Libya and the Rule of Law

March 27, 2011

by Mario Rizzo  

Frank H. Knight had an important insight about economics. Howsoever we may seek to narrow it, the basic human interests that make the subject important lie at the intersection of ethics, the theory of knowledge, and psychology (at least in a broad sense).  Friedrich Hayek was also right to think that the insights of law and the insights of economics can be mutually beneficial.  

Classical liberalism, however, is not simply economics even in a broadened sense. It is a philosophy about the limits to state power and action even when the goals are alleged to be good or holy. Classical liberalism, as Hayek taught us, is about appropriate means and not simply about the desirability of ends.  

ThinkMarkets is vitally concerned with economics, it is true, but also more generally with classical liberalism and it application to real-world problems. Accordingly, one of the main concerns of this blog has been the rule of law (albeit applied mostly to issues of economic policy).  Another important concern has been the slippery slope processes that get policy-makers and, more importantly, the public into situations that are unforeseen and undesirable.  

This brings me to the Libya question. Although there are aspects of the decision of the Obama administration to lead the US and NATO in bombing Libya and establishing a “no-fly zone” that are beyond my specialized competence, the issue is not a narrow one. Legalistic discussions aside, there is much that is profoundly disturbing to a classical liberal in this venture.

Some observations:

1. The mission of NATO has changed from the days when the NATO Treaty was ratified by the US Senate. Even a cursory reading of the treaty and of the debate at the time will tell us that it was about joining forces to prevent an armed attack on the member nations, almost exclusively by the Soviet Union. The Soviet Union no longer exists. More importantly, no NATO nation was in danger of armed attack by Libya. We also have it on Secretary of Defense Robert Gates’s authority that the situation in Libya is not one in the “vital national interest.” Therefore, it seems to me that stripped of mumbo-jumbo there is no legal basis for the US engaging in a “humanitarian” bombing with NATO forces. (I should also add that it seems reasonable that with the change in mission a new NATO Treaty should have been submitted to the Senate for ratification. I fully understand how inconvenient for American foreign policy this would be. But should law follow convenience needs of a certain policy?)

2.  The willingness of the US to intervene in Libya, but not in other places in which there are great “humanitarian” issues, will take scholars a while to interpret fully. Yet it seems clear that the current policy is an attempt to demonstrate to the Arab world that all of the previous US intervention (selling arms, financial aid and so forth) to prop up tyrannical governments was somehow an aberration. Truly, some will say, the US is on the side of the long-suffering masses in the region. Libya is a convenient place to make that demonstration. So the previous (and current) policies supporting those tyrannical states that are useful to US foreign policy provide the basis for the further “remedial” intervention. However, if the results prove to be less than an improvement, the Arab world will know who to blame.

3. The US claims that the League of Arab Nations is with the US. They and many European countries “requested” that the US go in. We will never know what actually happened in the private discussions. However, I was very impressed when a representative of the Egyptian government (what is that right now?) said that Egypt will not participate in the initial bombing because it would be inappropriate for an Arab government to kill Arab civilians accidentally. (How tribalistic, and how clever if things go wrong later.) So let NATO kill them and bear the consequences.

4. The constant refrain about a “humanitarian” mission to save civilians (or is it to save former civilians who are now rebel soldiers?) is a travesty of any real notion of beneficence. In the first place, a state is not like an individual who can, and sometimes should, act spontaneously and gratuitously, to help others. The state, begotten of aggression and by aggression (Herbert Spencer), has a legal monopoly on the use of force and must always be constrained by legal obstacles. The idea of ad hoc humanitarian action flies in the face of the rule of law. It is, instead, the rule of men who claim that they have the purest of motives. Pure motives (impossible to ascertain in the case of states) are not a substitute for rules. In the absence of direct aggression again the US, a credible threat against the US, or even a “vital” national interest, where is the justification to bypass Congressional authorization? The Congressional power to declare war appears to mean nothing. The circumstances in which our bloated Executive will admit to the requirement of Congressional approval appear to be of academic interest only – if even that. We are told consultation with Congress is optional and is just about building political support.

5. The difficulty with using the putative humanitarian character of ends as a justification for foreign military intervention is that US voters are not in a position to know to what extent this is the real reason. One can always find “humanitarian” justifications for involvement in a war. Wars kill people, including civilians. Those who seek international power, control, and influence – for whatever reason – pure, naïve or corrupt – are in the position to paint the picture they want. How can the understandably ignorant voter figure out what is really going on and exercise meaningful control?

12 Responses to “Libya and the Rule of Law”


  1. I believe that it is Article 5 of the Nato agreement that authorizes Nato members to come to the defense of a member state attacked. The one and only time it was invoked was on behalf of the US after the 9-11-2001 attack. Libya clearly does not arise to the occasion. Even if it did, however, how does one overcome the constitutional hurdles raised by Mario?

    Even one of Fox News’ military analysts, a retired general, expressed the view that this intervention was ridiculous. We have been “snookered” by the French he said. I note that Fox and MSNBC (right and left) have sounded similar skepticism about the intervention.

    I heard Cong. Dennis Kucinich (D-OH) citing the Constitution against Obama, and calling the attacks an impeachable offense. Maybe we have progress on political principles, if not political practice.

  2. chidemkurdas Says:

    There’s a new interview with Gates where he tries to play a delicate balancing game. It seems:
    “The suggestion here is that NATO will not do very much to help the rebels to win, but it will backstop them to keep them from losing.”
    http://online.wsj.com/article/SB10001424052748704517404576224993450738166.html
    What that means legally and what effect it will have are anybody’s guess. One might invoke another Frank Knight insight–the one about risk vs. uncertainty. This is uncertainty, where the probability of the unknowns is unknown.

