Chapter 16:
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Legal Research Considerations
If a nation is strongly and popularly committed to its domestic legal system (and probably most are), even if not legally excessively, and most of the population goes through life rarely experiencing war at first hand, the nation is likely to need only rare recourse to the norms. That makes knowledge of them, among most people, rarely necessary.
So, knowledge of the norms is probably unlikely except among heads of state, military leaders, diplomatic leaders, judges with certain jurisdictions, specialized attorneys, and aides to and potential substitutes for the foregoing. This degree of specialization can lead to urgent disagreements and flippantly quick dismissals between those who know of the norms and those who don’t, even though many of those who don’t are high-quality attorneys and judges. Codification of the norms may exist but only as restatement or as treaty provision, thus inferior and not replacing reference back to the uncodified norms as superior. There probably is no presumption that any such codification is prima facie evidence of the uncodified norms.
Legal research depends partly on discovering authorities, including judicial ruliings accompanied by statements of the law in support, statements that typically include citations to the law on which relied. Citing the norms, however, presents a serious, probably often fatal, political problem for any court resolving important precedential litigation with published legal reasoning and conclusions of law by relying on uncontested points of law in the norms elucidated on the authority of professorial treatises authored over the preceding century by internationally recognized speakers of the norms whose points remain law. Even if all of the judges are appointed for life and enjoy the full confidence of everyone with authority to remove them, a court still needs governmental, professional, and popular acceptance of its many conclusions for enforceability and for a national willingness to agree with most future decisions without yet knowing them, and thus the court seeks and needs political acceptance and has to minimize creating political problems while still performing its duties. If the speakers were nationals of the court’s own nation, citing those speakers as authority would not likely undermine the court’s political authority. However, if those speakers, with the entire rest of this premise unchanged, were especially loyal nationals of nations that are mortal enemies of the court’s own nation whose personal life histories are disgustingly repulsive to the judges personally and in terms of the judges’ understanding of law on sundry other subjects and even more repulsive to the national populace, the political reaction to citing such speakers could lead to removal of the judges and reconsideration of the litigation’s outcome. Examples: Imagine if Saudi Arabia’s highest court or Nazi Germany’s highest court relied on Jewish speakers, the People’s Republic of China’s highest court relied on speakers from the pre-revolutionary mainland government (the Kuomintang) and from the Republic of China (in Taiwan) (that the People’s Republic considers Taiwan a renegade province of the People’s Republic and not an independent nation being irrelevant even if true because a speaker of law need not speak only for or from the speaker’s own nation), imagine if the Democratic People’s Republic of Korea’s highest court relied on speakers in Japan, the Republic of Korea, and the U.S., imagine if Iran’s highest court relied on Iraqi speakers or vice versa (thereby exposing the Sunni/Shia divide), and imagine if the U.S.’s high court relied on speakers from the Soviet Union under Stalin (the speaker having been imprisoned for loving Stalin but not Stalin’s successor as much), Nazi Germany under Hitler (the speaker arguing that the “final solution” should have been continued and expanded), Cuba under Fidel Castro right after he won militarily and canceled the election in favor of being appointed, and Kampuchea (Cambodia) under Pol Pot (the speaker denying there was any murder in the workers’ paradise). Even a judge the day before retirement and laurels would hardly conceive of taking a chance, as the judge would likely want to preserve the court’s good reputation past retirement and therefore the good repute attaching to the judge’s own prior work. Thus, it’s more likely that a court agreeing with such offensive but accurate sources would try to cite other law to the same legal end. If it can’t find other law to the same end, it might try to settle for law that it hopes would be close enough even with logical efforts at equivalency that don’t quite work, and the divergence would create a problem. Consequently, it can be that much more difficult to uncover the norms and the courts’ views on the norms, and perhaps, on some questions, even when judges are still serving, impossible.
Research tools may be more thorough and varied for domestic law, treaties, and physical natural law than for the norms.
How new nations and their leaders learn of the norms as law, especially in nations where whatever prior leaders said is almost entirely discredited, is probably either slowly or via facing war. It’s unlikely that other nations’ governments conduct neutral academies for newcomers, who might well view such efforts as hostile thinly-veiled threats of unjustifiable war. Allies and near-allies might advise but maybe not adequately.
