to meet those norms.

    Do the Kabulians and the Villagers have contradictions in Social Norms ?

    Regards

    Mike

  14. #14
    Council Member Bob's World's Avatar
    Join Date
    Nov 2008
    Location
    Florida
    Posts
    2,706

    Default

    "Rule of Law" is a pet peeve for me as COIN theory goes.

    Saddam certainly had rule of law, and it was a major reason contributing to our decision to invade as he enforced that law to ensure that no Shiite or Kurdish insurgency emerged.

    The Taliban similarly had rule of law in Afghanistan. Sharia is a very effective COIN rule of law approach when one defines defeat of those who dare to complain about governance as effective COIN. Same is true for many countries on the Arabian Peninsula that are on the edge of full rebellion.

    No, "Justice" is the goal, not rule of law. In England when there was a growing perception that there was little "justice" under the law they created the Courts of Equity to address this concern. Good COIN, that. Ultimately the two court systems fused into a more just legal system provided the basis for law and justice as we know it in America today. From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

    I wish the State department would change their "rule of law" division to a "justice" division; their "democracy" division to a "self-determination" division; and their "counter-terrorism" division to a "non-state actor" division. They would be more effective for it.

    The rule of law is as apt to create insurgency as cure it; but justice is always a step in the right direction.
    Last edited by Bob's World; 04-22-2011 at 04:38 PM.
    Robert C. Jones
    Intellectus Supra Scientia
    (Understanding is more important than Knowledge)

    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

  15. #15
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Ah, Bob,

    again my shield is raised to your sword.

    Very simply (because I've explained this fully more tmes than I should have had to), what you call "rule of law" in your examples (prior post) is really "rule by law" - law imposed from above.

    The Chinese legal theorists saw it as part of the Imperial Mandate from Heaven. So, also the "Divine Right of Kings". Neither the Chinese Nationalists nor the Chinese Communists understood our (USAian) concept of "rule of law" and thought we were nuts.

    The concept of "rule of law" (to have any real meaning to the masses) has to incorporate the basic concept of "We, the People of X ... do ordain and establish ..."

    My battle is not with the "Rule of Law" as so defined ("We, the People ..."), but with use of the term "rule of law" in situations where "rule by law" is the actual system.

    The distinction between "rule of law" and "rule by law" is not trivial - cf., the distinction between "relevant" and "material".

    Your arguments (with their thoughts as I attempt to parse them, I have more agreement than you might think) suffer from a non-rigorous choice of terminology - which takes you off on tangents (at least to this reader).

    Please bear the following in mind as you equate the old Courts of Equity and "justice" (good "COIN" in your words):

    This is the Court of Chancery, which has its decaying houses and its blighted lands in every shire, which has its worn-out lunatic in every madhouse and its dead in every churchyard, which has its ruined suitor with his slipshod heels and threadbare dress borrowing and begging through the round of every man's acquaintance, which gives to monied might the means abundantly of wearying out the right, which so exhausts finances, patience, courage, hope, so overthrows the brain and breaks the heart, that there is not an honourable man among its practitioners who would not give--who does not often give--the warning, "Suffer any wrong that can be done you rather than come here!"
    Dickens, Bleak House.

    Please - history and rigor (I'm starting to sound like Wilf).

    Regards

    Mike

  16. #16
    Council Member carl's Avatar
    Join Date
    Nov 2005
    Location
    Denver on occasion
    Posts
    2,460

    Default

    Rule of Law as opposed to Rule by Law, very elegant.

    Rule of Law: all are subject to and must abide by.

    Rule by Law: some are subject to and must abide by.

    Is that part of it?
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  17. #17
    Council Member Bob's World's Avatar
    Join Date
    Nov 2008
    Location
    Florida
    Posts
    2,706

    Default

    Mike,

    My post not to argue with yours, but rather to express my concern with the concept. While I appreciate the nuance you lay out of "Rule of" vs "Rule by"; but if one needs a lawyer to explain even the name of a legal concept, it is a flawed conceptual name.

    No one needs to explain "justice" to anyone. We all know when we feel we have been treated with justice or injustice intuitively. I stand by the position that this is what I want State to pursue rather than "Rule of Law;" particularly when we are on record as being against Sharia law. The implication is that we want to replace your law with our law, and there is little justice in that implication.
    Robert C. Jones
    Intellectus Supra Scientia
    (Understanding is more important than Knowledge)

    "The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)

  18. #18
    Council Member carl's Avatar
    Join Date
    Nov 2005
    Location
    Denver on occasion
    Posts
    2,460

    Default

    Quote Originally Posted by Bob's World View Post
    No one needs to explain "justice" to anyone. We all know when we feel we have been treated with justice or injustice intuitively.
    The feeling of being treated unjustly is likely to be voiced long and loud by most all people who get arrested regardless of the crime. They only rarely say "You got me and I deserve to be got." Therefore I question your premise.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

  19. #19
    Council Member
    Join Date
    May 2008
    Posts
    4,021

    Default Whoa, Mr Lawyer Jones....

