Globalization and the law – Justice Antonin Scalia (2009)
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Globalization and the law – Justice Antonin Scalia (2009)

August 13, 2019


I’m happy to be here at the American Academy partly because I
think so highly of the American Academy. All the more highly since I’ve seen it
in operation in the time I’ve been here. But also
because I was a personal friend of Lloyd Cutler and I’m happy to play a part in honoring him. He was indeed the last
of the lawyers movers and shakers in Washington. I think we miss so that kind of person. I have to preface my remarks by stating the obvious that the views I
express are not necessarily those of the government of the United States. I speak as a legal
scholar and not as a government officer. I think we have to begin our consideration of
this topic “globalization and the law” by defining terms. The term
globalization is invoked to describe nearly
everything taking place in the world today. From the proliferation of the
Internet to the fall of communism. From NAFTA, the North American Free Trade
Agreement to the war in Iraq. Indeed the meaning of
globalization is often in the eye of the beholder and can evoke a range of emotions: from hope and pride to fear and disgust. Globalization is
simultaneously adored and abhorred by groups spanning the political spectrum. The difference between adoration and
abhorrance often turns upon what the term is taken to mean. Does it describe for example the rise of a world in which a respect for human rights is
universal? Or does it describe the rise of open markets and free trade
which may produce a McDonald’s on every corner in Shangri-La. The American Left traditionally supports
globalization when it means imposing their view of
proper social policy on the world: human rights, environmental protection,
protection for organized labor, separation of church and state. The
American right on the other hand supports globalization when it means
imposing their view of proper economic policy on the world:
free trade, intellectual property protection,
privatization. And while each side accuses the other of
imposing its values on the world while ignoring the wishes of local populations and the cultural differences between
nations, neither side seems willing to concede that its own preferred policies suffer from the same democracy deficit
as the others. In my remarks today I will use the term globalization to mean both these things: global harmonization of
social policies, which I shall call “cultural globalization”, and global
melding of economies which I shall call “commercial globalization”. I
think it may also be necessary to define the other principal term in the title: “Law”. In its most narrow but
also its most common sense, Law referrs to a set of rules which in the civil
field attach to private agreements or to private actions certain consequences that will be
enforced by the State and which in the criminal field attach
to certain private actions penal consequences imposed by the State. In its
most narrow sense there is no law without a coercive enforcer of the
law. The latins saying “nullum pena sine lege” no punishment can be imposed unless a
law has been violated has as its correlative “nulla lex sine imperio” no law has been violated unless it has
been prescribed by a governing power. This meaning of law is assuredly within
the topic I intend to to discuss and I shall refer to it as
state law. At the other extreme, law in its broadest
sense means those rules governing inanimate and animate including human action that nature
imposes. Thus, one may speak of the law of gravity or of the Natural Law that governs
human behavior. This sort of law is beyond the scope of my address and probably
beyond my ken. Somewhere between these two sorts
of law there is a “tertium quid”. We often refer to the law of nations or international law. This is to be found
in the uniform practice of civilized nations or in multilateral treaties that those
nations conclude. Originally, this sort of law pertain
only to the manner in which nation-states dealt with each
other but increasingly in modern times much of
it pertains to the way nations treat citizens of other nations and indeed to the ways nations treat their own citizens. This international
law is in a way the first type of law once removed in that
its rules are ultimately enforceable only to the extent that the
nation state continues to adhere to the International norm or to the treaty or to the extent
that other nation states force it to do so. This sort of law is within the scope of
my topic and I shall refer to it as international law. To discuss state law first. In many ways globalization and state law are at odds with each other. The very
notion of globalization evokes images of walls being torn down, boundaries ceasing to exist,
homogenization sweaping the earth. State law, on the other hand, has
traditionally been a tool used to erect barriers it thrives on borders and emphasizes
cultural and regional differences. Travel only a few miles from my home in
Virginia to the state of Maryland and you would find yourself subject to
a significantly different body of law. In many instances state law prevents people from crossing borders
at all. Despite all that, however, state law is unquestionably an essential tool for commercial globalization. International capital will not enter a
country where the rule of law does not exist. It is not essential though it is of
course useful that the state law rules be similar
to those of other countries but it is essential that state law rules
exist and that they can be relied upon to be
enforced. This lesson was learned by the countries
of Eastern Europe which emerged from communism without an
independent judiciary that could be relied upon to enforce contracts between private
parties and private parts and the State. But besides being essential for the
attraction of capital, state law is a ultimately indispensable
for the international harmonization of commercial rules and economic
policies for even when that harmonization is
