The Eclipse of Legalism

(Cross posted here)

This piece in The New Republic is worth the fifteen seconds it'll take you to register:

Perhaps the greatest danger in fighting terrorism is the polarizing effect such a campaign can have--not just internationally, but domestically. To avoid this pitfall, a strong political consensus for military action is necessary. That means the president must actively reach out to domestic opposition. But American leaders must also heed Sharon's other lessons. That means an ability to endure criticism from abroad and even to risk international isolation, a willingness to define the war on terrorism as a total war, and a commitment to focus one's political agenda on winning, not on divisive or extraneous concerns. Fulfilling those conditions does not guarantee success. But it does make success possible--as Israel is, at great cost, showing the world.

The piece is a bit sloppily written, but not without merit. Go ahead. Indulge me. My own view is that Sharon probably is a war criminal, but that he's saving lives, and that his critics are often pseudo-intellectuals posing as legalists -- legalists who John Keegan castigates in The Telegraph for their opposition to Tony Blair:

It is difficult to understand the motives of those who are making life difficult for the Prime Minister. Some are legalists who continue to insist that the war was launched without justification in international law and wish to punish those responsible for their transgressions.

They belong to that tiresome but increasingly numerous tribe who seem to think that men are made for laws and not laws for men. In any case, their arguments are contested, since many (including the Attorney General) hold that UN Resolutions 678, 687 and 1441 do in fact provide justification for the taking of military action against Saddam.

The rest of the Keegan piece isn't a must read. It's mostly a rehashing of arguments a lot of you went over in the runup to the war during February and March of '03. But it seems to me that there's a pattern here. We have Sharon winning against the legalists at home and abroad. We have Keegan winning the debate against the legalists on behalf of Tony Blair. And we have Dubya up in the polls against a democratic ticket, one half of which is a hugely successful trial lawyer.

Tort reform, anyone?

Who is Fred?

Update -- Reader Walt Kraslow comments:

In "The Eclipse of Legalism," you write:

"My own view is that Sharon probably is a war criminal...."

As an avid reader of your Web site, finding out that you subscribe to this canard of the left is disappointing, so much so that I have no desire to argue with you and cite all the authorities to the contrary. (At worst, Sharon was negligent or perhaps even derelict in his duties at Shatilla, but those are not war crimes.)

If Sharon is a war criminal, alas, so is Bush, and all his supporters complicit in his crime.

I expect better from this Web site, as do, I suspect, most of its readers.

I respond:

Walter,

The point I was making is that it's dangerous to rely on terms like "war criminal," because while all bad men such as Stalin, Hitler, Saddam and Pol Pot were war criminals according to the legal definition, not all "war criminals" are bad men. Can the case be made that b-29 pilots firebombing tokyo were war criminals? Perhaps, if the standard in judging war criminals is whether or not they make war specifically on civilians as a strategic goal. But they were still good, brave men by my standard.

What I'm saying is, Sharon and Bush are good men, too. They are doing what they need to do to protect their people. Us. You and me. Unfortunately, we have a body of international law that will sometimes interpret their actions as criminal.

Again, my point is, legalism -- or excessive legalism such as that practiced by Sharon's accusers over Sabrah and Shattila -- isn't very useful in the war on terror. As Keegan says:

They belong to that tiresome but increasingly numerous tribe who seem to think that men are made for laws and not laws for men.

I hope this clarifies my position. The law is a guide, but we need to have enough common sense, as Americans, to know when to trump legal arguments when there are obviously stronger moral and/or utilitarian arguments around.

And if we still disagree, then please don't judge Greyhawk or his Mudville Gazette on the basis of my pretentious blatherings.

p.s. -- I've had my own frustrations with "canards of the left." Imagine leaving the Army, working your butt off at a Junior College to get into a 4 year college, and then once you get to that 4 year college you find yourself in a class with Joel Beinin. Imagine that Joel is lecturing about how the United States deserved to have 200+ Marines killed because of our support for Israel in the wake of Sabra + Shatila? Imagine if you needed to get his stamp of approval on your degree. Well, I didn't get a degree and now I'm a hulldiver.