On the Rule of Law, Hobbes, and the Law of Nations

The finals-induced fog has lifted, and I'm back. I'll be uploading a lot of content over the next few days regarding the trip to Krakow, including the itinerary (Leave Friday, June 17, Saturday June 18 in Krakow, including tours of Wawel Castle, the Old Town, and the Jewish Quarter; Sunday morning tour of Auschwitz and return to Bialystok -- 650PLN per person), the trip to Warsaw, updates on housing, etc.

In the meantime, the death of Osama bin Laden provides a teachable moment on the relationship between the rule of law and the law of nations. Despite that the official story on how bin Laden was killed is still changing on a more or less daily basis, critics are already coming forward to complain that the killing was illegal.

Realistically, this claim is absurd on many levels.

Fundamentally, the rule of law is a statement of the relationship between the individual and the state. It represents a consent by the sovereign to restrict the sovereign's activities to those governed by law. For instance, the English Magna Carta represented a compact between the English barons and King John under which King John was forced to promise not to use his sovereign authority in ways that violated the fundamental rights of the barons (and later English (and eventually UK) subjects in general). Likewise, Polish kings were subject to customary law restrictions regarding what they could and could not do vis a vis the Polish nobility. The US and Polish constitutions (I hope the Polish readers of this blog will accept my belated good wishes for Constitution Day) theoretically restricts what the governments may do to control the lives of U.S. and Polish citizens.

But the rule of law cannot apply in every situation. In international relations, for instance, "law" as a restriction on international relations is an absurdity. Nation states have no obligation other than habit or self-interest to respect international customs or agreements. Thomas Hobbes, in fact, described international relations as an example of the state of nature in which all were in a state of war against all.

There is another situation in which, at least according to Hobbesian thought, the rule of law cannot apply in dealings between individuals and the state in which the individual has removed himself or herself from the social compact in which the state is obligated to protect the life of the individual. In this case, the individual has reentered the state of nature as against the state and all members of the state. Similarly, individuals who are not part of the social compact under the sovereign's control are likewise not within the rule of law but rather are subject to the "law" of nations.

In the case of bin Laden, besides that he was a foreign national and therefore already in a state of nature (and an actual state of war) with the US, his mass murder of US non-combatants was the type of act that Hobbes would see as removing a person from the social compact and placing them in a state of nature vis a vis the sovereign. Thus, while international "law" might assert that the killing was illegal because it violated Pakistani sovereignty, the reality is that nation states abide by international law only while it is convenient and in their self interest. In the matter of whether the killing comported with the values of the rule of law, it is difficult to see how bin Laden's death affects those issues at all.

Or maybe not -- can a case be made that the rule of law applies equally between nation states as between individuals and their sovereigns? Discuss.