provided for by international law it will ultimately be state law that
enforces it. And the same can be said for cultural
globalization: it cannot occur without the assistance
of state law. For example, globalization of the
principle of equal rights for women can certainly not occur until state laws
abridging women’s rights are repealed. In the last analysis, for any sort of globalization state law
is indispensable. It may not lead the way (movies, books, international contacts may prepare a
society for for women’s rights) but it must go
along. Can state law alone without the
assistance of international law achieve commercial and cultural
globalization? Even though the instinctive state law is
as I have said local rather than global it can achieve globalization though it
will not often do so. The United States as you all know is a
federation of sovereign states. At the end of the 19th century
commercial law in our country was in chaos. In the words of Grant
Gilmore it “closely resemble that obscure
wood in which Dante discovered the gates
of hell”. Part of the problem was that the state
laws were arcane, outmoded and overly complex. But Karl Lewellyng described the larger
problem in one simple sentence: “paper ran across state lines but law
didn’t”. Everyone of the states had its own
nuance commercial laws making it exceedingly
difficult for merchants and corporations to engage in interstate commerce or for
lawyers to give advice on how to do so. Around the turn of the
20th century however, a nationwide movement arose which
emphasize uniformity among state laws and committees began drafting model laws
for the states to adopt. In 1897, the National Conference of
Commissioners on Uniform State Laws drafted the uniform negotiable
instruments law. Following that were the uniform
warehouse receipt act and the uniform sales act in 1906. The uniform bills of lading act and the
uniform Stock Transfer Act in 1909. The uniform conditional sales act in
1918 and the uniform trust receipts act in
1933. By 1940 many of these model uniform laws
have been passed by all or a majority of the States. Lewellyn described the promulgation of
the uniform negotiable instruments law as follows: “for 2500 pages of Daniel (Daniel was a practitioner’s
guide book on the commercial law of the various states) they propose to
substitute 25 pages of code language much of which
an ordinary man can understand. For 40 or 50 divergent bodies of law they proposed to substitute a single body. Where possible they propose to simplify
and clarify matters which the cases had left obscure. Wall Street knew indeed
that these goals were impossible but somehow the Code got passed
all over the country and bankers started to live with it and
to live by it”. The movement toward state harmonization reached its climax in our country in 1940 with the drafting of the overarching
Uniform Commercial Code. I taughted one year at the University of Virginia. God! 4 days a week for a whole semester… I left teaching the next year. The overarching a Uniform Commercial Code a single code
governing nearly all of commercial law which was adopted
more or less wholesale by all the states no later than 1967 due in no small part to the UCC goods
in the United States today flow more or less freely or as freely across state lines as they
do between neighbors. All of this was done I emphasize not by having the federal government
promulgated the commercial code but by getting the individual states to
harmonize their own codes and incidentally the
harmonization was not entire some states have declined to adopt minor
provisions of the UCC and all states retained the power to
change their law whenever they wish which of course would not be the
case if if the UCC were a federal prescription. I prefer this manner of
globalization globalization through state law because
it is the most democratic. Democracy consists of people’s assent
to be governed by the majority will of a particular society. At the national level the society
recognized as a sovereign state when globalization is achieved by
voluntary and cancellable action of an individual
state democracy is maximized. International law on the other hand is inherently less democratic if not undemocratic. The very purpose of international law is
to constrain the choices of these particular societies. these otherwise sovereign nations, either
to stop them from making selfish decisions that impose external costs on others or to stop them from making unwise or
unjust decisions that impose internal costs on their own citizens. And anytime a
sovereign nation’s choices are constrained the people of that nation
necessarily exercise slightly less democratic control over
their destiny. It is true of course that a democratic
state enters into treaties only through procedures that presumably
insure the consent of the people. I say presumably because in most nations
including my own the treaty-making power is more
insulated than most political decisions from
popular control. But reducing democracy by democratic
choice is a reduction of democracy nonetheless. An elected monarch for life is still a
monarch. The European Union is the most obvious
example of how democratic choice can reduce democracy. Some Member States joined the Union through properly popularly ratify treaties but as I will
discuss later its effect is nonetheless to reduce democratic choice. And it is also true that any sovereign
state has the power to repudiate its treaties. So in this sense it can be said that the
people of a democratic state ultimately remain in control. Much as it could be said that the people
who elected a monarch for life can unelect him. But this is a control
more readily available in theory than in fact: apart from sheer inertia, there are
enormous international pressures and vested
domestic interests that render repudiation of major treaties
impracticable. Although as I have said globalization
is possible through state law alone as we did to the UCC it is undoubtedly the case that the
principal impetus towards globalization,
globalization both types, will be through international law.
