What is Law?

Was Osama Bin Laden’s Assassination Lawful?

1.Was there legal authority under U.S. law for the assassination as military action? 2.Was it lawful under international law, or did it violate Pakistani sovereignty? 3.Was it in accord with American, or international norms of due process and judicial neutrality?

Was Osama Bin Laden’s Assassination Just?

1.Did it accord with fundamental principles of fairness and due process? 2.Did it provide compensation, closure, or satisfaction to the survivors of the 9/11 and other attacks? 3. Did it deprive those survivors and others the possibility of true justice via a trial?

What Do We Expect From Law?

Tamanaha, Rule of Law Primary Benefits: 1.Predictability between (a) citizens and government and (b) among citizens 2.Restricts Official Discretion 3.Peaceful Social Order 4.Promotes Economic Development 5.Justice Requires Equal Treatment

Tamanaha, Rule of Law Requirements: 1.Cultural Belief in Law 2.Independent Judiciary 3.Legal Profession and Tradition

Tamanaha, Rule of Law Not Required, Nor Identical With: 1.Democracy 2.Morality 3.Human Rights

Sources of Law Natural Law Customary Law Statutory Law Judicial Precedent (Common Law)

Natural Law Religious conception, or at least theistic (“endowed by their Creator”) Pre-exists state, beyond human choice, and universal (“inalienable”) Requires acceptance of premise and poorly defined (“these truths to be self-evident”)

Customary Law Specific to a single society – not universal: “the rights of Englishmen” Fills in natural rights due process comes to include jury trial Often relies on invented history “ancient constitution,” Magna Carta Should be understood as tradition, not history

Statutory Law Primary attribute is that it is clearly STATED and thus created by the sovereign Applies only within single state May be foundational (Constitution) or ordinary (regular statutes or regulations) Governed by legislative intent Sovereign may state law through its representatives

Judicial Precedent (Common Law) Judge-made Applies only within court’s jurisdiction Non-democratic, may be countermajoritarian Dependent on other forms of law, texts Driven by specific, often insoluble conflicts between other stated norms which require innovative solutions Mostly incremental, with few sudden changes

Fuller, “The Problem of the Grudge Informer,” 159 Based on actual case under Nazi rule Woman wanted to get rid of husband, makes false accusation Husband was sentenced to death, but was instead sent to Russian front Husband survives, comes back, and charges wife after war

Fuller, “The Problem of the Grudge Informer,” Deputy Ministers of Justice make recommendations What are their different concerns?

Trial of Border Guards, p. 19 East German guards charged with murder for shooting individuals trying to escape at border What are legal problems? What is decision?

Jackson at Nuremberg, p. 22 Trial of Nazi War Criminals 4 Powers Prosecuting: France, U.K., U.S., U.S.S.R. First ever War Crimes Trial – initiated under authority of U.N.

Wyzanski on Nuremberg, p. 22 No sympathy for defendants, but disputes legitimacy of trial Why?

Milosevic, “Illegitimacy of the Hague Tribunal,” 34 Milosevic is former president of Serbia, accused of crimes against humanity. Trial ended without verdict when Milosevic died in jail because of heart attack Hague Tribunal is a country specific trial court, designed specifically How does Milosevic make the case that such a specific prosecution is illegitimate?

Prosecutor v. Milosevic, 36 Hague Tribunal established by Resolution 827 of the United Nations Security Council in 1993 Joined by UN sanctioned International Criminal Tribunal for Rwanda Sir Richard George May (1938 –2004) was a British judge and politician before being appointed to Int’l Tribunal