Self-help and the separation of powers.

• Author: Pozen, David E.
• Position: III. The Unity of Self-Help: Second-Party Enforcement in Law and Theory through Conclusion, with footnotes and tables, p. 48-90

3. THE UNITY OF SELF-HELP: SECOND-PARTY ENFORCEMENT IN LAW AND THEORY

   "In many social contexts, self-help, when rendered promptly and in proper amounts, is one of the most indispensable and effective methods of social control."

   --Robert C. Ellickson (212)

   "Self-help may well be the first step toward anarchy."

   --Idaho Supreme Court Justice Stephen Bistline (213)

   We have seen that in the separation-of-powers field, self-help plays a vital, inescapable, and at times deeply troubling role. The same could be said of many fields of law: the basic dilemma posed by self-help is widespread, if not universal. Institutional and doctrinal designers have struggled for centuries to harness the benefits of second-party enforcement while keeping anarchy and abuse at bay, to mediate "the longstanding tension between the imperatives of an established system of laws and the individual needs and desires to avoid and remedy injury as effectively and efficiently as possible." (214)

   This Part considers solutions that have emerged from this struggle. The goal is not to provide a satisfying account of all self-help law, but rather, and more modestly, to identify some common strategies and generalizable insights that might shed light on the interbranch context. I will focus on the international law doctrine of countermeasures, which allows states to take certain actions that would otherwise be unlawful in response to lawbreaking by another state. This doctrine offers not only the most similar case to the domestic separation of powers--it, too, regulates conflict among formally equal government institutions--but also the most reticulated body of rules on conditional self-help. In distilling these rules and connecting key principles to private law analogues, I hope primarily to facilitate analysis of U.S. constitutional practices. Much as Part II sought secondarily to advance the study of constitutional conventions, I hope also to contribute to the burgeoning literature on "self-help as a unified theme." (215)

   1. The Dilemma of Self-Help

      Self-help would not pose such a knotty problem for legal designers if it did not yield valuable benefits. But it does, sometimes. When individual actors are allowed to take unilateral measures to remedy the wrongdoing of others, in advance or in lieu of a mediated process, it may serve to deter such wrongdoing from occurring in the first place, reduce administrative costs, promote autonomy--or sovereignty-related values, and facilitate speedier redress. Less obviously, decreased reliance on third-party dispute resolution might serve to facilitate the maintenance of cooperative relations, mitigate feelings of alienation from the law, or generate deeper internalization of first-order legal norms. From any number of nonconsequentialist as well as consequentialist perspectives, self-help holds theoretical appeal. It certainly holds pretheoretical, atavis tic appeal. "Self-help of some kind has always been with us," (216) and so long as human (and institutional) nature remains fundamentally self-regarding and self-protective, it presumably always will.

      Against these potential benefits, the normalization of self-help carries tremendous risks, especially in the case of conditional privileges to act in ways that otherwise would be unlawful. In taking it upon themselves to rectify the misdeeds of others, self-helpers effectively act as judges of their own cause. There is ample reason to worry that they will misconstrue the law along the way-not just, or even primarily, on account of bad faith, but on account of motivated cognition (217) and reliance on congenial interpretive methods or theories of law. (218) That is, self-help increases the likelihood not just of legally abusive remedial determinations but also of legally erroneous ones. In so doing, self-help may tend to exacerbate asymmetries of power between the parties, favoring "the strong over the weak." (219) Self-help can also generate negative spillovers, paradigmatically in the form of escalating cycles of recrimination, retaliation, and violence. These overlapping concerns, together with the potential shift in decisional authority away from the courts, are enough to menace most any conception of a well-ordered society. Like bounty hunters, self-help is a mechanism for enforcing law that contains the seeds of a greater lawlessness.