Harmonization of nation state laws without some sort of treaty is bound to be exceedingly rare. The United Nations Commission on
international trade law UNCITRAL, I think is the acronym has proposed a global commercial code similar in nature to the UCC. That could conceivably be adopted state
by state without benefit of the treaty but it is far more likely to take room
worldwide if it is presented as a treaty for nations to ratify or reject. But treaties can be of two basic types
which vary considerably in the extent to which they eliminate
democratic choice. The type I prefer because it allows a
greater degree of democratic choice is the treaty in which member nations
at a single point in time agree to abide by a set of specific
rules that is specifically set forth. Examples
include everything from the Geneva Conventions to the Kyoto Protocol on global warming. Entering into such a treaty does deprive
a state of democratic choice but what it has committed to is clear and specific. Joining such a treaty is a
single act of diminishing sovereignty with
long-term consequences. Much of the globalization that has been
achieved is the product of such treaties. Professor Paul Dubinsky described the
progress made in this fashion towards the harmonization of private law
as follows: “by the end of the Twentieth century
cornerstones were laid for local principles of contract law, transnational Rules of Civil Procedure, a global regime for transnational
bankruptcies, a regime for the worldwide recognition
of civil judgments and global rules and jurisdiction. More
than 60 nations have ratified the UN Convention on Contracts for the International Sale
of Goods enabling goods to be traded around
much of the global free in the uncertainty caused by
differences in national laws. Elsewhere a series of multinational
treaties have improved various aspects of financing thereby
lowering the cost of many international translations transactions”. That’s the conclusion
of the quote All that was done through the first
type of international law. The second type which I do not so much
favor consists of the treaty that establishes
a standing international institution, sometimes an
international court that has power to prescribe actions that
must be taken to achieve agreed-upon goals described
in the treaty at a high level of generality. Such international institutions are
particularly harmful to democracy because they are empowered to require on
a continuing and ever-changing basis actions that have never been specifically agreed
to by the signatory states and they are nonetheless
unaccountable to any elector. The most prominent example in
my estimation is the European Union. To be sure it has an elected parliament
but as a practical matter its key decks are determined by an elected Commission and interpreted and enforced by a
non-elected court. As professor Jeremy Rankin explains the
member states of that organization must “submit to rules and
regulations drawn up by the European Commission in
Brussels and enforced by the European Court of Justice in Luxembourg. The ECJ (European Court of Justice) even claims and exercises the authority to invalidate enactment
of national parliaments if they conflict with European law. In a
process the ECJ itself describes as developing “constitutional norms for Europe”. In this system which Rankin calls
euro-governance even the national constitutions of member
states “can now be overridden by bureaucratic
directives resting on nothing more then the say-so of officials in Brussels”. The European Union has principally
concerned itself to date at least with commercial globalization. A treaty established institution
functioning in the same region that has concern itself with cultural
globalization is the Court of Human Rights, which enforces the requirements of the European
Convention on Human Rights. Needless to say, I am all in favor of
human rights but there is to put it mildly
considerable disagreement from state to state, society to society as to what human
rights consist of. Is there a right to same-sex marriage? To
abortion? To public nudity? To assisted suicide? To exemption from capital punishment? To
bigamy? To criticism of religious or ethnic groups? All these questions aroused considerable
disagreement not only between various states but even between the citizens of a
single state. They are often the controversial topics
on which domestic elections all won or lost. It is a prescription for
elimination of democracy to establish a Court that is to provide a
binding and authoritative answer to these questions under governing terms that are no more
specific than to take a few examples from the
Convention on Human Rights: “the right to respect for private and
family life” “the right to be free of degrading
treatment” and the right to “liberty and
security of the person”. One might as well prescribe “do good and
avoid evil.” It might be possible to have a more
democratic regime with the meaning of those vague terms were determined by the accepted
consensus of the signatory parties when the
treaty was concluded. One might ask, for example, were their
national laws at that time in agreement that
homosexual conduct was protected? Whether or not the
search for such consensus could be fruitful, the Court for Human Rights has chosen not to conduct it. The Convention it has said is “a living instrument which must
be interpreted in the light of present-day conditions.” Which means, essentially, that the answers
to these and many other questions will be decided from year to year by a
court consisting of judges from all the signatory states on no
basis other than their own perception of what
human rights ought to be. I might mention that it is also a
prescription for the elimination democracy to give a national court the
power to provide a binding authority to answer to such
questions, unless the vague terms such as “equal
protection of the laws”, “due process of the law”, which appear in the United States
Constitution, are to be given content by the acknowledge practices of the society
when those terms were democratically adopted. In modern times, my court has rejected that approach but that is
another subject for another day or was a subject for yesterday. At least… but at least when a national
court deprives you of democratic choice you are being governed by your own countrymen. That is at least you know a modest comfort. We had a case in my court contending
that the state’s criminalization of homosexual sodomy was unconstitutional.
