Overruling the Constitution:
The Norms and Natural LawOverruling the Constitution: The Norms and Natural Law


Basics About the Norms

Norms of International Law

Fundaments, Knowledge, and Change

Fundaments

Most people likely don’t think norms have to exist as anything more than advice, and think they are definitely not law. That is legally incorrect. The norms of international law are ‘enforceable expectations on which most nations either agree or are coincident’.

Every nation is bound by the set of norms. It’s bound simply because an entity is a nation and from the nation’s inception, even without the nation knowing of the existence of any of the norms, even without explicitly agreeing to any of them, and even if vigorously objecting to any or all of them. A given norm possibly may not apply to a given nation and it may be impossible before a dispute arises to list all of the parties to which it applies, but the usual presumption is of globality. Subglobal norms exist between a powerful nation and its relatively powerless neighbors if those norms do not apply everywhere else. U.S. Constitutional law, in the Equal Protection Clause of the Fourteenth Amendment, orders that people factually similarly situated are entitled to similar treatment under law; but that principle may not be in the norms.

The norms are between nations. Conduct within a nation is a subject for enforcement by the norms, but that is because when the conduct may violate a right of another nation the nation so conducting (even if the conduct is by a private party or a so-called nonstate actor) is responsible by the norms for the possibility of adverse enforcement. However, conduct that would violate the norms and is against a nation may be consented to by the nation the conduct is against and thus not violate the norms. Such consent can be given by the head of state of the consenting nation; in some situations, other entities within the nation can give the consent without the head of state giving it but whether such consent is legally equivalent to that which would be given by the head of state is difficult or impossible to ascertain and it is not sufficient that a domestic law provides that consent, because of the difficulty for a foreign nation of ascertaining a nation’s domestic law. Where consent is given, for a nation receiving the consent to be immunized from a claim that its use of the consent violates the norms requires that the consent be genuinely from that nation; if a nation, either the recipient of the consent or another, installed the consenting head of state so that its role as head of state is a sham and the installation was not a right of the installing nation (such as because of a defeat in a war) then the consent may not be lawful by the norms. And consent does not immunize the consenting and consented-to nations from a claim of together having violated a right of any other nation by the norms.

When the norms apply to a nation, it’s because other nations may enforce them against the nation in question if it appears to violate the norms, maybe going to war to enforce them, even, perhaps, existentially annihilative war. No nation can be free of all of them. They likely apply to all future nations as yet unknown.

Some legal authorities assert that dualism applies, by which domestic and international law exist in separate spheres such that one or the other, but not both, is to be applied to given factual circumstances, as opposed to monism, by which all law is integrated into a single system that is then applied to the factual circumstances. That is different from finding that only domestic or only international law has a provision that could be relevant to the factual circumstances, but refers to both bodies of law being purportedly applicable and yet only one being chosen for application. Dualism appears to be invalid, monism valid.

Nations may differ in applying the same norms under similar circumstances. Whether how one acts is a binding precedent for how others should act is more complicated than in, say, U.S. law with its more finely adapted sense of judicial precedent relying on opinions published by a relatively tightly organized system of courts operating under U.S. domestic law that requires that the government treat similarly situated people with similar treatment (U.S. Constitution, Fourteenth Amendment, Equal Protection Clause), and that law does not have a counterpart, for equal treatment of nations, in the norms. The practice of nations does offer precedents, but precedent itself has less consistent value and what may be more important in applying possible precedent is the weight of consensus among nations and among high judges and speakers of law.

The norms are generally discovered by the highest judges of nations and speakers (who generally are professors), and can, possibly with an exception for peremptory norms, be amended by nations acting through their heads of state; other sources for the norms also exist. However, formal international bodies, such as the United Nations, while they might generate evidence of the norms or interpret them, are formed by treaty and not by the norms, and do not bind nations that did not agree to the respective treaties, and thus cannot usurp the power of the heads of state to revise the norms. They might participate in the revising, but they cannot control it.

Knowledge and Notice
Fundaments

The norms recognize that the concept of nationhood exists, although the norms do not list the nations and likely are incomplete as to whether a particular entity qualifies as a nation.

