What is Law?

Was Osama Bin Laden’s Assassination Lawful?

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?

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 LawPrimary 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 LawReligious 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 LawSpecific 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 LawPrimary attribute is that it is clearly STATED

and thus created by the sovereignApplies only within single stateMay be foundational (Constitution) or ordinary (regular statutes or regulations)Governed by legislative intentSovereign 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 ruleWoman wanted to get rid of husband,

makes false accusationHusband 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,” 159

5 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 Criminals4 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?