We held, over over my dissent, that it was. In the
course of the argument, the petitioner pointed out that homosexual sodomy was
law throughout Europe. Indeed it was. Not,
however, because of a democratic choice by the people of Europe but because of a decree of
the Court of Human Rights. Absent that decree, the debate over that
issue in Europe might be as robust as it is elsewhere in
the world where 79 nations prohibit the
practice and 76 do not. Resolving the question by judicial
decree is much less satisfactory, it seems to me,
because it is much less democratic. Then the manner in which the signatories
to the convention abolish the death penalty. That they did by an explicit protocol
added to the convention which nearly all signatories ratified. That is an example of the the first type of international law,
which I much prefer: an agreement by the signatories to a
specific course of conduct. I cannot avoid
adding, however, that even this first type of international law does not as I have said earlier reflect
democratic choice as faithfully as state law does. You know I quote from a scholar in an article titled “Unilateralism
and constitutionalism”: “actual public opinion in Europe tends to
favor capital punishment in some countries at about the same rate as the
United States”. In recent years, the use of courts as the instruments of cultural
harmonization has grown apace. As your co-chairman, Henry Kissinger put it “in less than a decade an unprecedented
concept has emerged to submit international politics to
judicial procedures. That concept has spread with
extraordinary speed and has not been subject to systematic
debate. International adjudication is being pushed to extremes which risk substituting the tyranny of
judges for that of governments. Historically, the
dictatorship of the virtuous has often led to inquisitions and even witch hunts”. That phrase, that Dr. Kissinger used,
“dictatorship of the virtuous” is terribly appropriate. I am convinced that the reason judges
are being put in charge of human rights determinations is that
human rights is virtue, they are a matter of
basic public morality. So there must be a right answer to human rights questions. You would never think of leaving questions of economic policy to judges because and in that field there’s plenty of
room for disagreement. But surely there is a right and wrong
answer to human rights. That same attitude of moral certainty explains why the europeans are so self
righteously critical of the United States with respect to capital punishment. The
punishment they themselves allow not long ago. As
Professor Rubenfeld explains european diplomats and politicians not
only excoriate the United States for allowing the death penalty but even call for our expulsion from
international organizations, such as the Council of Europe. The
american view holds that democratic nations can sometimes differ on matters of fundamental rights. For
example, freedom of speech is stronger in America than in many other nations. An individual has the constitutional
right in the United States to make statements in favor of nazism. That might land a person in jail in Germany. Yet the United States does not demand
that Germany change its law on this point or risk expulsion from international
organizations. And again in America today it’s a
bedrock principle of constitutional freedom that there
be no established church at any level of government. But the
american position does not require every nation with an established church such as England or Italy to desestablish. It is the assumption of moral certainty that explains the
europeans position just as it explains their willingness to leave many such matters to judges. Let me not be misunderstood, I believe in human rights. I believe in natural law and hence believe that there is indeed a
right and wrong answer to many though perhaps not all questions of human rights. The
problem is that there is nothing approaching universal agreement concerning which questions are answered
by natural law or indeed concerning what the answers may be. Thus, it makes no more sense in a
democratic society to leave these moral questions to judges than it does to leave any other
questions to them. In sum, state law is in both theory and
practice essential to any sort of globalization,
commercial or cultural, and international law of one
sort or another is also essential as a practical matter. Globalization is unlikely to occur in many areas
without it. But a democratic society should be
careful about the motive international law it selects. By far the most desirable as a treaty
dealing in great specificity with a particular subject and by far the
least desirable is a treaty expressing vague objectives,
whether economic or cultural, and committed to the implementation of
an international commission or an international court. Thank you. I agree to take questions not
necessarily answer them that but I’m yeah yes. City and wonderful discussions he was just area and resists to take my last opportunity one I E just want to test the implications upwards US am there are two international
organizations which a more important for the united
states of america then European Union which establish international organization established
institutions which designed to Minister vague terms these two organizations are
called United Nations and nuttal now if these organizations with knots be able without its express change of that turns to adapts to such situations as the end of the
Cold War changing conflict paradigm we wouldn’t not react in the way we do and in particular
the United States would not have the app the option of reacting to changes in the
way it wants to now the question is is democracy really the way you
understand is so valuable to deprive us of such an instrument or does not US Constitution by saying that treaties exist and that they may be
ratified in trusts the executive in collaboration with the legislature or
to conclude such treaties and have the mechanisms established Witcher appropriate for the
time all profit for the challenge times think well i i don’t know what you’re