Once a norm is promulgated or once a nation is formed, whichever is later, notice of the affected norms to all nations or notice of all of the norms to the new nation is required, but the duty of notice may fall on each recipient. The practice of nations generally is to expect, essentially to require, that each nation shall acquire such knowledge, perhaps before formation of the nation and before each prospective head of state becomes a head of state, thus the norm with respect to notice is for acquisition, rather than for delivery of the notice. Since this covers peremptory norms, among others, this, itself, is in the peremptory norms. This norm applies even when the norms are available only in languages other than those that are official or in which fluency is widespread in the receiving nation; the receiving nation has the duty to know the norms even if that requires getting a translation (including interpretation if the source is verbal) from somewhere, the receiving nation being responsible for the quality of the translation; if the language is too little known outside of enemy nations (enemies having a conflict of interest adversely affecting disclosure) then such content may not be part of the norms until it is reliably transmitted elsewhere. An exception to the duty to acquire notice may be when a nation is the custodian of evidence of a norm; in that case, a copy of that evidence may have to be made available to all other nations in order to prevent concealment of the norm from a party responsible for compliance or entitled to a right by the norm. For example, a nation may not use its right to intellectual property to refuse to disclose a necessary text or to charge an unreasonable fee for such disclosure. The duty that attends to being such a custodian includes the duty to initiate almost immediate notice to other nations, not awaiting a dispute or a prospective recipient’s request or claim of a need to know.

When nations have different views on the content of the norms, including nations that are enemies or allies of a given nation or are neutrals (discussed infra as to their history) with respect to the given nation, the given nation has a duty to know the norms including from the perspectives of other nations, even of enemies, although that does not require agreeing with errors in the other nations’ understandings or perceptions of the norms. It being too dangerous to world order and peace and people’s lives and development that ignorance or error be too high, it appears that the norms are generally known among nations, especially by their heads of state, the heads’ principal aides, and the nations’ highest judges, and by speakers of law on point, often professors (terminologically, I’m unsure whether “speakers” include heads and judges but, for this essay, I’ll assume they don’t). While the heads of state and the highest judges in most pairs of nations (a pair being any two nations regardless of relationship) may so substantially differ in their knowledge of the norms as to raise questions of notice of the law, it may be that defect of notice is not legally admissible as a response in an international dispute over the application of the norms to given facts.

One High Judge or Several in a Nation

In any of various nations, multiple judges may serve as the highest judges of that nation, if domestic law so provides. For instance, in the U.S., the Supreme Court of the United States is the highest court in a three-level Federal judiciary that is higher than State and local courts, administrative adjudicatory systems, the military judiciary, and all other domestic systems of adjudication. The Supreme Court is presently composed of nine Justices, not the Chief Justice alone.

But domestic law may be nonconformant with the norms and, if there is a conflict between them, domestic legal provisions are, to that extent, not law. This opens a question of whether, as far as the norms are concerned, the highest judges, who may alter the content of the norms, are, in the case of the U.S., the nine Justices or only the Chief Justice.

The norms likely have the same law for all nations. The norms likely used to specify a limit of one high judge per nation. If the norms no longer do but permit a nation to designate a high court to fulfill the role formerly assigned to the single high judge, then the norms were effectively amended.

If it is still only one judge per nation, then, in the U.S., presumably an eight-to-one vote by the Supreme Court ruling (even implicitly) on the norms in which the Chief Justice voted alone against all of the Associate Justices could not be viewed only for the interpretation by the majority, as it is for domestic law. Whether it makes a difference if the norms are explicitly, only implicitly but not much debatably, or only implicitly and very debatably referenced in the Chief Justice’s opinion, whether it makes a difference if the Chief Justice writes essentially a critique of the majority view or essentially asserts that the majority is critiquing the Chief Justice’s view purporting to state the law, and whether it makes a difference if the Court issues the opinion as a dissent, as it often does, or if the Court must declare the opinion to be a decision and opinion of the whole Court may be open questions. Closely related is the question of the Chief Justice issuing a concurring opinion that differs from the opinion of the Court on a point of law here relevant. Either a dissent or a concurrence may be issued by more than one justice, and that likely affects these questions. However, dissents and concurrences are not what are considered Opinions of the Court, generally binding on parties and on courts below; concurrences and dissents have no binding effect, although sometimes persuasive. An additional question is for per curiam judgments (normally but not always without opinions), which are unsigned; whether the Chief Justice must explicitly agree with a per curiam order for it to effectively amend the set of norms may be an open question. One possibility, perhaps unprecedented, would be the Chief Justice alone and on behalf of the whole Court, but against the unanimous opinion of all other Justices, issuing a legal opinion on the norms purporting to amend the world’s understanding thereof; the legal effect of that is moot; consideration should include whether the President did authorize, or did attempt to authorize, the Chief Justice so to act, or did not, such authorization not being referenced in the Constitution but implicit in the norms because of the rights and duties of the head of state.

