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

Robustness of Domestic Law

Overruling domestic law would not be popular in many nations and probably should not be anywhere, even ones with legal systems that oppress most nationals, because people generally should be able to promulgate laws by which they themselves and their families and societies live. While, for some topics, a global power reach is needed, and that promotes national and international promulgation, local needs and a need for adaptational speed favor tailoring domestic law, and that usually generates more global diversity, which generally increases local optimism that domestic law will reflect local needs and, in turn, generally increases local awareness of what may be better ideas for adaptation, so that the benefits are attainable with less burdensome legal constraints, in which case the tendency is that fewer people resist the major laws. If the norms are designed to satisfy the lowest common denominator, that would generally be the lowest common denominator of the world’s population, which need not be the lowest common denominator of a smaller community, so that domestic law may meet a more exacting standard. It’s likely, therefore, that the nationals of most nations prefer their own respective bodies of domestic law. Even the nationals of nations that are monarchical (sometimes called dictatorial and of either a left or right political wing) or nearly so and who hate and want to overthrow their leaders likely prefer their own nations’ law precisely because it is their own. In systems of government that make it relatively easier for the nationals as a whole to amend their domestic law, loyalty to their own national law is likely higher than it is to international law, and especially to the norms. Where the nationals and the norms coincide on content, there’s likely also domestic law expressing the same kind of content as some of the norms have.

A head of state may prefer to preserve and enhance the domestic rule of law and to keep all of the domestic law appearing to be consistent with the norms or appearing to be the basis of the head’s acts that are really by the norms. Where nationals’ views, the norms, and domestic law largely coincide, the nationals likely maintain greater loyalty to the domestic law than to the norms. That loyalty gives robustness to the domestic law. That would often be expressed in a decision by someone responsible for enforcing a law, such as a judge or a head of state, relying explicitly on domestic law and not on identical international law.

The head has at least two legal advantages from the judiciary, at least in the U.S. and probably with equivalents in most nations. One is recognition of the head’s prerogatives by the norms. In the U.S., while many decisions of officials who are responsible to the President are successfully challenged in court, some decisions of the President are protected from judicial scrutiny specifically because they are decisions personally made by the President or by the Executive Branch, which is presided over by the President.

The other is in declining to supervise the conduct of war. U.S. courts leave that to the Executive Branch, which is headed by the President, who is, by definition, also the commander-in-chief and the head of state. The U.S. courts work deliberatively, which generally is too slow for the exigencies of war, so the courts prefer to defer on war to the Executive Branch. The deference obtains even if the issue at bar is grounded in an order not issued personally by the President but merely issued by someone apparently authorized to issue it.

The possibility of surrender in war reveals a utility to the robustness of domestic law. If the head of state surrenders the nation but enough of its nationals disagree with the head’s decision, domestic law may provide a mechanism or framework for voiding the head’s decision. It would be difficult or impossible if the enemy moves fast to consolidate, perhaps brutally, its post-surrender gains, but if resistance can solidify despite what the victor of the surrender does then the domestic lawfulness of the resistance will tend to give the resistance and the voiding more support among the public. That lawfulness can be established even after the surrender as long as it is before the victor consolidates enough of its gains to block the resistance. (On the other hand, even if the victor proves the surrender to other nations and thus can claim that the resistance is no more than an intranational (civil) war that is merely the victor’s domestic affair, so that foreign interference would be unlawful, another nation might side with the resistors and effectively, with effort and over time, void the surrender, and insofar as the voiding is grounded in domestic law being enforced by the resistors domestic law will have been robust.)

The application of domestic law against a claim that the norms require a different and domestically potentially unacceptable result appears, at least in the U.S., to depend on a domestic adjudicator either holding the norms to be not law, so that the judgment would be erroneous, or finding that the evidence offered in support of the claim to be inadequate, but the adjudicator is unable competently to make such a finding if the claimant is unwilling and cannot be compelled to assist the adjudicator with evidence and may be unable anyway, so that the judgment could be erroneous. However, if no other nation is willing to intervene, then the adjudicator might have purported authority within domestic law to render the final judgment on the matter if the head of state is weaker than other domestic institutions willing to enforce the judgment, and that purported authority would be effectively treated and undisturbed as full authority.

Generally, the robustness of domestic law lowers social chaos in favor of popular consistency in what acts will or won’t have negative major or minor legal consequences. While too much order is damaging to a society, so is too little, and where the two dividing lines surrounding what is not damaging lie varies between societies. Thus, domestic law is needed. In nations that address local needs more completely in their domestic law, public views and discourse are likely nearly silent on the norms. Thus, since a nation cannot simply exempt itself from the norms, whether a domestic legal system should explicitly or only implicitly accept the norms is mainly a domestic political decision, not a legal one.

In U.S. law, one feature of litigation in court is that the court generally need consider only arguments of law put forth by a party (the main exception being that in criminal cases some defenses must be considered even though not raised by a defendant). Only rarely does a criminal prosecutor or any party in a civil case assert the applicability of the norms or imply that the court is required to act in a way that could be grounded only in the norms. Thus, in most cases, that the norms allow overruling domestic law is not a consideration and domestic law is implicitly preserved and explicitly applied.

In U.S. practice, political events in early , after the Presidential iauguration, allow an inference that Presidential staff in the White House may be unaware of the norms as empowering the head of state, as the discourse from the White House relied on domestic statutory and Constitutional law as the principal argument for Presidential power over national security with respect to immigration. If the inference conforms to the knowledge held by the staff, the reliance on Constitution and statute adds to the history of reliance on domestic law rather than on international law, contributing to the robustness of the former.

If most nations have traditionally and today let most disputes be decided in accord with domestic law against the outcomes that the norms would provide, that’s not enough to find that the norms exempt those cases from the reach of the norms. There are already limits on the norms, but in cases where those limits apply then domestic law is not being applied contrary to the norms. It is with the cases to which the limits of the norms do not apply and domestic law was applied contrary to the requirements of the norms without the norms being applied that robustness of domestic law shades into overrobustness but generally with popular acceptance. To find new limits on the norms from such cases is a field for future research into the practice of nations from which the norms can be newly determined.

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