Opus 2011-160, Headlines: Libya and Common Law

We are all following the events in Lybia.  Opinions are all over the place.  I have a lot of mixed feelings about what I read but there is one point of extreme danger that I think is being ignored, Common Law is based on precedence.

Many non-lawyer citizens think that laws are passed and then enforced as written.  Nothing could be further from the truth.  If you lived in countries that had statutory law that might be the case but the tradition that came from England and was adopted in the United States is called common law.

Common law indicated that the actual law is what the judges say it is, based on a review of previous decisions.  That is why when the Supreme Court reaches a decision they spend a lot of time writing the decision.  They explain their reasoning and what previous cases they are stressing.  Both the majority and the minority offer a report.  When lawyers look for something to bring to a case they review the decisions and the reasoning.  All decisions are based on what previous decisions have been made.  The current law is understood in terms of the past.

Now we have a problem.  In the “war” in Libya we have made decisions based on the reasoning of NATO and not our legislature.  We can see the same when we look at the two wars in Iraq.  For those we stress the U.N. resolutions that give us the authority.  In all three situations we have accepted the opinion of international tribunals to intervene in the affairs of sovereign countries. 

How is this a problem?  By doing this we are giving our consent to the idea that international organizations have authority over single nations.  Right now we are powerful but what happens when say, China, decides that they have the right to tell us what to do?  We have established the precedent that a decision by the U.N. would give a coalition of nations the legal right to invade our country. 

This is going to come back to bite us in a big way.

Am I totally out to lunch here?

homo unius libri