It would be interesting if, with or without Presidential authority, any Chief Justice acting alone ever asserted an authority to decide the norms and overrule all of the other justices and blocked reconsideration by the Court as a whole.

This ambivalence, about the Chief Justice differing from the majority of the Court, could lead to a court judgment being understood one way for domestic law, because based on a majority vote in which the Chief Justice was only a dissenter, and understood contrarily for the norms, because of the Chief Justice’s solitary or minority opinion being the only opinion that determines the norms. The decision so to interpret for the norms might well not be made in the nation of that court but might be made by the larger community of nations seeking to stay up to date with developments in the norms. That decision so to interpret the ruling would likely be beyond the control of any one nation. Historically and prehistorically, what’s likely is that most nations, being less populous than today, used to have only one high judge each; perhaps having multiple high judges per nation has only relatively recently become typical (if typical), and it may not be clear whether the norms accept multiplicity of judges in the highest court of each nation for the updating of the norms.

Ambivalence in whether a multi-judge court or a judge decided on changing the norms or discovering the changed norms probably would result in the world community finding no change in the norms unless clearly approved by the single highest judge of at least one nation, and almost certainly, depending on the content, more nations.

Lower judges, at least as to judges of lower courts, are not recognized by the norms for the purpose. While it may be standard practice in all nations except the very smallest to have levels of judges, all but the highest are irrelevant to the pronouncing of the norms. A pronouncement from the highest judge or court could be based on a judgment from a lower court but the pronouncement by a lower court would not be internationally valid as law on the norms until the highest court had issued its agreement with it (if it does). An analogy in U.S. law is the Supreme Court not considering the law of one of the fifty States of the U.S. until ruled on by the highest State court of that State.

Amendability and Development
Fundaments

Some norms can be amended. Some purportedly cannot be, although that is arguable, as discussed supra.

A treaty can be a predicate for amendment of the norms, albeit not directly, as when a principle agreed to by a treaty agreed to by most nations of the world becomes normative among nonparty nations, too. That being the case, a norm can lose its normativity through a similar process, by loss of applicability to nations which agreed to a treaty to which most nations of the world have agreed so that normativity is also lost among nonparty nations; and that loss of applicability can occur through unambiguously conspicuous silence or by displacement by a contradictory principle.

Perhaps amendment of the norms could also be by erosion or worldwide nonassertion of a right over a very long time until its retention becomes, in the eyes of most or all nations, especially potentially beneficiary nations, unnecessary. And some prehistoric norms might simply have been forgotten before the beginning of proto-history; or remembered only subconsciously, thus effectively forgotten but perhaps influencing human behavior nonetheless.

Since norms can be determined partly from the practice of nations, if a nation wants to prevent a prospective norm from becoming a current norm by making its state practice contradict formation of such a norm and if the prospective norm if not a current norm is not otherwise a law for that nation, it must act contrarily to that prospective norm even domestically (assuming a domestic opportunity arises). To make its contrary stance clear to other nations, especially enemies and neutrals, it likely needs to do it visibly under circumstances where it could have maintained consistency at the same or lower cost to itself and to do it with the knowledge and will of the head of state on the open record. It may need to create a domestic opportunity. An open question is whether, if it needs to create that opportunity, it may overrule domestic law that would prevent or delay the creation of such an opportunity. Either it does not have to so act contrarily if a domestic opportunity would be needed to do so but doesn’t exist or it has the authority to overrule domestic law insofar as needed to create that opportunity; I think the former is the likelier law by the norms.

