Read THE SHIELD OF ACHILLES Online
Authors: Philip Bobbitt
THE NEW HAVEN SCHOOL
Oscar Schachter posits this hypothetical: Suppose the U.N. Charter's unanimity rule for action by the Security Council were to be challenged on the ground that this rule was not, after all, compatible with the higher values of peace and security, as was shown countless times during the Cold War when the Soviet veto thwarted action by the Security Council. Suppose the network of treaties making up the Law of the Seas were to be held inconsistent with the fundamental goal of the freedom of the sea. Or imagine that one were to attack the decision of the International Court condemning Iran in the Tehran hostage case as invalid “by asserting it gives effect to diplomatic immunity, a ‘secondary' international policy rather than to national sovereignty, a ‘fundamental' goal.” There is no treaty, no legal rule, no precedent that cannot be unseated by an appeal to higher values— which is a way of saying that law is replaced in such analysis by policy. The object of this hypothetical exercise
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is to ridicule gently the New Haven School,
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which exalts the fundamental values of world order as the indispensable guide to determining and applying international law.
The New Haven School is an informal collegium that resulted from the remarkable collaboration between Harold Lasswell, a polymath social scientist, and Myres McDougal, a Legal Realist law professor at the Yale Law School and academic empire builder of whom Clive would have been envious.
By the mid-1930s Legal Realism had successfully discredited the image of lawyers and judges mechanically finding the law and unreflectively applying it. The result was a widespread disillusionment with legal institutions as they came to be seen as more politicized and therefore less detached than had hitherto been believed. But whereas the three schools previously discussed each attempted to restore legitimacy to law and deflect the Legal Realist's indictment through a series of avoidance maneuvers, the New Haven School robustly embraced the fundamental insights of Legal Realism.
To the Legal Realists, law was “too filled with conflict… leaves too much open… too much to be decided” for legal rules to completely control a decision.
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Yet it was this mechanistic, formulaic image that had sustained the law's prestige in the era of the state-nation. If there were
choices
to be made—inevitable, ineluctable, inescapable choices—then axiomatic legitimacy could not be accorded whatever decision was made.
As Michael Reisman, the scion of the New Haven School dynasty,
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put it, McDougal and Lasswell—the School's patriarchs—undertook a “constructive operation… in the world community shattered by World War II precisely because the classical system [of world order] and the classic legal tradition were not working.”
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Richard Falk, the Absalom figure in this drama and another second-generation spokesman for the New Haven School, noted:
The McDougal and Lasswell undertaking can be regarded as converting the core insight of legal realism into a comprehensive framework of inquiry, including the provision of a normative rudder… dedicated to the promotion of human dignity—by which to assess the relative merits of opposing lines of argument…
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But of course Legal Realism did not simply fail to provide “a normative rudder”—it denied the very possibility of one, apart from one arbitrarily chosen (or unconsciously adopted). As a result, the New Haven School's helpful proposal of a golden rule by which to assess all other rules has proved to be the most controversial part of its program. That program does indeed co-opt, as Falk argues, the core insight of Legal Realism: that law is more than a collection of rules and that it is a continuous process of “authoritative decisonmaking.”
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But in addition to its descriptive dimension (which is wholly consistent with the program of the Legal Realists) the New Haven School has a prescriptive dimension (which breaks new ground). The latter reflects the ethical norms of the parliamentary nation-state, not the scientistic ethical detachment of Legal Realism (even though it sometimes, unfortunately, adopts its locutions).
The New Haven School descriptive program depicts a process of law creation and application that aims to clarify the choices made by decision makers. Lawyers are assigned the role of “experts in making and helping others to make rational choices about law.”
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Instead of merely summarizing the available precedent, the New Haven School attempts to analyze the factors that led to particular precedents and to posit various alternatives, using empirical studies where possible. The purpose of any process of legal decison making is to allocate resources according to the values of the community. The objective of the New Haven School analysis is to allow the decision maker to maximize the degree to which these desired values are in fact reflected in the ultimate allocations.
So far we have the program of the Legal Realists: to enable decision makers to maximize social values,
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going beyond the casual assemblage of anecdotal evidence confirmed by precedent and aiming instead at a systematic assessment of the empirical bases for all policy alternatives. McDougal, however, wished to ground this assessment in a particular set of values: specifically he wanted to measure all international law against the goal of promoting a world order founded on the fundamental principles of human dignity. This is the prescriptive side of the New Haven School program. McDougal subtly insinuated this prescription into the Realist program by claiming to have empirically determined the expectations of the community whose values law is supposed to promote.