referring to I don’t know that the united nations has
any power to prescribe either commercial or
cultural conduct in the United States we have such as one through word yes just head be debates in Europe about United
Nations sanctions and European Court of Justice has
rendered an opinion about the possibilities and limits UN
sanctions sanctioning individuals living in any
member state of the United Nations and this case could have risen United
States as well for sanction improve I elation hope what here in the US United Nations Charter
terrorist suspects which a whose his property and money is taken away for a while
suspended and what what review and revision of the
charter give give give there is there is a
rather be position in the UN Charter saying United this is this Security Council may if it considers that there’s a threat to
the peace impose sanctions and large states to
take certain very specific we have the only in the security council and if you
don’t exercise its a next a weekend exercises that’s and that’s the
big boy named and as for nato I don’t again don’t know
how on a hookah missus to any commercial for cultural globalization what what
does nato committees to accept to defend other members of the Alliance who are
tagged with nato empowers us our understanding to do lot of
cultural changed Dunster well I i’m do it or not you know be I think that’s
a stretch I really do I i don’t view either here what what what commitment we’ve
made to the UN or what commitment we made to nato as enabling either of those
organizations to control the lives american citizens the way the the way economic and cultural globalization can the way
decisions over the other love according to human rights the
Indian in Strasbourg can for a we we we with
respect to European countries we nothing in the UN Charter and nato
you is remotely similar to that wait and see I well I’m glad we have the veto power a yessir mmm as is believed that you coming %uh my name is Joe Harrington and I’m
partisan minority in the room were not lawyers sunday probably not venture to find
legal area have one small company one small
question: common is actually about you mentioned by doctor kissinger talking
about possession my field not witchcraft that actually the witch
hunt it was when train jurist got more ball in the criteria for prove and more rigorous process raised that it was
pretty actually dimension think this action
argument that when judges courts to get involved
contrary to the more democratic option up burning
witches was good that my question is this: standards I don’t
mean this is a rhetorical question that’s been across that way I mean you’re staking out a position
here by talking about democratic option putting this against a
elected or excuse me against appointed officials
I was in our own country in your country my country we have the Supreme Court that are
appointed officials and they’re not popularly elected I
don’t think that’s a practical thing or desirable thing happen elected but if we’re gonna push the Democratic
option for other what would you say something like that I
would say you should keep your Supreme Court in close check by requiring them to be able like
lawyers and to interpret on a static basis the laws that have been democratically
adopted I there’s no problem with that so long
as what the court is doing is giving a fair honest interpretation
to what the people have adopted either what they adopted in their laws or what they adopted in
their constitution you get into trouble only when you allow
your core to remake the constitution in light of current conditions you know
what oh yes this the death penalty used to be
constitutional but has three my my former colleagues have said 2011
current colleague into former ones have said it’s no longer constitutional that’s
when you get into trouble that’s when you have a a judicial branch
let you see is not serving democracy but but but
supplanting it so I’m I just don’t think that’s that’s that’s
equivalent and and my my impression is that they had the they
had full-blown all the people in Massachusetts had for
long trials don’t only those those which is worried
weren’t given a full trial they were a little what changed was not was we we was not
the sudden existence and judges would change was the the disappearances well what it what it
kissinger call it the you know Marol it was a great great phrase how could I have forgotten
the dictatorship of the virtuous here yessir we in the back and had nothing but I one side on you said term America does not demand of
other states to that American Raza views of by Lawal but on the other hand American
cost $10 to composed American law on other states
for example if you fly over illegal in all courts would say you were doing business in Illinois
that’s where you have to be applied legal it all for summer there’s a
defensive american votes them business law to sports level of other nations what is this
whole would you describe this phenomenon is still critical love this little while
and I if you’re fine don’t fly over lovely a hey if you know what was going on in the
obliging probably reasonable amazing a I mean you have grounds to complain if
if Illinois law having no connection whatever with a with Germany is applying a Illinois to
do a transaction between do two Germans here in Berlin but if it’s a if it’s an action that
either takes place in Illinois or affects Illinois if it’s a you know we’re a conspiracy to
restrain trade which specifically restrains trade in Illinois
I think Illinois is a proper jurisdiction but I I realize that there that there there
there is and and I don’t entirely agree with the the
extent to which we’ve we’ve expanded especially our antitrust
laws mother to to foreign activities I defended by the way when I with that yeah when when when when I was a a scholar at the University Chicago the International Association of Machinists it was during the depths of the oil
embargo and the i am. brought a lawsuit against
gopac claim that OPEC was a contract
combination or conspiracy in restraint of trade and therefore opec was in violation of