Contradictory Norms

Contradictions between norms, although unusual, can occur. One way is because the norms come from different legal and general cultures and sources and the nations, heads, judges, and speakers communicate in different languages that can’t all be precisely translated into each other (e.g., those norms primarily governing the relationship between India and its less-powerful neighbors may only be in Hindi or Sanskrit). Another way is that nation A winning a war against nation B thereby establishing one norm while nation C winning a war against nation D so as to establish a contrary norm with no resolution between the two norms likely results in a legal ambiguity for all other nations. That may need resolution. However, people tend to stability in their views and tend to accept rulings on law coming from a relatively small and select group of respected legal specialists, who, like other specialists, tend to make contradicting their colleagues in the same specialty over time infrequent and, after a brief time, usually insignificant on an issue, thus enhancing their own credibility and the stability of the norms.

Nonfinality and Error

While there likely is finality as to a particular case, there’s no single authority akin to a tribunal or executive to whom to submit a question of the law of the norms for an interpretive decision that would be binding on all future cases. Even an unconditional surrender due to a justified war may yield little or no guidance for the future. And legal research into the content is more difficult where codification is absent, and especially where writing or another presently-functional ambiguity reduction system is absent. Thus, the risk of error is higher than with some other bodies of law.

Limit on Topics and Grounds for War

Peace in the long term is more beneficial. Because, on the one hand, war destroys not only people and other resources but also almost all the trust between the belligerents and some others and, on the other, substantial international peace allows people and resources to multiply and trust to both intensify and spread both between nations and, as each nation perceives less international threat to its existence and integrity, within the nation, peace is preferred by nations.

That grown trust in peace, viz., in leaving each other alone, allows growth in cooperation, especially when cooperation is bilaterally perceived as yet more beneficial than leaving each other alone. Cooperation is a basis of agreements, formal and otherwise, that allow, e.g., exchange of one’s surplus to fulfill one’s wants (including needs) and peers from different specialties to rely on each other’s conclusions. (Agreements for exchange, while often thought of as characteristic of capitalism, also, in a sense, are characteristic of socialism, where they may incorporate governmental intermediation of movements of capital (including state-owned) and products to satisfy wants. Such agreements, in their varied forms, are not limited to any particular economic system.) Those kinds of agreements generally have led, not always but often, to growth in economic prosperity and governmental stability, both of which, through taxation and other means, have supported growth in education, horizontally and vertically, in creativity, in research, and in layers of freedom.

Thus, in short, the norms, in some form likely to be found today or in most of history, and their limits on war are necessary for economic prosperity, governmental stability, nearly-universal literacy, academic excellence, world-class discovery and inventiveness, and individual, family, and group liberty. The norms and their limits on war also support the freedom of a nation to act within itself more or less as it sees fit. Thus, the present norms require minimization of international war. The norms do because most nations do.

That may have grown out of experience. It probably did not escape notice among ancient heads of state that if consensus (not even unanimity) is not achievable on a topic20 that is then made a topic of the norms themselves, resulting in the norms creating legal rights and duties in more topics, so that more acts become violations (herein, acts include omissions), wars increase. In that case, a desire for fewer or lesser wars commends leaving some topics out of the norms and to be decided in treaties and domestic law. For example, domestic matters such as schoolchildren’s curricula and national economic systems have aggravated international relations, but, because they’re not ground for war by the norms, wars related to them have been justified on other grounds or have been averted. Thus, aversion to war tends to limit the topics encompassed by the norms.

Balance of Power Between Large and Small Nations

While the norms generally favor the more-powerful nations, that is not absolute. Since less-powerful nations will generally be on the receiving end of other nations’ desires to enforce norms and less able to enforce any themselves except in the unusual case when they can assemble a large enough alliance to overcome their own weakness, they may wish to be excused from obeying the norms, but they won’t be, and they may sometimes benefit from the norms.

More-powerful nations may benefit from less-powerful nations existing, for example, as buffer nations (buffer states (states in international discourse are ‘nations’, not ‘parts of nations’)) between hostile neighbors where the more-powerful nations do not have to have responsibility for the welfare of people living in a buffer state or can learn from an innovation tested by a buffer state, approximately the case with Hong Kong although it’s not a separate nation. Leaving some advantages to less-powerful nations may give them a vested interest in preserving a system of norms, and, if the less-powerful nations are more numerous and share a substantially-sized total population, leaving them some advantage has pragmatic value for world stability and relative peace (peace being defined herein as ‘absence of war or of a lesser breach of sovereignty justified as for war’) by which both the more- and the less-powerful benefit.