For international law, McDougal held that the relevant community is that of the entire “earth-space” in which people interact. Far from concluding that such a space includes communities of incompatible value systems,
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the New Haven School identifies a common goal, human dignity. The realization of this common goal requires, as a practical matter we are told, a free, democratic, parliamentary nation-state.
Schachter is wittily dubious about this “empiricism” and attempts to turn the argument, as we shall see, into a textual one. He writes:
But how does one discover the values that some four billion people actually hold? McDougal has no great difficulty. He finds without any research but quite plausibly that the “overwhelming numbers of people of the world” want peace, security, respect, the right to determine their own destinies. These aspirations are summed up as the values of human dignity… A cynical critic may question the assumption that these values are universally shared. It is not only that they are rejected by many repressive regimes; it is also evident that peoples everywhere manifest aggressive tendencies, show contempt for different faiths and cultures, seek to dominate and coerce others. Can we say on a purely empirical basis that respect for the worth of an individual is a value held by most peoples?… The important fact for law and international politics is that these “higher” values have been accorded normative status by their inclusion in
authoritative instruments
[the texts of treaties, conventions, declarations, etc.] that have been accepted by virtually all of the world's governments… Their normativity also has a legal character inasmuch as they are embodied in legal principles expressed in such authoritative instruments as the U.N. Charter and other major treaties.
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It is easy to see the distinction between Schachter's reliance on texts and McDougal's program. McDougal, too, realized that the values of human dignity can “be found in expressions in the U.N. Charter, the Universal Declaration of Human Rights,” and other documents. But while for Schachter this is what gives humane values their legal authority, for McDougal their presence in legal documents was merely evidence of the ethos of humanity underlying those documents. “The ‘precedents, treaties,
and established legal concepts' to which Professor Schachter refers are of course relevant, but they are relevant only for the policies they express.”
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McDougal maintained that there was an ethos present in the society of states—the drive to win and secure human dignity—and this proved a decisive insight in the Long War between the parliamentary nation-state and its Communist foes. He correctly saw that there was no middle ground.
History is encoded in our institutions. McDougal sought to read that code by means of his meticulous if sometimes tedious lists. The history he read there united the basis of the legitimacy of the parliamentary nation-state (its commitment to individual dignity) with its strategy (to achieve a world order in which this commitment was not under mortal threat). But this position was not “compelled” by legal argument, no matter how passionately McDougal adhered to it.
The New Haven School has been controversial throughout this era. Thomas Franck has disparagingly written of “vogue-ish legal thinking, dominated by the school of policy science, [which] has professed its normativity even while advancing a theory of creative interpretation of positive law that is nihilist in all but name, thus pitting the descriptive and prescriptive aspects of the School against each other.”
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Louis Henkin has criticized the School's view of law as a policy process by noting that it is a view of law “not as is but always as becoming… The law is what God, or the United Nations, or History… will say—later—in judging what nations had done in the light of context and consequences.”
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But no criticism was quite as furious as that which came from the staunch anti-Communist Dean Acheson.
NEOREALISM
Pollack concluded in 1987 that
American legal realism reached the zenith of its popularity in the first half of the twentieth century. Its supporters included many of the leaders in legal education, the judiciary, and the bar. This popularity, however, declined rapidly, and today the theory is without important representation.
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This statement can only be true if the author intended to exclude virtually all senior officials working in the U.S. national security establishment. As Acheson put it in a scathing attack on McDougal:
Those who devote themselves to international relations in foreign offices at what is disparagingly called “the working level” are understandably and wisely reticent about the role of law. This, however, is not true of academicians who write about it and teach it…. When former
Justice… Hughes bluntly… said that the Constitution is what the Supreme Court says it is, the lawyers were not too shocked, although they pretended that they were.
