Justice Breyer on Trying Guantanamo Detainees
The German Marshall Fund - Halifax International Security Forum
Few more fundamental philosophical questions exist in international affairs than that of the relationship between power and law. One narrative (classically formulated in Thucydides’ Melian Dialogue) holds that these concepts are antagonistic.Power, it argues, is an interest and a purpose unto itself. It is unilateralist in nature, expresses itself through force, makes its own rules, and is in fact its own norm. Law, by contrast, has no autonomous normative quality in this account. It is a tool that the weak use in order to leverage their influence, to restrain the strong, and to harness and contain power and the use of force.Another school of thought (its canonical text is Kant’s Perpetual Peace) sees law as a civilizing counterforce to power. It seeks to replace or even to ban the use of force in the settlement of disputes, and uses diplomacy and compromise to produce a state of mutuality and reciprocity in international affairs. Its most notable institutional expression was the creation of the United Nations in 1945.This essential tension between power and law has informed many of the great international debates of the past century, from the outlawing of genocide to the creation of international war crimes tribunals to the debate about a “responsibility to protect.”