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Totalitarian Democracy and the Future of the International Order

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Totalitarian Democracy and the Future of the International Order University of St. Thomas Journal of Law and Public Policy Volume 9 Issue 1 Fall 2014 Article 2 January 2014 Totalitarian Democracy and the Future of the International Order Robert J. Araujo S.J. Loyola University Chicago Follow this and additional works at: https://ir.stthomas.edu/ustjlpp Part of the International Law Commons Recommended Citation Robert J. Araujo S.J., Totalitarian Democracy and the Future of the International Order, 9 U. ST. THOMAS J.L. & PUB. POL'Y 35 (2014). Available at: https://ir.stthomas.edu/ustjlpp/vol9/iss1/2 This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Journal of Law and Public Policy. For more information, please contact the Editor-in-Chief at [email protected]. TOTALITARIAN DEMOCRACY AND THE FUTURE OF THE INTERNATIONAL ORDER ROBERT J. ARAUJO, S.J. JOHN COURTNEY MURRAY, S.J. UNIVERSITY PROFESSOR, EMERITUS LOYOLA UNIVERSITY CHICAGO I. INTRODUCTION Sovereignty has been and remains a vital issue in the realm of the international order and the law of nations, as well as in national and domestic law. In the context of republican democracy such as exists in the United States, citizens often take pride in the recitation that sovereignty resides with them and is inextricably tied to democratic institutions and the preservation of the rights of persons. In the international sphere, as Michael Ignatieff notes, under the Charter of the United Nations and the Universal Declaration of Human Rights (hereinafter the "UDHR"), "state sovereignty remains the main pillar of the international system. It also remains the case that human rights are best protected not by international treaty but by the constitutions of democratic states."2 In essence, for Ignatieff, the universal, fundamental rights of the human person are best realized and protected by the sovereignty of the people. Sovereignty is typically understood as the ability of the state (be it national, regional, or local) to exercise its legal authority to govern particular matters by making, enforcing, and adjudicating laws that are designed to protect the interests of the society served by the state. Emphasis must be placed on the concept of legal authority because it is the agreed upon understanding of juridical principles which validate the exercise of authority by anyone or anything. Yet, as already suggested, sovereignty also exists in the hands of a people who form a nation and exercise their self-determination. In the context of popular sovereignty, it is typically exercised in a form of democratic and representative government such as that of the United States. In recent times, popular sovereignty has been assumed to be a desirable 1. The author extends his gratitude to Professor Mark DeForrest for his insightful comments submitted to the author on an earlier draft of this article. 2. Michael Ignatieff, Human Rights: The Midlife Crisis, N.Y. REV. OF BOOKS, May, 1999, at 62. 35 36 UNIV. OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY [Vol. IX form of governance which echoes Abraham Lincoln's exhortation of "government of the people, by the people, for the people." In discussing a nation "conceived in liberty" and dedicated to the proposition "that 'all men are created equal,"' Lincoln noted that this nation-"so conceived"-could endure a great internal conflict such as the Civil War, but the endurance of the nation would necessarily be the demanding work of the people in the exercise of their sovereignty. In making this assertion, he reminded his fellow countrymen of the "great task remaining before us," the task whose execution is vital to the survival of a nation that is premised on self- governance. Self-governance, i.e., democracy, can be easily assumed to be the most desirable form of government. Nonetheless, it is only a means rather than an end, for the value of self-governance is dependent on the values it holds and promotes.' Hence, authentic democracy and the proper exercise of self- determination, that is its essential complement, are the hard work of all its members, not just some.' As will be seen in my subsequent critique of totalitarian democracy, democracy can be corrupted from within, and degenerate into a form of governance in which the regulation of its peoples is subject to the interests of the powerful and influential who are not restrained in imposing their self-referential will on the populace.6 While the first form of sovereignty mentioned focuses on the state and the second on the human person as citizen, an important and inextricable link exists between the two: it is the idea that the exercise of sovereignty inevitably involves both a clear concept of the law and the rule of law that address what the law is about and what it should do. One form of desirable authority takes place in the merger of state and human sovereignty. Although Pope John Paul II pointed out after the fall of Communism in 1990 that democracy is a desirable form of self-governance, it can nonetheless contradict its own principles and must then be viewed with suspicion.' Thus, while democracy can be a laudable system of governance, John Paul contended that it must remain a means to a proper end and never 3. Abraham Lincoln, Gettysburg Address, ABRAHAM LINCOLN ONLINE, available at http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm (offering the texts of the five known copies of the address). 