The rule of law and the rule of the jungle, or the no bullshit reason why people don't trust politics
The plain jane, no-bullshit reason why people have never really trusted politics.
Avi Beker makes an excellent argument about the situation between Lebanon and Israel that illustrates it well and really extends far beyond the Middle East.
Lawfare in the Middle East
"FOR SEVERAL Islamist fighting groups and terrorist organizations in Afghanistan, Pakistan, Iraq, Lebanon and Gaza, the humanitarian principles of the Law of Armed Conflict had become the major source of inspiration and guidance. These methods of legal maneuvers in the battlefield are viewed by Islamists as a critical component in their strategic and tactical planning.
They are well aware that Israel and other Western countries are bound by international law and the rules of engagement that flow from it, and they exploit it in a very cynical and brutal fashion.
It is wrong to argue, as many legal experts claim, that existing international law is ill-equipped in dealing with the so-called 'non-state' entities. It is true that traditional Law of Combat was built on the assumption of a conflict between two states which are striving for international legitimacy and would, therefore, abide by some measures of legal restraint. However, existing instruments of international law contain ample references which can cover acts of self defense and measures taken in the war against terrorism. The problem lies only with the politicization and selective interpretation of covenants which follow some more fashionable post-modern trends and are often inclined to glorify acts of terrorism.
It becomes worse when a United Nations voting bloc comprised largely of undemocratic member states continues to dictate international human rights norms and can hijack, against the rules of the Charter, the debates and agenda relating to international peace and security.
A fair reading of Hizbullah’s threats against the civilian population in Israel coupled with its brutal abuse of humanitarian rules can be easily recorded as systematic war crimes in their making. In addition the group continues to violate resolution 1701 of the Security Council which forbids the arming of groups outside the Lebanese Army. Thousands of missiles, rockets and huge ammunition are being smuggled to South Lebanon with the full cooperation of Iran and Syria and the blind eye of the government of Lebanon.
The fallacy and the serious omission by diplomats and legal experts lies in their disregard of the explicit responsibility of each party in armed conflict, including the defender, to protect its civilian population and remove it from military targets. The duty of “distinction” goes both ways and article 51.7 of the Geneva First Protocol emphasizes that while civilians are protected by the principle of distinction, no party can use its civilians as shield for its military objectives. It reads: 'The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favor or impede military operations.'
Hizbullah, which is today a full-fledged member in the Lebanese government, can no longer hide behind another distorted interpretation of humanitarian law and claim 'non state' status. It should be emphasized: there are no restrictions in article 51 of the United Nations Charter regarding the exercise of the inherent right of self defense against non-state entities.
Last week’s provocation by the Lebanese Army makes it even more responsible to the Hizbullah violations of humanitarian law and will nullify future claims that Israel violates the principle of proportionality in attacking targets inside Lebanon. When the enemy makes it a clear strategy of using civilian shields in its war effort it is permissible to use a large degree of force against multiplied targets, including infrastructure, as long as the force is intended to remove the continuing risk posed by its rockets.
Lawfare has become a major arena for the delegitimization campaign against Israel. In the past Israel had to incorporate a doctrine of pre-emptive or preventive strikes to compensate for its very narrow margins of defense against variety of threats. While Israel should always maintain its high standards of moral and humanitarian behavior in combat it must tell the world that no army can endanger its soldiers in order to avoid hitting targets which are using civilians as shields. Israel must develop a “lawfare” preemptive strategy which will alert the world on the misuse and the moral collapse of international humanitarian law."
The truth is that this strategy of using the law for whatever purposes one desires is not limited to Hizbollah and terrorists. They certainly use it to more brutal ends, as they do with almost every weapon in their arsenal as they rationalize their power claims.
But the truth is that the law has now and always been a political football for people to rationalize whatever sort of power they desire. Good or ill. That's the reason why liberal thinkers have taught us to be so skeptical of power and claims on it. Because it, and the law as a function of that on-going battle for power, is rationalized for almost any purpose.
That is the foolishness of romanticizing law. Like somehow it has always stood for justice. For what was good and right.
Tell African slaves that. Or Jews during the Holocaust. Or Jesus or Socrates. Or the vast majority of people in our history who were oppressed by religious rule or under empire. Many of whom still are today. All under the cover of the rule of law.
It's laughable, really, to have an honest reading of history be one that validates the law as an anything but a tool used for bad as much as for good. Many of the most serious evils in human history have had the cover of the rule of law.
The Holocaust and Nazi rule. Soviet Communism. Chinese Communism. Religious oppression. Empire and the general principle that might makes right. Slavery. The oppression of women and any dominated group. In fact, our notion of minority groups in Western culture is explicitly a function of the dominant power position of majority groups.
