Chapter 15:
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Overrobustness of Domestic Law
Fundaments
Robustness turns into overrobustness if the norms are contradicted not only in popular belief but in legal application by the application of domestic law with respect to rights and obligations of parties. How often and how vitally that happens is impossible to know.
In the U.S., what is referred to as a “Constitutional crisis” may at times be due to a conflict between the norms and domestic law in the context of a robust widespread misbelief in the supremacy of the Constitution. A nation’s legal and political institutions and institutional leaders, except for the head of state et al., and not just the general public, may purport to apply domestic law in lieu of the norms. The result would be to understand and influence events in light of the wrong body of law. In the U.S., because of reliance on its published judicial precedents (Federal courts and perhaps others have a narrower meaning for published than is used in the same courts for, say, First Amendment or copyright cases), a judge may find it difficult to overrule domestic law to accept application of the norms. For some of this essay’s argument, there may be no such precedents, forcing reliance on other sources and probably commending an explanation about why other sources were being cited, so an adjudication based on them is not overturned or disregarded by other judges.
Avoiding confrontation between the norms and domestic law, or, more practicably, between the advocates of each against the other, could be a method for preserving both. Secrecy or obscurity could serve that purpose. Thus, a head of state could appear to rely on domestic law while actually relying on the norms. Even a convoluted reliance on domestic law could be safer than a direct and virtually uncontestable reliance on primary sources for the norms.
A misunderstanding that domestic law applies and the norms don’t exist could lead to war by or against the nation. However, a head, through anticipatory and careful work, may be able to navigate those shoals, preserve peace, and preserve most of the domestic law.
Overrobustness may preserve any nation’s control over its leadership, including its head of state, and it may have contributed to one nation’s high level of political power in the world, but it is unlawful.
Norms as Not Psychology
In the U.S., calling the norms the “norms” confuses probably almost all Americans, in part because of Americans’ exceptionalist self-view, by which something is the norm but our being an exception for many things in the world is license to overrule a mere norm whenever convenient. Overruling extralegal norms is a large part of U.S. success and national growth; for example, it has become normal to be an employee, a majority of people 16 years and over are employed76 but a minority of people are entrepreneurs77 and those exceptions have coincided with increases in the U.S. gross national product and income per capita in modern decades. Norms are popularly viewed as a topic of clinical psychology, to which a stigma attaches, and U.S. domestic law is marked by a requirement of crispness, vagueness making a law domestically unconstitutional as failing to provide adequate guidance to affected people on how they should act. Yet, much of the norms probably can be more vague than U.S. domestic law is permitted to be. Despite all that, the norms are binding on everyone worldwide, just because everyone exists.
Not Admitting Norms’ Superiority
A member of then-U.S. President Obama’s national security staff said that correspondence from inside Congress with respect to Constitutional authority regarding Syria was interpreted as raising the spectre of impeachment; the staff member later said “we had no domestic legal basis” for a “military conflict” with the Syrian leadership.77a Assuming the norms authorized or required such a confict for enforcement against Syria, asserting a Constitutional restraint as preventing such a conflict could have been overrobustness.
In the U.S., debates have arisen over the copying of emails and telephone traffic information by the National Security Agency and whether the copying was needed to avert threats to the security of the nation, was an excessive invasion of privacy, and was lawful or not and whether a whistleblower who helped to reveal it should legally be punished or rewarded. The national government is seeking to convict and punish that person, who is in another nation, and already may have forced a third nation’s Presidential aircraft to land in a fourth nation, where it was searched.78
Related public debates addressed the U.S. conduct of wars in Viet Nam, Afghanistan, and Iraq and whether revealers of that conduct should be legally punished or pardoned. One was charged with the charges subsequently dismissed and the other was convicted and imprisoned.
Some public revelations from whistleblowers have met with widespread public reaction, positive and negative, some of that manifesting in legislative and private-sector changes that effectively reasserted the supremacy of domestic law, there being in the public view apparently nothing higher than domestic law, putting the head of state into a bit of a pickle. The head can explain to the public that there are the norms, why they are law at all, that they are superior to all domestic law, how they are enforced, the process of amendment (such as it is), that the nation has rights and obligations by them, some of the substantive law the norms provide, and some concrete examples of how they impact national life (the U.S. head for the – electoral terms, unlike most predecessors, also served as a law professor, titled specifically as a Senior Lecturer),79 but that would hardly be a popular speech and could well face popular rejection. While it might be helpful to set some groundwork in advance, probably by asking some supporters who are law professors and retired appellate judges able to persuade a broad swath of the public and especially its second-tier thought leaders (attorneys, news columnists, et al.) about the norms’ importance, that may not be enough.
Most people will not want to hear that they have even less power than they thought they had or that it’s mostly foreigners who control most of the norms, especially concerning if norms get amended adversely to a nation’s desire. We will not want to reject the authority figures who informed us since our impressionable adolescence of the supremacy of our own law and who continue to do so. We will not willingly let go of the power we think we have, especially when so many people agree and act accordingly and so many authorities concur and consequently grant us power in purely domestic disputes and even some international disputes.
Endorsements by Heads of State of the Norms in General
U.S. Presidents
The U.S. then-President, when nearing the end of two terms in office and an attorney and former university law lecturer,80 said to the United Nations in , “[s]ometimes I’m criticized in my own country for professing a belief in international norms and multilateral institutions. But I am convinced that in the long run, giving up some freedom of action -- not giving up our ability to protect ourselves or pursue our core interests, but binding ourselves to international rules over the long term -- enhances our security. And I think that’s not just true for us.”81
Even that statement perhaps did not go far enough in acknowledging the mandate of the norms in domestic life, since a nation is not in a position to be “giving up” some freedom, as if it had what it was giving before it gave it up, or “binding” itself, as if it was not bound at any time before, since the norms were already binding at the instant when each nation was founded and each nation was born with some limit on its freedom, a limit that was due to the norms.
While that President is a Democrat, the U.S. has a two-party electoral political system and the most recent previous Republican President, part of the way into the second term although not an attorney, said in Europe, in , “in order to be an accepted nation, a non-isolated nation, there are certain international norms that you must live by. And we expect them [“the North Koreans”] to live by those norms.”82