4. JOHN PAUL II, Evangelium Vitae [ENCYCLICAL LETTER ON THE VALUE AND INVIOLABILITY OF HUMAN LIFE], No. 70 (1995), available at http://www.vatican.va/holy father/john paul-ii/encyclicals/documents/hfjp- ii enc_25031995_evangelium-vitae en.html [hereinafter Evangelium Vitae]. 5. I have developed related points in more depth in two of my John Courtney Murray, S.J. annual lectures at Loyola University Chicago. The first is Robert John Araujo, S.J.John Courtney Murray, S.J.: A Model of Engagement, 43 LOY. U. CHI. L. J. i (2011); the second is, Robert John Araujo, S.J.,The Nature of the Law and the Role of Citizenship, 45 Loy. U. CHI. L. J. 287 (2013). 6. Evangelium Vitae, supra note 3 at No. 70. 7. Id. at No. 20. No. 1] TotalitarianDemocracy and the Future of the Int'l Order 37 become an end unto itself; its value as a moral force is not automatic merely by claiming the name "democracy." If democracy's merit is indissolubly tied to the values it embraces, those values must remain in the best interest of the res publica and the common good.9 When this form of community self-governance contradicts essential normative values regarding the individual human person and all societies of human persons-including their dignity and right to life-it can evolve into a thinly disguised totalitarianism.10 Thus, it should now be evident that endorsement of democracy must be prudently made. While any claim of sovereignty ought not insulate any state or group from their fundamental legal responsibilities established by the rule of law," any independent state, especially those which claim to be democratic, requires a solid foundation of proper sovereignty in order to assert and exercise its rights and duties. How are these distinctions between desirable and improper exercises of sovereignty to be made? I suggest that the natural law, which is the foundation of international law, is the basis for distinguishing between appropriate and problematic sovereignty-whether the sovereignty under investigation be that of the state or of self- determination. Hence, this investigation of what constitutes appropriate sovereignty in democratic societies begins by considering the topic of natural law and its bearing in domestic and international contexts. Second, this inquiry will consider the role of the natural law and why it is particularly relevant to international society in the age of international organization. Third, this examination will explain the concept of totalitarian democracy (a kind of wolf-in-sheep's disguise) and why it constitutes a betrayal of good/desirable sovereignty, which is founded on the natural law. Lastly, this presentation will offer illustrations of desirable sovereignty and improper sovereignty in an institution that has been entrusted with safeguarding the international common good: the United Nations. 8. Id. at No. 70. 9. By the common good, I mean the good being the flourishing of each person in relation to the flourishing of all other persons in a realm of peace, harmony, and good will. 10. Evangelium Vitae, supra note 3 at No. 20. See also, JOHN PAUL II, Centesimus Annus[ENCYCLICAL LETTER ADDRESSED BY THE SUPREME PONTIFF JOHN PAUL II TO HIS VENERABLE BROTHERS IN THE EPISCOPATE, THE PRIESTS AND DEACONS, FAMILIES OF MEN AND WOMEN RELIGIOUS, ALL THE CHRISTIAN FAITHFUL AND TO ALL MEN AND WOMEN OF GOOD WILL ON THE HUNDREDTH ANNIVERSARY OF RERUM NOVARUM], No. 46 (1991), available at http://www.vatican.va/holy father/john paul-ii/encyclicals/documents/hf-jp- ii enc 01051991 centesimus-annus en.html, "[a]s history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism." 11. See, e.g., Louis Henkin, That "S" Word: Sovereignty and Globalization, and Human Rights, Et Cetera, 68 FORDHAM L. REV. 1 (1999). 38 UNIV. OF ST. THOMAS JOURNAL OF LAW & PUBLIC POLICY [Vol. IX II. THE NATURAL LAW AND SOVEREIGNTY IN BOTH DOMESTIC AND INTERNATIONAL SOCIETIES The theme of the natural law has intersected the law and the law's application for centuries in diverse legal cultures from early to present times. It is traceable back to the ancient western civilizations and runs through the thinking of Plato, Aristotle, the Stoics, and Cicero; as well as Christian thinkers, such as Augustine of Hippo and Thomas Aquinas.12 In Renaissance times, one must not forget that natural law was the foundation of the works of Francis de Vitoria and Francis Suhrez who provided the foundation of modern public international law developed by Hugo Grotius.1 3 In the American context, the natural law intersects the mind and writings of Thomas Jefferson-who drafted the Declaration of Independence- and the Founding Fathers, who wrote the Constitution of the United States.
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