We know this. Deep down. But like slave-owners and Nazis and Communists and popes, we also like our power. The benefits it offers. The status is confers. And the ability, at base, to get our way.
That has always been the appeal of power. The ability to get your way. Even when you're wrong. Might makes right has a long and persistent history. It is one of destruction, tragedy, and gross injustice. It is also the most looming history for almost every organized human society. The rule of law is intended to distinguish from the rule of the jungle. But, in reality, it is and always has been used to cover for the rule of the jungle. Even as it has always claimed to be its alternative. Often it is. And just as often it is used for the very same coveting of power that makes us so rightly skeptical of jungle monarchy.
So the notion that this tragic, ugly legacy that humanity has spent almost all of its civilized existence trying to leave behind would somehow consitute progress is really the most foolish and absurd rationalization of all.
And like every other variation on that theme that has ever polluted the heart of humanity, this one will fall apart just like the rest.
Because everyone wants to exercise power over everyone else, at some point, likely. We are a predatory and aggressive species by nature, after all. Noone would have a problem with the rule of the jungle if they could be its king. That is the fantasy that has always animated power. It's just an instinct that persistently betrays us. Because while most people want to exercise power over others, almost noone wants to have power exercised over them. Not really.
And humans are social animals. Enormously intelligent and creative social animals, at that. Who, unlike hyenas and jackles, and lions and tigers and bears (oh my) find any number of ways to escape and challenge the dominance of competing groups and members.
And their history is one long challenge to the dominance of any one group or individual, each one assuming, foolishly, that they can do just that. Only to be leveled by competitors. Every time. Without exception.
If there are rules that humans actually abide by (and there really are not, for the bulk of human experience, except when they so choose), the one rule that is without exception is that every effort to dominate their fellows is challenged. And, in the long run, successfully. Every single time.
And the rule of law is typically a weapon in this battle. But never a final resolution of that battle. Ever. And that will never change. No matter how much we assert it otherwise.
And every effort that has constituted more genuine progress in human history has been a recognition and attempt to account for this fact of human existence.
In fact, the more we assert it otherwise, the more obvious it becomes how little is actually resolved. And how the effort to use the rule of law, and the force inherent in its use, to resolve differences between people, except when real danger is involved and people must be contained to contain that danger, resolves almost nothing. And is the source of much of the conflict, truth be told.
Which is why the long road of progress in human history is now and always has been a road toward greater and greater respect for conscience and the freedom to exercise it by each individual. Because it is the only path that better resolves such conflicts. And makes clearer the tragic consequences of a history obsessed with power, and the pride that animates it, to coerce the conscience of our friends and neighbors.
Lawfare has another name.
It's called politics.
And it is exactly why so many people distrust this enterprise. And should.
Because it is clear to any objective observer not defending any of the participants just how dishonest and ugly and unworthy of trust that enterprise typically is.
Even as power remains necessary for limited and important purposes. But which important purposes are undermined by the mistrust bred by those who would use power to dominate their neighbors.
Rather than appeal to their consciences.
And the cynicism that often circulates about humanity - that no man can be trusted - is often both a function of and a rationalization of power. Divide and conquer, writ large.
The bottom line for humanity is this.
If we choose not to end that legacy, not to end the endless rationalizations of power, the war of humanity on itself, for no productive purpose whatsoever except to acquire and maintain that power, for good and so very often for ill, it is not because we could not do otherwise. It is not because otherwise is not possible. Or naive. Or destined for chaos. Or any of the excuses given for the coveting of power.
It is because we choose not to do otherwise.
And no amount of deception or self-deception will make that not be so. No matter how much we talk our way around that fact.
And the only way genuinely forward is to face and acknowledge that fact. And the ways that our rationalizations - in the liberal and illiberal world - for power feed one another. And the tragedy they are responsible for. Even as we lack the courage to face that tragedy. And our responsibility in it.
Sadly, at some point, we will only be able to look back on the vast majority of this long history of power and its obsession as pointless and tragic folly. A tragedy of the most dominant and predatory of species on Earth determined to dominate and kill and oppress one another. All in the name of their fear of being dominated and killed and oppressed by the other.
And that legacy will and already has begun to slip away from us long before most of us take to time to reflect on its consequences. Some people may rarely if ever reflect on its consequences. But they will be free to not reflect as much as they will be free to reflect.
And that kind of freedom is the essence of any sort of real progress. Take that to the bank.
Or you could ignore all that bullshit and just get the prettier arrangement from Jack.
I like Jack better, personally.