    First, why this fails logically:

    from BW
    While I appreciate the nuance you lay out of "Rule of" vs "Rule by"; but if one needs a lawyer to explain even the name of a legal concept, it is a flawed conceptual name.
    Lawyers (if they are able) should explain legal concepts and their names. I don't ask the guy who stayed at the Holiday Inn Express to explain medical terms; I ask my doctor.

    That does not end the process because many lawyers can't explain legal concepts or their names worth diddly - and may not know the history of the concept and the reasons for it (which go back to Social Norms).

    So, non-lawyers also shape these names and concepts - Marc Tyrrell, as just one example, can explain "rule of law" and "rule by law" (as I am using them here) better than I can in terms of population group dynamics. However, boiled down to their basics (as I am using them): "rule of law" is a "bubble up from the base" phenom; and "rule by law" is an "imposed from the top" phenom. Those basics require no "lawyerly" sophistry to present or understand.

    Still keeping with the Lawyer Jones theme, what are more legal than the terms, "justice", "democracy" and "self-determination" ? But, moving aside from that, those terms are indeterminate. For example, someone like Maududi uses the same or equivalent terms (in English translations) to describe his Jihadist "state". The terms, "justice", "democracy" and "self-determination", are lovely words; but they mean very different things to different people.

    For example, if a group of rebels bases their revolt on the terms "justice", "democracy" and "self-determination", are we to support them automatically. Sometimes, your arguments seem to say just that - other times, they do not - leaving this reader confused as to what your policy really is.

    In a post or posts long ago, either Tyrrell or John T. Fishel (or both) suggested using "working definitions" - strictly for purposes of comnunications. I'm always open to that; but both sides have to agree that a "working definition" is just that - not a final, definitive agreement.

    ---------------------------------
    To Carl:

    from Carl

    Rule of Law: all are subject to and must abide by.

    Rule by Law: some are subject to and must abide by.
    I'd say that like such (using incredible lawyerly sophistry ):

    Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

    Rule by Law: You all are subject to and must abide by my rules because I said so.
    First example - Carl and Mike (the only members of the population group) have to agree on the rules that will govern them.

    Second example - Mike tells Carl what to do.

    Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination".

    I suppose I should have said this to begin with and reduced the Bravo Sierra (in Finnglish - Pullsit; that's for Stan if he sees this).

    So, what is the best system - Ex 1 or Ex 2 ?

    BTW: Google gives 12,500,000 hits for "rule of law" - There are many, many definitions that do not agree with what I've presented here - and don't agree with each other !! This ain't the Quest for the Holy Grail.

    Regards

    Mike

  20. #20
    Council Member carl's Avatar
    Join Date
    Nov 2005
    Location
    Denver on occasion
    Posts
    2,460

    Default

    Quote Originally Posted by jmm99 View Post
    I'd say that like such (using incredible lawyerly sophistry ):

    Rule of Law: We all are subject to and must abide by our rules because we established and ordained them.

    Rule by Law: You all are subject to and must abide by my rules because I said so.
    No Mike, that's not sophistry. That fine tuning the thought to give it greater clarity and precision. Sophistry would be "I am part of you and you are part of me, we are interconnected by longstanding ties of history, culture and social diversity. We cannot be separated because our diversity unites us therefore my rules are our rules; and since for you to contravene your rules would be contrary to nature if you did that I would naturally slap you up the side of the head since that is what you really want me to do."

    Quote Originally Posted by jmm99 View Post
    Hey, I wouldn't let you rule me - If you tried that, I'd exercise my right to insurge based on "justice", "democracy" and "self-determination".
    If you insurged I'd have my nephew ambush you at night while you were walking to your insurge venue; or I'd build you a school so you'd like me, or maybe both depending.
    Last edited by carl; 04-23-2011 at 12:01 AM.
    "We fight, get beat, rise, and fight again." Gen. Nathanael Greene

Similar Threads

  1. Defending Hamdan
    By jmm99 in forum Law Enforcement
    Replies: 35
    Last Post: 05-22-2011, 06:36 AM
  2. Motivation vs. causation
    By Bob's World in forum Social Sciences, Moral, and Religious
    Replies: 83
    Last Post: 02-03-2010, 05:21 PM
  3. Rule of Law in Afghanistan
    By Surferbeetle in forum OEF - Afghanistan
    Replies: 2
    Last Post: 07-16-2009, 07:56 PM
  4. Wired’s 2008 Smart list
    By SWJED in forum Social Sciences, Moral, and Religious
    Replies: 19
    Last Post: 09-26-2008, 05:24 PM
  5. WHere is the heart of the "War on Terror" anyway?
    By Rob Thornton in forum Catch-All, GWOT
    Replies: 7
    Last Post: 04-14-2008, 11:13 AM

Bookmarks

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •