The jealous gods of international law

Can your decorating habits earn you infamy? That is what seems to have happened to Justice Roy Moore, who sits, or rather sat, on the Alabama Supreme Court in Montgomery.

In 2000 Mr Moore ran for chief justice - note that this is an elective office - with an unusual promise. He would display an image of the Ten Commandments in the courthouse. Upon winning, Justice Moore honoured his pledge with a granite monument inscribed with not only the Commandments but also quotes from America's Founders and a few lines about natural law from William Blackstone. A federal judge held that Justice Moore was violating the American separation of church and state. Now he will face scrutiny from Alabama's Court of Judiciary.

To read the papers, you would think this is the least Justice Moore deserves. Some accuse him of seeking to drag Alabama back into its pre-civil rights days, when idiosyncratic, bigoted state judges could do what they pleased, including enforce state racism. Others suggest that the justice is abusing his position to get publicity and win higher office - the logic here being that a feral Christian right will support him. All remark on his arrogance.

The critics, however, may have the story backward. For it is possible to argue that Justice Moore's 5,200 pound tablet is actually a monument to humility in that it recognises the limits of judges' power generally. The monument first of all reminds us that some decisions are properly made not by judges but by voters, such as those who elected Justice Moore. It also recalls that precedent - the precedent of several millenia of classical and Judeo-Christian tradition in the law - may be more important than individual judges' legal interpretations. Finally, it is a reminder that a higher moral law may inform and enrich judges' decisions.

It is hard to know why these possibilities elude the chattering class. But in a lecture today in Washington, a judge who was once as controversial as Justice Moore, Robert Bork, will offer an explanation.* The US, Judge Bork says, has moved away from the old and local "rule of law" system. Instead the nation is subject to the rule of judges - a tyrannical rule that erodes the power of competitors, including a sceptical press, the organised church or the democratic state itself. These powerful modern judges were schooled in the same places and hold close to identical views. They are rights specialists who prefer shaping the law to following it.

Judge Bork's last point is that the new rule of judges is international. "Judicial imperialists" made a crucial start at the Nuremberg Trials of Nazi leaders. The trials established a bad habit of confusing moral justification (Goering deserved what he got) with legal justification for retroactive lawmaking. It would have been better simply to execute the big Nazis, as Britain proposed at the time. Nuremberg established the idea that legal busy bodies can run the world according to their own notion of virtue, and it was only a few short steps to the World Court and the International Criminal Court.

This argument is so sweeping as to sound paranoid - but paranoids are not always wrong. In the US the secular religion that makes the Constitution its bible has indeed tended to crowd out traditional religion. Judges have become like priests, glorifying the freedom of non-religious expression even as they restrict genuinely religious speech and suppress religious references. Today, mayors are helpless to protect citizens when pornographers open shops on their high streets - the pornographer's rights trump those of the voters. A pupil, Judge Bork notes, would have "no constitutional case" to stop a guest speaker in a high school auditorium from reading aloud from Mein Kampf. But she can stop a priest from reading "a short, bland, non-sectarian prayer". The justification for this inconsistency lies not so much in the First Amendment, which respects both free speech and religion, but in its interpretation by reformers educated in the 1960s or later.

Rights-oriented internationalism spread early on to Europe. As legal experts David Rivkin and Lee Casey have pointed out, we are moving inexorably toward a system that would "permit the courts of any state to prosecute and punish the leadership of any other state for violations of international humanitarian norms." Hence the effort to extradite Chile's Augusto Pinochet to Spain, and a Yugoslav court's 20-year sentence on Bill Clinton for bombing Serbia.

The US, that trend-starter, is now having second thoughts. But where does all this leave Justice Moore and his tablet? The justice certainly fits the Bork thesis. The more the "new class" and its press allies hack at him, the more Alabamians rally round. Last week, Judge Bork told me that Justice Moore is "wrong about the Supreme Court", but "he's right about the Constitution". In other words, in recent decades the Supreme Court has sided so often against religious displays that Justice Moore has no (legal) case. As for Judge Bork's own case, you don't have to buy every bit of it to appreciate that we've come a long way - further than even the early internationalists intended. After all, the decorations on the Supreme Court Building in Washington make reference to Moses. And in the Nuremberg courtroom itself, the attorneys who worked there noted, a large plaque of the Ten Commandments hung over the door.

* Coercing Virtue: The Worldwide Rule of Judges, American Enterprise Institute, 2003

© Copyright 2003 Financial Times

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