the Sherman Act we hitch RRR are craven state department where we’re
will a would where would not even come in as an
Amiga stirred it sell the court for god sake don’t don’t hold it that olive opec is so I I appeared the arguing the case on behalf of opec
didn’t appear they they they play a think that sovereign immunity they had
no could be held into an American Court so I i represented the Indonesian United
States Chamber of Commerce who were who took part on behalf of for argue the case on the Evo back and
I’m happy to say that Mopac was not held to be in violation of
the Sherman a would real disaster much time go ahead okay my name’s cuts and chief compliance officer large
chemical company them a just hysteria to get from your
speech that you agree that international
agreement up agreement %uh be followed as long as a
as collected doctor so say rhonda but nevertheless if you look at it The
Hague Conventions especially on discovery and no also on serving process you feel it that but this time in america is quite
the opposite then just follow these conventions and it would let other like to have your
opinion on that I i do I do not I’m sorry I do not even know what you what you’re referring to it soon an area
I’ve never had any exposure to but I certainly agree with you that we
should follow the the treaties that we have subscribed perhaps that’s then Christian retreat
tradition between us not not booked because a inside it’s very good but i i don’t
like dealing with in public but not if I don’t know anything about it time yes movies but is the I’m a collared dove against Notre but the price for international but for state law in
specially for indestructible a as my specialty
11:07 a it’s really hot here whenever i text
book is a very much less that glow yes no you describe the the your be call in the looks book well in a very new wave that room soon some World Trade Center in the in brasses and some of my colleagues the
North they argued today but some of my
colleagues in European all if they hold true that the the you cool will do his that made that you did described but do group mutual remember
the the Subaru the constitution called in consular German he decided to eat in the must Tristen them the case and all once
more in the this uplink treaty case they said Noel the European gold is not the promoter the promoter all that success
and the the the going on the in Europe and the
last load will be well the done in cuts would and I think good its me the numb the picture then then that the that you did described well I’m yeah I’m happy to
hear I know that both those cases are are controversial I think I would have could moon I would
have come out and say the same way the a if you for example the United States subscribe to the he
International Court of Criminal Justice and the United States serviceman or for
that matter are former Secretary of State were hauled before that core and and given a criminal penalty without him the
benefit of trial by jury I would say this is not
what our Constitution permits the United States to subject its
citizens to and I assume that that is a similar to
what to what the German Court has held up well if that’s the case can do for you
don’t have to all anem the determinations over the meh love the court in Luxembourg which
you don’t like that’s wonderful with yeah its it’s not my impression I 1 yes then you too many European Union lawyer
from both University as a brief and maybe
provocative follow-up comment on europe on your
comment on the UN Security Council if we apply the concepts you have
presented to us tonight should the situation of Germany
are Afghan style I assume that you would recommend the
German other Afghan government you withdraw from the united nations
because the UN Security Council currently holds the power to british
Prime legal obligations on jerky or Afghanistan without Germany
or of constant I’m holding to power thank you my I’m not sure what
should what you’re referring to but if in fact the UN has that power they’ve
they’ve been given that power by treaty I have criticized the treaty I am NOT
urge that what treaty obligations have been incurred should be disregarded I just criticize the encoding of them okay I mean if if if what you say is
true yes away the treaty but don’t really
like that next time a I’m my yes flash I would be very curious to here’s you view on and what you think about them providing
people live in Afghanistan or Iraq was a basic
set of human rights who were deprive those one of the russians President Bush gave
for invading Iraq loss to talk to one of the most brutal
dictators in history so what’s your comment that
him to I don’t mess with the with foreign
policy and one I leave the congress lonely leave me
alone gun I don’t want to express any no yes I’m I provocative but not foolish a one style a us 101 West uses what criticize the dictatorship of
the bus is that we have a statistician in Europe from the house where the the the moral certainty thats institutions like the European rights people justice a lyman taking decisions long points issues one thing that I don’t really
understand this in why should and why shouldn’t a democratic society be in
a position to choose democratically just saw its to alligator those powers at least forty fall while the
that she’s such an institution whether you take your moral certainty
need in terms of democracy from I mean it
seems to me that you put democracy had of basically
everything else and I don’t really see the philosophy
called foundation for that if you tell us
that’s a.m. lots of nations that have different
views on human rights i am certain there are
lots of nations that have different views on democracy I don’t really think a at least I don’t see the hierarchy
between the democracy on the one hand in your
rights or the other do I have assumed assumed believe in
democracy and of course if you don’t if you don’t
care about democracy yeah a like I have to fall silent but I don’t consider it a democracy is
you evidently do if the people vol.1 to have a key for
life and is at a democracy course not and