      Importantly, this dilemma is not confined to legal regimes in which centralized enforcement is utterly lacking or radically defective. Quite the opposite. No regime depends entirely on third-party policing or adjudication to enforce its rules and administer remedies. To do so would be grossly inefficient, if not also incompatible with people's basic desires to defend themselves and to get even. It is "a ubiquitous, if underappreciated, feature of all legal systems, ancient and modern," that "heavy reliance" is placed "on the use of self-help to enforce legal commands" and to produce social control. (220) Constitutional law is no different, as has already been shown.

      Still, one might wonder whether other regimes could have much meaningful to say about constitutional self-help. In most areas of domestic law, the exercise of conditional self-help is subject to potential judicial oversight. If I take it upon myself to redress a perceived breach of my contract or property rights--say, by deducting damages from what I owe a seller (221) or by trespassing to reclaim a personal chattel (222)--then a court may eventually be engaged to review the legality of my actions. In the separation-of-powers context, by contrast, the shadow of adjudication is fainter. Legal disputes are less apt to be justiciable. (223) Courts play a comparatively minor role in supervising self-help, whereas mechanisms like elections and public opinion play a much larger role. Actual violence, moreover, is not such a pressing concern. It is a convention of inter-branch practice, we might say, that feuding government officials refrain from physically attacking one another. (224) (This is another example of how self-help not only polices violations of convention but is also itself partly conventional in nature. (225))

      These discrepancies counsel against any strong form of comparativism in theorizing constitutional self-help. They do not necessarily undermine more limited forms of intellectual arbitrage, however, such as the effort to extract organizing principles from different areas of law so as to consider how government practices stack up against those principles. And in any event, even if private law is placed to the side, there is another legal regime that more closely parallels the separation of powers with regard to managing conflict: public international law. It should go without saying that the comparison is inexact. Notably, nation-states may use military force against one another, which generates special pressure to regulate self-help ex ante. I will consider the implications of this and other points of disanalogy in Part IV.226

      But the two systems share important features, such as the dual role of public institutions as the primary authors and addressees of law, the tension between these institutions' formal equality in law and the potential for significant power imbalances, the prominence of customary norms as against codified rules, the broad scope for reciprocity and repeat play, and the modest scope of judicial review. Both systems are at the same time deeply dependent on, and vulnerable to, self-help by state actors.

      This observation would not have surprised the Framers, who appear to have drawn on international balance-of-power theories in developing the domestic separation of powers. (227) As recent scholarship has underscored, international law and constitutional law are beset by fundamentally similar problems of substantive uncertainty, democratic legitimacy, and--for lack of a centralized compliance authority standing above the state--enforceability against government officials. (228) Their conceptual and practical connections on these axes are foundational, so much so that it makes sense to speak of "public law" as a domain that straddles the two. (229)

      In pursuit of interbranch self-help insights, then, it seems appropriate to look not just beyond constitutional law but also beyond our borders. This is especially the case because international law, unlike constitutional law, has developed explicit, trans-substantive rules for regulating conditional self-help.

   2. The International Law Solution: Countermeasures Doctrine

      Among its so-called "secondary rules of responsibility," public international law contains a host of remedial doctrines that regulate self-help by states above and beyond the "primary" norms that dictate what they may and may not do ab initio. The principle of states' "untrammeled right to self-help" was a pillar of classical international law, (230) along with stringent notions of national self-determination and control over a defined territory. International lawmakers in the post-World War II era have endeavored to retain ample space for horizontal (state-to-state) enforcement, while limiting its negative externalities, enhancing formal dispute resolution mechanisms, and preserving the primacy of the United Nations system.

      Most famously, the U.N. Charter recognizes an "inherent right of individual or collective self-defence" for states subject to actual or imminent armed attack, "until the Security Council has taken measures necessary to maintain international peace and security." (23)' The right of self-defense may permit forcible responses, or reprisals, which otherwise would be unlawful. (232) International law also recognizes necessity as a basis for failing to fulfill certain obligations, in cases where that failure is "the only way a State can safeguard an essential interest threatened by a grave and imminent peril." (233) More mundanely, the international system allows a wide scope for retorsions...