Jewish World Review Sept. 13, 2000 / 12 Elul, 5760
It is a fundaental constitutional principle that citizens are able to decide their own laws, rather than have them imposed
http://www.jewishworldreview.com -- ONE OF THE THINGS Americans admire most about Britain is its legal tradition. There is an appreciation for the Common Law, as well as the notion that not every principle must be spelled out or litigated. Weary of their own hyperactive legal establishment, Americans imagine Britain to be a model of how civilisation at its best can protect individuals without perpetual resort to the courtroom.
Some of this is a "grass is greener" fantasy. Still, there is one thing about Britain that does make it a global model. This is the country's tradition of locally-generated law and centuries of precedent. In democracies, local law tends to work better than jurisprudence meted out from a distance.
So it is all the more distressing that the UK plans next month to incorporate the European Convention on Human Rights into domestic law. The idea that Britain of all places feels the need to slap an extra layer of legal bureaucracy on its courts is shocking. It also threatens to undermine the precious principle that local is good. The US Congress has so far resisted the idea that international human rights treaties must be enforced in the country's courts. But now that Britain has capitulated, there is a suspicion that America will eventually follow.
It may seem strange that the land of the Bill of Rights has resisted international human rights conventions. But the salient issue is where the law originates. The Bill of Rights is an intensely American document, specific to the Revolution. The third amendment, prohibits the billeting of soldiers "without the consent of the owner", an expression of the colonists' fury at the Crown's habits of quartering Red Coats in their homes. Some might call it outdated, but it would be American heresy to strike it from the Constitution.
The resistance to change from without was clear last week at conference at New York University. The occasion was a visit from Cherie Booth, wife of Tony Blair, and others from Matrix Chambers, her barristers practice specialising in human rights.
The event gave an opportunity to US legal experts to present a range of objections to the idea of international rights stepping onto American soil.
The first objection stems from the American federal system. This was created to give states legal power in their war with their greatest foreign enemy: Washington. But it serves the states in international battles as well. The example debated at NYU was the brutal case of Angel Breard, a Paraguayan national convicted of knifing his neighbour in Arlington, Virginia to death. Breard was sentenced to death and executed in 1998. Before his execution, Paraguay took his case to the International Court of Justice in The Hague, seeking a stay on grounds that the defendant's human rights were breached when he was not granted access to his country's consul. Although Madeleine Albright, the Secretary of State, made a plea for Breard, the Supreme Court refused to stop Virginia.
The principle that a a judge in Virginia can thumb his nose at The Hague with impunity is a very American one. The death penalty enjoys the support of a majority of Virginians and James Gilmore, the state's governor, was acting in the tradition of the Declaration of Independence. This asserts states' freedom "to levy war, conclude peace, contract Alliances, establish commerce and to do all other acts and things which independent states may of right do." Mr Gilmore argued that "a stay of execution would have the practical effect of transferring responsibility from the courts of the Commonwealth and the US to the international court."
Americans are well aware that many foreigners abhor their death penalty as barbarism, and many themselves oppose it. But even death penalty opponents tend to feel it would be better if the change came from within the country - as did the 1960s Civil Rights movement - and not by international fiat.
International law also presents a threat to the tradition of legal precedent. Helen Mountfield of Matrix said that UK judges would have to stop being "archivists" and become "architects". This unnerved traditionalists in the room, as it seemed to confirm their fear that the new jurisprudence would be deployed to topple local precedent rather than build on it. For Americans, it provided a further objection to the incorporation of international law in the US. "We have a well-functioning system in human rights law," said Jack Goldsmith of the University of Chicago. "We are generally satisfied."
There is a further danger in the prospect of international human rights laws eventually acquiring force in America. The Bill of Rights has protected citizens, but it has also served as a pot of gold for ambulance chasers, and class-action warriors. A new set of human rights laws could easily generate a fresh round of profiteering. Mrs Blair personifies this suspicion - her husband has helped to create a new field of UK law in which she will specialise.
But by far the most worrying prospect for Americans is being left isolated by Britain's
acquiescence. In the US, said Paul Chevigny of NYU, "there is a silent agreement between
liberals and conservatives that social change through law has to be done by the people." At
the conference, this was labelled "American exceptionalism". But what is so exceptional
about the idea that the best changes start at
JWR contributor Amity Shlaes is a columnist for Financial Times
. Her latest book is
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