In practice, some of the less-powerful nations grow, perhaps partly because of some advantages in the norms, although they may also get crushed by the same norms or they may grow despite the norms. In the more specific context of military strength, because enforcement may be by war and the norms tend to favor the stronger over the weaker, the norms tend to favor the militarily stronger over the militarily weaker.

They do not, however, guarantee permanent relative strength. Any nation, by the norms, always having a right of future self-defense under some circumstances, including by being an ally, may strengthen its ability to wage self-defensive war, which includes appropriately scaled offensive war for cases where nonoffensive war is inadequate for self-defense. It may thereby gain practice and thereby become militarily stronger, even though a desire to practice is not, by itself, a ground for war by the norms.

That, however, leads to a risk for a weaker nation strengthening itself, that another nation might come to fear it and invoke its right of self-defense against the still-weaker nation in order to destroy the growing threat, by either destroying the nation or making it even weaker than it was before it started building up. For a military response to that, the weaker nation can seek allies who do not believe the weaker nation’s build-up is a threat warranting a war against it. The best political response of the weaker nation building itself up is to continually reassure both the fearful nation and other nations of its good intentions, thereby making it politically and perhaps legally difficult for the fearful nation to wage war against the weaker nation building itself, until the weaker nation eventually achieves its desired strength relative to other nations in question.

A Nation vs. a Person

Since any act of a nation is necessarily an act by at least one person within the nation’s responsibility, if such a person does an act which if done by the nation would be a violation of the norms, then that act is a violation by the nation of the norms. Thus, the nation may not let that person violate the norms.

The person being a private person (private person may not be defined in anything higher than a treaty or domestic law) or a non-state actor is irrelevant. Whether the nation approved or even knew of the act is irrelevant. Singling the person out for punishment by a foreign nation may be insufficient, such as if the person was willing to commit suicide. If a war against the nation is justified, the authorized scale of war may be beyond the one person. Thus, in some cases, because of the person’s act, the nation as a whole can legally be punished by war.

The responsibility of a nation for such a person is an approximate corollary to the nation having rights internationally with respect to its nationals outside of its borders, including with respect to a corporation that is its national due to where it incorporated and that operates abroad. A purported distinction between governmental and other acts may affect a decision of whether the violation is significant to another nation, but it is not solely determinative and the entire nation may be held as violative.

Ancient Roots for the Norms

Some of the norms in effect today could be millions of years old, if they date back to when humans, who have existed for about 4.3 million years, on an unknown date first divided themselves into communities that had infrequent but still some contact, communities that thus might have been proto-nations. We don’t know. Some might be even older. Some modern primates have been scientifically observed in the wild engaging in war and refuge. It is possible that modern primates, even though wild since birth, may have learned certain behaviors from humans, but we can’t know that yet, and perhaps they didn’t. If modern primate descendants of primate species from which humans evolved behave by any similar norm without having learned it from humans, the norm could have been established not only by agreement or coincidence (of which primates back then, as now, were probably capable) but by biological causation, such as from genes. An analogy is that natural language is partly biologically caused (e.g., nouns and verbs are normally stored in different areas of the human brain), as established by the work on linguistics by Noam Chomsky and subsequent scholars. However, even if biological causation were to be established beyond any reasonable doubt, exceptions occur, just as some people are born with six fingers on a hand, although the combined efforts of people who are exempt from the biological causation of a given norm would probably not be enough to amend the norm among most nations.

Nonetheless, how early it was that norms were developed has no bearing on their modern content and enforceability, except that biological causation could make amendment difficult. Biological causation might be particularly true of the norms that are simultaneously prehistoric and peremptory.

