Do we need new laws or adherence to the old ones?
The United States has an ancient Constitution. It doesn't ban slavery as punishment. It doesn't ban bribery as campaign funding. It doesn't protect the natural world. It doesn't guarantee basic human rights to food, shelter, education, healthcare. Its system of "representative" government doesn't fairly represent. New laws are needed.
On the other hand, the United States has numerous laws on the books that just aren't enforced. Antitrust laws are treated more as suggestions. Laws against torture are routinely erased from memory by re-banning torture again and again. Perjury by someone powerful is a crime if sex-related. (Clinton.) Otherwise it's a factoid for use in arguments over any allegation that is sex-related. (Kavanaugh.) Often crimes by the powerful are occasions for "investigations" rather than prosecutions -- so that crimes that only the powerful can commit cease to be crimes and become topics for "investigations." (Destroying Yemen.)
There are borderline cases. Written law, as visible to the human eye, doesn't give corporations human rights. Mostly it's been reimagined bizarrely to do so. But creating new laws that deny corporations human rights would be a very welcome addition.
There are thousands of mixed cases. For example, one would like to see existing tax laws applied to the wealthy, and minimum wage laws adhered to by employers, but a maximum wage law would be a great new addition.
When it comes to war and law -- the subject of a conference this week in Toronto and online -- I think we understandably incline toward the idea of new laws: disarmament treaties, world parliaments. But I think we should start from an understanding of what the world would look like if existing laws were complied with. One reason is that we need to know what sorts of laws are most easily and least easily violated. Another reason is that compelling compliance with existing laws and/or creating new laws that build on existing laws may prove far easier than creating new legal standards from scratch.
The obvious example is this: If we try to imagine the big war-making nations of the world creating a new treaty to ban all war, the task seems enormous. If we try to imagine legislative and other ways of compelling awareness of and compliance with the Kellogg-Briand Pact, the task seems noticeably less enormous.
Creating a new treaty banning war would be extremely difficult to get any war-loving governments to join. I'm in favor of it, just as I'm in favor of an immediate ban on oil, meat, and reality television. But is it the place to start?
Building on the existing treaty offers other possibilities. We could produce educational materials. We could lobby a non-party nation to join. We could create model domestic legislation penalizing individual violators. We could work to democratize the ICJ and ICC, to create prosecutions, and truth and reconciliation proceedings. We could work -- again involving democratization of the U.N. -- to impose sanctions on government violators. We could treat both the Hague Convention of 1907 detailing procedures for nonviolent dispute resolution and the Kellogg-Briand Pact requiring nonviolent dispute resolution as (what they are) existing law, and -- in combination -- requiring the procedures outlined.
There are three main reasons for ignoring the Kellogg-Briand Pact.
1. "I've never heard of it."
That one is remedied through education.
2. "There's still war, so it didn't work."
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