Legally and Otherwise

David Aaronovitch wrote a splendid piece in yesterday's Observer subtitled We should not ask whether the Iraq invasion was 'legal' - we should ask whether it was 'good'. He goes on to say

we may become reliant on legal processes to settle for us the question of what is right and what is wrong when, in reality, morality can neither begin nor end with the law.

Just as we talk more than we used to about law at home, so we also increasingly discuss international law. Thus it was with some fanfare that, also last week, Penguin published an important book by Professor Philippe Sands, a brilliant international lawyer. In Lawless World, Sands's central proposition is that the war on terror and the war on Iraq, as prosecuted by America and supported by Britain, pose a unique threat to a valuable system of international justice.

There is much that I can agree with in the book. In particular, I accept that the arbitrary procedures for dealing with 'terror' suspects at Guantanamo and Bagram have been a disaster, enhancing the likelihood of abuse, violating basic principles, discrediting those who laid most claim to be upholding human rights and strengthening opposition.

And yet I have some problems with other aspects of his approach. One is that, at important moments in his arguments about the law, I find that I have ceased to care as much as he wants me to about whether this or that action is, strictly speaking, legal. Instead, I find myself more concerned about whether the action is right. I'm not alone; many of those who routinely use the word 'illegal' about the war don't do so because of a detailed appreciation of Sands's judgment on UN Resolution 1,441 versus that of, say, Professor Greenwood of the LSE, but merely as meaning 'very bad'.

Aaronovitch ends by arguing

if the law prevents good actions and objectively protects bad ones, it needs to be changed. Any non-lawyer could tell you that.

If rules (laws) are set up and experience shows those rules (laws) not to be working do you follow those rules (laws) or do you do things that do work? Or do you make new rules (laws)? I'm on the side of those who do things that work and then make new rules. Which side are you on?

(Also see Norm).