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Acheson was referring to one of the sacred texts of Legal Realism, the remark
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by Chief Justice Charles Evans Hughes—also a former Secretary of State—that appeared to concede Karl Llewellyn's point that law is a matter of what decision makers decided it to be. Moreover, Acheson accurately (I believe) represented the attitudes of many diplomats and officials that international law is little more than a pretentious irrelevance. George Kennan, whom we may take to speak for the career foreign service and other military and intelligence professionals, shared this view. I will not quote at length Kennan's celebrated attack on international law, because Acheson is a more influential figure in this matter, perhaps because Acheson, unlike Kennan, was trained as a lawyer and became a distinguished partner at Covington and Burling. More importantly, he was “present at the creation” not only of the doctrine of containment, NATO and the Marshall Plan like Kennan, but also of Legal Realism. A protégé of then-professor Felix Frankfurter at the Harvard Law School, Acheson was selected by Frankfurter, a leading Realist, to become law clerk to Supreme Court Justice Louis Brandeis, a leading icon to Legal Realists. Brandeis, Acheson would later say, “had taught him to be both a pragmatist and an empiricist,” the prescriptive and descriptive embodiments of Legal Realism.
In 1949, President Truman appointed Acheson secretary of state. His immediate task was to complete the process of bringing Germany and Japan into the society of states. In both cases, Acheson worked to qualify the sovereignty of the formerly fascist states where he ardently sought the development of democratic institutions. He was apparently heedless of the arguments from international law that these states had the right to develop their own security structures as they saw fit by virtue of their sovereignty, arguing instead that “world structure and order” demanded these invasive restraints. Because it was a matter of the stakes at risk in the Long War, which went to the heart of the constitutional existence of the parliamentary nation-state, Acheson believed American action on these questions could not be governed by any international legal rule. After all, the society of states that created such rules takes its legitimacy from its constituent states; how therefore could that society insist on the application of rules that might be fatal to its leading members? He later wrote:
I cannot believe that there are principles of law that say we must accept destruction of our way of life… [when] the power, position and prestige of the United States ha[s] been challenged by another state… [L]aw simply does not deal with such questions of ultimate power…
No [international] law can destroy the state creating the law. The survival of states is not a matter of law.
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Note the
structural
basis for this argument—that international law is created by a society of states that draws its constitutional power from its constituent members, and thus cannot impose legal rules that undermine the constitutional vitality and survival of the states themselves. It is impor-tant to distinguish this form of argument from the merely prudential—that it is simply wiser not to follow such legal rules—because although structural arguments have a prudential component, their terms basically are set by a constitutional structure and the inference that any legal rules thus derived must cohere with that structure. This principle provides the goal against which the prudence of any particular means is measured.
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The Neo-Realist finds something in the structure of international relations—its organization around states, their drive for power, their varying and often conflicting national aspirations, the differences in strength among them, the lack of a common morality—from which, given certain commonsense assumptions about strategic behavior, legal rules can be inferred. For example, consider the syllogism: (1) the constitution of the society of states provides for the sovereignty of all members; (2) thus there must be at least one thing that a state alone can decide for itself (there may be more) or states would not be sovereign; (3) determining one's vital interests is one item that must be for the state alone to decide because, as a practical matter, if this determination were in other hands the state would cease to be sovereign as all its other decisions could be manipulated or dictated. From this argument a legal rule regarding the admissibility of self-defense can be inferred—“A state always has the right to act on behalf of its vital interests—that is, those interests without which it would cease to be able to perpetuate its society's way of life.” This is in contrast to an argument that adduces reasons extrinsic to the structure of the society of states, either drawn from morality (“Some means of defending vital interests are inherently immoral and thus legally indefensible, for example, the use of nuclear weapons”) or from efficiency (“An arms embargo can legally be imposed on a state—like Bosnia—despite its sovereignty if the import of arms would only prolong a war whose outcome is foreordained”) or from some other, nonlegal parameter.
It was Acheson who brought Paul Nitze to the State Department. As director for policy planning, Nitze became the principal author of NSC-68, which firmly established a version of the doctrine of containment for
which Kennan's famous Long Telegram
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was, in retrospect, an overture. NSC-68
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contained as its centerpiece a quotation from the
Federalist Papers
(#28), the most important legal document construing the U.S. Constitution and itself a rich mine of structural arguments about the relation between constitutional law and strategy.
There continues to be a debate, much of it revolving around NSC-68, about which country, the United States or the USSR, was responsible for the Cold War.
