Hadley Arkes on Ronald Reagan's approach to international law, pointing to an an interview in which the president was asked how, as an officer under the law, he could support the Contras in Nicaragua when they were seeking to overthrow the purportedly legitimate government of that country:
The president responded that it was indeed true that the Contras were seeking to take power at the point of a gun, in resisting the oppressive regime of the Sandanistas. But the Sandanistas, he observed, held power at the point of a gun. And so, as he mulled aloud to the reporter, he did not quite see the moral difference between the Contras and what the reporter was pleased to call "the legitimate government of Nicaragua."
Now the Gipper could not fill in the bibliography. He probably could not have explained that his reflections here had led him back to the difference between an international law that was "positivist" in character and an understanding of international law influenced more fully by the axioms of natural law. When the positivist asked the question, "Who formed the legitimate government of Nicaragua?," the answer came back without any moral ingredients: The legitimate government was the government that had effective control of the territory. That was not necessarily a government that enjoyed the consent of the governed. It could be a Hitlerite regime, but if it were in firm control of the territory, it counted, in the positivist reckoning, as the legitimate government.
But to insist on a moral test ? that a government had to meet certain moral qualifications before it could be recognized or approved as a decent and legitimate government ? was to back into the principles of an older version of international law. It was the brand of international law that was understood more readily before the middle of the 19th century, when the doctrines of legal positivism came to secure a firmer hold on the legal profession and the teaching of law.
Even Reagan, with his surprisingly wide reach of reading, probably could not readily bring out, in his support, the writings of Grotius or Pufendorf. But again, the striking thing about him was that, on his own, with his own pondering about the moral questions in politics and law, he often moved along paths of reflection that had been trod before him by writers more accomplished and celebrated in political philosophy.
What's interesting about this in light of the discussion in the comments section to an earlier p ost is that Reagan rejected the law of the jungle approach to international law being espoused by so many of the commenters. Instead, Reagan recognized constraints that arose out of law rather than just the point of a gun even on the world stage.