it’s like why is not a democracy if they if they voluntarily ok to give all powers to accord it’s no
longer a democracy knows Jefferson but it is really it is
not an can elect to despotism that good we’ve
tried to create an America him I don’t know that it’s almost impossible we changed it quite recently as a matter
fact it’s hard it’s harder than it ought to be no idea prolly hey I will put the responses I’ll our
political system love against the responsiveness %uh any other political system in the
world one thing the America cannot be criticised for is the up the in a the in a in a incapacity up its governing classes to
be affected by public opinion it is yeah they are affected immediately
and profoundly by pop up Dec yes yes yes sir I forgot it was me calling me but
I’m because the MLS I think in a certain way
your presentation the European Court of Human Rights re-live like John Calhoun describing United States Supreme Court
so in a certain I was wondering if you’re not missing the whole process of
European integration in comparison with what went to work to to place an American nineteenth century
but in a certain way the 14th amendment the Andrews prunes
over Federer the fighters was please join us in all this stuff loss and is
that lost something like integrations loopholes and laws that
apply when there was literally in national put the process process that is not in
the UK and at the moment European integration because if you describe to you being the
best you can only describe because you have to mansion at least the European Parliament
on all these institutions yet to see that there is a judicious handle it to the present
European integration so if you take the United States a 1867
for itself but I am wondering about the democratic mandate of the united states
and him but when you come from mississippi you know
and then when the sewer problem again and again we must see their sister respective to using digression as
there’s it was there that was intended to the
nation in the United States well you’re coming to the assistance %uh the South you you’ll undoubtedly true that the
post-civil war amendments were shoved down the throats well the southern states in that they’d
never the freely voted for the 13th 14th or 15th
amendment but they lost the war a it’s much better to lose a war a you
human have to do things that you maybe don’t
like to do but apart from that unfortunate episode at the Civil War a you do to to say that our federal system
is undemocratic I mean Mon like the European Union which
a which proposed a a constitution fat
enough to choke a horse and it was himself bid submitting to the
people to vote yes 10 lmao claim I mean we submitted our
beloved rights one by one and not all the more accepted one playing when we did that and the
European Union’s you promulgated this thing with the
withhold tation from from demoss millions I’m in Greek think also democracy because with us
vote people rule your people vocation 01 a I’m No the I’m yes 1 I think about her Stanford item on its
side on justice scalia told us that a.m. as a legal scholar as a legal
philosopher god save us net the idea of natural law and natural
rights now in the tradition of natural no way I
did not say is a legal scholar II I don’t do natural law that’s not my
occupation I’m I as a philosopher I believe has a
Tulsa and in the tradition of the philosophy of of
natural long there is a very strong idea
especially among Catholic term philosophers of
natural law that’s earn the the history of humankind
should point towards the idea of the Unity a awesome of the of the world and one one legal orders for the whole world and
that the Pope himself came out in favor of this idea of the
world’s data only recently in his in his last in cyclic a and up I wondered if as a philosopher you think
that the there isn’t a sense of plan for
natural law maybe it’s even its underrated among
among legal philosophers today whether looking at globalization you as a philosopher in favor of natural
or shouldn’t have so those open the window from all Tim a little bit more optimistic you
guess all a if courts although the the globe think
about questions like them sexuality and the death penalty why
shouldn’t the provincialism of Massachusetts all European calls which came out in
Sayville of a homosexual marriage then be
submerged dinner emerging global consensus is in which the the National reasons the
natural law which I suppose you must must also think exist come through weird weird where to
begin a to yes it will begin with no I go I thought that that then that it was we
it was a Catholic doctrine that developed the
concept of subsidy Aditi which is trumpeted now in the European
Union that’s a Catholic concept thing should
be decided at the local level to the extent
possible that’s that’s the first point about about
Catholic doctrine the second point is the Catholic Church is not not been a
very good political institution over the centuries I i do not I do not follow the church from my
political advice okay up now you use a mall why shouldn’t we follow you know the the unanimity of the world
judges in the world you don’t knowingly why only or judges experts on these questions went to the
little urn at Harvard Law School that gives me any
more insight into whether they’re ought to be a right
to assisted suicide or whether they are ought to be a right
to homosexual sodomy or whether there ought to be a right to
abortion anymore inside the joe six-pack white one widened why do we think we
give these questions to judges it absolutely be funny to me there judges have no special qualification for this they get it only
because they are operating under very vague generalized treaties a.m. I
guess they could say they’re forced into it but there no experts on that on that
subject now what I believe a natural law but I
believe that in in democratic political institutions it’s up to the people to decide what they think natural law demands so you have political campaigns in which
people say women have a natural right to abortion line say that in a political campaign
and then put it to a vote because we all disagree on natural law