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From the perspective of the present work, the two sides in this debate both manage to be wrong, claiming, respectively, that the United States started the war or that the Soviet Union did. The Cold War didn't “start”; rather the Long War never stopped. The United States bears responsibility for this, because the U.S. made “the move to war,” continuing the Long War, when it refused to acquiesce in Soviet expansionism. The key event was the invasion of South Korea, which was part of a general Soviet strategy.
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In June 1946, Litvinov told an American correspondent that if the West granted all of Stalin's demands, “it would lead to the West being faced, after a more or less short time, with the next series of demands…” owing to “the ideological conception prevailing here that conflict between the Communist and capitalist worlds is inevitable.”
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There was “nothing” the United States could do to satisfy the Soviet Union, he told Averell Harriman. Until North Korea invaded the South, however, Truman refused to endorse NSC-68 and to increase military spending. In 1948, the administration had limited defense expenditures to $15 billion for 1950 and beyond, whereas NSC-68 had called for budgets more than twice that size. After the Korean invasion, the defense budget leaped from 5 percent to 12 percent of U.S. GNP. Acheson was the figure who made the strategy of NSC-68 into reality, orchestrating the effort to persuade the U.S. Congress to fund the military buildup and the Marshall Plan.
Yet Acheson was not a popular figure in Congress or in the country. Partly it was his habit of speaking too sharply (and too epigramatically) about his contemporaries. Adlai Stevenson, Acheson remarked, “had a third-rate mind that he can't make up.”
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The years Chester Bowles had spent doing advertising had created in him “a permanent deformity like the Chinese habit of footbinding.”
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The people Dulles brought to the State Department when he succeeded Acheson as secretary “always seemed to me,” Acheson said, “like Cossacks quartered in some grand city hall, burning the paneling to cook with.” Partly it was his demeanor: great success in law school often conveys to young men who achieve it a certain haughtiness owing to their discovery that they are easily measured as superior to other brilliant young men at a way of thinking that is supposed to encompass all human endeavor.
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Acheson's trans-Atlantic accent sounded like a phony affectation to Midwestern ears, an image enhanced by his waxed mustache and his tweeds. Perhaps the most famous remark about Acheson was made not by his mentors Brandeis and Frankfurter, but by Senator Hugh Butler of Nebraska, who said, “I look at that fellow, I watch his smart-aleck manner and his British clothes and that New Dealism in everything he says and does, and I want to shout, ‘Get out! Get out! You stand for everything that has been wrong in the United States for years.’”
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No one would have said that about Myres McDougal, with his large bearlike figure and green eyeshade, more reminiscent of Roscoe Pound and the country store than of the Metropolitan Club. Though in fact McDougal's politics—with their redistributionary objectives, goals of racial equality, and statist definitions of property—were well to the left of Acheson's, McDougal's genuine warmth and affection for people made him less a target of personal attack than did Acheson's imperious manner. When Acheson attacked McDougal over U.N. sanctions against Rhodesia (Acheson had called the U.N. an “international orphan asylum”), the tone of his assault makes one wince, and although he accused McDougal of being “intoxicated by the exuberance of his own verbosity,”
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it is a charge that more closely fits the attacker than the attacked. Acheson claimed that McDougal, in calling for economic sanctions against the white supremacist government of Rhodesia, “would impose upon states in the name of law [his] own subjective conceptions of justice.” In a later memorandum to the Nixon White House, Acheson railed against the “subjugation of Rhodesia to majority rule.”
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“Conscience used to be an inner voice of self-discipline; now it is a clarion urge to discipline others.”
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These remarks illustrate the difference between structural, Neo-Realist perspectives that tend to subordinate all issues to strategic matters (Rhodesia was a functioning, anti-Communist state), and ethical, New Haven School approaches that have the virtue (or the shortcoming) of treating the human rights of every person as equally valuable. Both approaches are to be
sharply distinguished from what I will call Perspectivism—the adduction of extrinsic facts about the world, that is, facts not confined to the consti-tutional ethos of the society of states, nor to its constitutional structure—in order to resolve the Legal Realist's dilemma. That dilemma may be expressed thus: how do we restore legitimacy to law when it is subject to everyone's interpretation, and especially that of the deciders who create it and demand that the rest of us obey? The hard-working practitioners of American diplomacy, like their counterparts in law firms, may have an answer to this dilemma: they embrace it, and relish the fact they happen to be the deciders, but this is not a welcome solution to everyone else, and certainly not to Perspectivists.