  3. Mario Rizzo Says:

    An interesting piece of news has appeared this morning. Sen. Lieberman is now saying that the intervention in Libya is a precedent that should worry the Syrian government. See:
    http://www.washingtontimes.com/news/2011/mar/27/lieberman-precedent-syrian-intervention/

    While I do not believe that intervention in Syria is likely right now, this attitude is an important aspect of the interventionist world view. “If we did that then, why should we not do this now?”

    Precedents can lead to slippery slope processes and results that further enmesh us in the warfare state.


  4. Has anyone noticed that Obama is implementing George Bush’s foreign policy with a recklessness that not even Bush was willing to employ. If there is a goal here, surely it is regime change in Syria. And that is very dangerous.

  5. Mario Rizzo Says:

    Yes, Jerry. I had a paragraph in the draft of the post above that I omitted for length reasons. So let me say now: At least George Bush got some sort of Congressional authorization for the Iraq invasion. My guess is that Obama was so embarrassed by his own “lack of consistency” that he did not want to spark a Congressional debate on the matter. So we get involved in a war without Congessional approval because a man doesn’t want to be embarrassed!

  6. curt Says:

    @Jerry

    Having created, by accident, the empire, and having done so for the purpose of exporting our market system, and its trade routes, we are stuck with the very real consequences of creating power vacuums if we withdraw our military power, and create opportunity for the greater cost of NOT acting as we are acting.

    We have, after all, made a nice profit out of bringing the Hindu and Sinic cultures into the modern era. We have, and continue, to make a profit bringing the Islamic cultures into the modern era – by exporting debt (that we may questionably have to pay for) rather than by collecting tariffs or taxes for having done so. These efforts have been made under the rubric of political democracy for the purpose of popular opinion, but are actually for the institutional purpose of creating an economically incentivized and politically enfranchised middle class that is invested in perpetuating the world market system.

    I do not think that there is disagreement among political economists that we would be better off without having to support the empire. But when faced with the very real, and very negative impact that a withdrawal would have on the average (pampered) american, and on the average (schumpeterian) public intellectual, practical heads prevail.

    As I understand it, the general thinking among the strategic thinkers (those who study military, political, and economic relationships, rather than just political, financial and social relationships) is that if we bear the burden long enough, the world will evolve into a sufficiently middle class economy (a synonym for democratic) that the purpose of the empire will decline at a rate equal to the relative importance of the american economy, allowing us to withdraw without creating shocks to the international system.

    A failure to understand military history is what separates ideological political economy from practicable political economy. Property rights are indeed the basis for prosperity. However, property rights are an institution that is created by the application of organized institutional violence. This fact is usually lost of ideological libertarians.

  7. Richard Ebeling Says:

    Members of the Obama administration have rationalized the intervention in Libya on the basis that it is the “international community” (including the Arab League) that has called for and justified these military actions.

    And it behooves the United States, as a member of that international community, to provide the “unique” capabilities that it has in the military arena to join in this global effort.

    In principle, this is suggesting that independent of a Congressional declaration of war, or any “clear and present danger” that requires the Commander-in-Chief to take immediate (“defensive”) military action to protect the United States, the armed forces and the tax dollars of the American people are at the disposal of that international community — clearly meaning a vote in the Security Council of the United Nations and associative international government coalitions.

    Good global citizenship by the U.S. government in the community of other governments dictates military intervention, when called for and agreed to.

    If taken seriously, even issues of “national interest” (even with all the slippery meanings that phrase can and does take on) is no longer the basis or rationale for American policemanship around the world — in “partnership” with the other international community members — along with the irrelevancy of the traditional rationales and legal bases for going to war under the Constitution.

    And by the way, what the hell does “kinetic action” mean? Which is another phrase now being used to explain what the U.S. is doing in Libya.

    Richard Ebeling

  8. Bogdan Enache Says:

    Off-topic : When I once used the word mumbo-jumbo, I meant complicated.

  9. Troy Camplin Says:

    wow, Curt, talk about ideological . . .

  10. bill butos Says:

    Couldn’t agree more with Mario’s post. We live in dangerous times because our government no longer abides by Constitutional constraints. As such, it has eroded if not destroyed its claim of legitimacy. Obama, whose motives seem driven almost purely by political expediency and 2012, has declared war on Libya while stubbornly refusing to acknowledge that that power in vested in the People via the Congress, a trend beginning in the aftermath of WW II that has brought us to Obama’s arrogance.


  11. mr. rizzo;
    would you be more comfortable if the united states bombed countries that were vital to american interests? who would decide these vital interests? what are they? oil? strategic geography? military bases?
    and do not these wars of vital interests morph into wars of not-so-vital interest, or facilitate wars such as the libyan model?
    if you are okay with these vital interest wars, that would make you a kinda sorta imperialist.
    the military is for the defense of our shores, to repel attack or invasion – for defense; not offense. only in response to an attack are offensive tactics to be used.
    no other wars are permissible. if the constitution isn’t enough of a guide, look to the kellogg briand act as well as other international proscriptions against aggressive war. nuremburg has a little something on the subject, also.
    the world will be a much safer place if america stops bombing it.
    much safer for everyone.

  12. Brad Says:

    Obviously you didn’t read Mario’s post.


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