why say whatever a budget judges think he is the answer
that’s makes no sense in a democracy there are
no clear judicial answers to these
questions and since there aren’t it seems to me it’s the kind of thing that
in a democracy we debate with one another and we ask
the people what do you think the natural law requires that is how I think natural law comes
into play Indian in the political realm wrote to
come into play in the political realm yes George happen to love you thank you so much for coming to talk to us an arm
I don’t know whether answering this comes under provocateur foolish but I’m gonna ask question anyway um
about the most consequential decision about the supreme with my adult
life which was Bush V Gore and wrong a well I have to ask you on and I’m the rights and wrongs that
are not I what I want to ask you about I’m in
fact I want to ask you a political question but thats fitting because it really had almost no
legal consequences and that was the wishes that the majority opinion it had
enormous political consequences and ask you not as a supreme court justice but
as a tell us it is and do you think bad
decision made american cynical about their
democratic institutions we’ve been talking tonight
about democratic consent in democratic consensus and then and early European
you wrote about democratic stability and I’m one hand and that depends partly on
respect for institution so in your travels do you think we should be good for made america is in
the deeper center not just democrats more cynical in seeing the more the five
conservative justices loading in favor the republican and
therefore more liberal justices voting in favor
the Democrats wrong to begin with on the principal issue in
the case the vote was not even close he wasn’t 524 the vote was 722 on as protection as to whether the Florida
Supreme Court had acted unconstitutionally that was the principal issue in the case
it was fine it was 722 it was 524 on the subsidiary question
whether we should give the Florida Supreme Court another two
weeks to try to patch this up and we disagree
on whether it was patch a hole in a couple of weeks and whether it was desirable to leave
the united states in the situation of not being able to transition from one from one administration to the
next because we didn’t know the next administration was going to be an eight-mile the whole world is
laughing at us that’s what I don’t have a democracy not
on a musician but about the effect do you think it
made Americans more sentiment do you think americans would have been less
cynical if the outcome of the election was
decided by the Florida Supreme Court reinstated the United States Supreme
Court in anyone with that made you happy here I
get my made them less cynical yea in a few more weeks it done by and
there had been a recount which is a democratic thing
after all high my impression on the time is that
americans accept passionate partisan democrats heaved a huge sigh of relief that this whole episode was finally over thank God let’s get on with government a
high I don’t think I don’t think that the court in the long
run suffered from it and bear in mind that you know we didn’t
go looking for trouble it was al gore that brought this matter into the courts when when richard nixon thought he had
done he the election had been stolen from him
in Chicago like you know Mayor Daley for for jack
kennedy which it probably had been them he’d bring it into the courts he said
know it in the election should be decided in the
courts but al gore didn’t feel that way if he brought it into the courts and
somebody he after the decision in the florida court
said wait a minute this decisions on Constitution what what would you want us to do say the case is an important enough to
take %um I don’t know what else we could possibly
have done and and as I say on the major legal issue wasn’t even close whether the
Constitution by Elise yes you to Wilson’s was listen but but my major response to a bush any bush versus core
question is get over it good yeah with my that meeting not law old I’m that regard marla you all Americans cool or bodie long line but it didn’t not only major substantive
issue case only in the only in the insignificant issue in my mind about
whether we should act now or trip along for another couple weeks
and she most people like you don’t even
recognized that the main issue love the case was not close seven tonight your one should’ve said a was just cleared a much more pedestrian
issue to play because pretty pedestrian big
one to go back to your initial presentation
there is an institution to which many in the room our hearts
quick we always decision it was created tree
is the TT 0 and many of us look so that a
result fortunes news that was the halls elisa’s so it
really well as this that subscribe to it was just interested in
your views on that institution which does have a body that the two
sides many of us world spews don’t know enough about it don’t
know them just as to what standards for deciding
are the standards are quite works quite specific and it’s simply an
adjudicatory body applying quite specific standards agreed
to buy by countryside I have no problem with
that my impression is that it is that inquires into the facts whether the
facts in a particular you spew violator with the pool with the parties
agreed to I have no problem with that is releasing ruling seemed to make no
unhappy its weapons ruling seem to make know
what happens to the media less unfortunate timing should be perfect
that’s that’s being a good judge I’m splitting the baby I am well I think we’ve exhausted the
questions if not the audience a its

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  1. What a fun to listen to that Guenter Bannas of the German newspaper FAZ and to see him and the laughing of the others. tHere is one similar scene in the Falsche Bewegung of Volker Dchloendorff. Great!!!!!!

  2. Abgefahrene FAZ zeigt ihr wahres Gesicht. Politische Frage, warum? Philosophisch wissenschaftlich!! Welche deutsche Dummarroganz und Rainald Goertz findet den toll. WRONG!!

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