Enforceability of the Norms

Enforcement of a norm is within the usually wide discretion of each nation in whether and how to enforce, including possibly by war. War, when broadly defined, is ‘any breach of a nation’s sovereignty, no matter how tiny or trivial the breach, whether accidental or not or governmental or not, although for any breach the breacher and the breachee may each choose not to designate it as war’ and, for purposes of this essay and except as otherwise noted, international. Civil or intranational war is within the scope of domestic law and generally beyond the scope of this essay. War among stateless entities or between stateless entities and nations is generally legally similar to international war. A narrow definition excludes lesser breaches of sovereignty that nations choose not to have attract unwanted attention by calling them “war”.

I don’t know what label applies to a war that the belligerents choose not to call a war. There may not be one that is used with much consistency. That some smaller breaches are not called war by heads of state is consistent with how the general public may view them. In the U.S., many veterans of World War II tended to consider the subsequent conflict in Korea or the later conflict in Viet Nam as not “a real war”,21 although, by the norms, each was.

A breach of sovereignty can be very small and still damaging. While it may be futile to try to define the smallest possible breach, a small one could be an application for a visa on a false premise even though the application was immediately rejected.

An analogy in domestic law, at least in the U.S., to a breach of sovereignty by the norms could be, e.g., a denial of otherwise-lawful freedom of movement because a police officer decides to issue to an individual a summons for a violation or to arrest said individual on probable cause for a crime or a lawful order for compliance with certain procedures has been served on the individual because of the commencement of a civil suit.

An accident is forbidden by the norms if it would breach or threaten a nation’s sovereignty. (One exception is necessarily permitted: if in self-defense a nation attempting to defend itself or a nonbelligerent against an enemy’s instrument of war accidentally causes the instrument of war to breach another nation’s sovereignty then the fault lies with the user of the instrument and not with the well-meaning defender.) A nation is legally responsible for being careful enough not to have such an accident. If the nation has such an accident anyway, the nation and the accident may be responded to as if what was accidental was intentional. If a nation is unable to prevent such an accident in the future, depending on the potential accident, that inability may itself be a threat against another nation’s sovereignty and therefore may be ground for war against the nation with the inability to prevent the accident.

Peace and Stability

Hundreds of millions of people, perhaps billions, in a world population estimated at over seven billion,22 apparently have little or no first-hand experience of war in their lifetimes, to their knowledge. They have the relative stability and opportunities that the sustenance of relative peace permits. For society to have no war is, all else equal, more conservative of resources and more stabilizing than to have war. The norms’ limiting war to that which is justified and not over-scaled is likely based on a legal consensus of nations that peace is preferable to war. If that’s so, then the norms presume peace among all nations, the absence of peace being legally exceptional, even if factually continuous. This is analogous to the U.S. law presuming that all people already obey law, even new law (so presuming through the presumption of innocence and through it being an offense in libel to falsely claim to a third person that someone has committed a civil wrong), even if crime is factually continuous.

The world has retained some stability for thousands of years, probably millions and probably will for millennia, barring the sort of nonhuman event that causes so much rapid change to Earth and people that we can’t adapt the norms to fit in time. The evidence suggests that the norms may have been more successful than not in encouraging peace.

Politically, an antiwar position is partly circumscribed by the duty to enforce certain norms, those that nations, by the norms, may not refuse to enforce, including by waging war. However, that still leaves room for decisions to refrain from war in other cases. A prowar or antiwar position is generally about marginal cases, those in which nationals of a given nation disagree on whether to wage war in a given instance. That may be about logistics and other issues, but it often is a political decision and not a legal one, although it may look like a legal one. Because of the robustness or overrobustness of a domestic legal system, most of the public may believe a given or proposed war is unlawful when it is not, the knowledge that it is not being in the minds of a few people who have the legal training to recognize the norms, a knowledge that is scarce and in demand by national leadership and others, which gives them elite status, which creates a political risk for the sustenance of the war, although it may be relieved if another solution to the problem the war is meant to solve becomes viable or the goal implicit in the war’s justification becomes trivial or unimportant.

The set of norms as a single system, like law as a whole, likely has generally been perceived by the world’s people (insofar as the people perceive the norms at all) and/or its leadership as, on balance, serving the public’s interests well. In that case, people will generally prefer to preserve the system, even while reforming portions at times. The popular argument against letting foreigners control our destiny likely will persist but consistently fail.









Websites of Interest

(These URLs were as accessed , except as otherwise noted.)