THE SHIELD OF ACHILLES (153 page)

69
. See Leland M. Goodrich, Edvard Hambro, and Anne P. Simons,
Charter of the United Nations
(Columbia University Press, 1969), 629 – 632.

70
. Oscar Schachter, “United Nations Law in the Gulf Conflict,”
American Journal of International Law
85 (July 1991): 464.

71
. Compare the strikingly similar hypothetical exercise used by Justice Hugo Black in his Charpentier Lectures to ridicule the position of Justice Frankfurter; see Hugo L. Black, “The Bill of Rights,”
New York University Law Review
35 (1960): 877 – 878. It suggests that even the plainest of the textual provisions of the Bill of Rights of the U.S. Constitution could be overridden by an appeal to extratextual values, like necessity.

72
. Most of McDougal's most important early work is collected in Myres S. McDougal and Associates,
Studies in World Public Order
(Yale University Press, 1960), although
in many ways McDougal's Hague lectures provide more insight into the development of his unique framework. Other important articles, although only a limited selection from a vast corpus, include: Myres S. McDougal, “Law as a Process of Decision: A Policy-Oriented Approach to Legal Study,”
Natural Law Forum
1 (1956): 53; Myres S. McDougal, “Some Basic Theoretical Concepts about International Law: A Policy-Oriented Framework of Inquiry,”
Journal of Conflict Resolution
4 (1960): 337; Myres S. McDougal and W. Michael Reisman, “The World Constitutive Process of Authoritative Decision,”
Journal of Legal Education
19 (1967): 253; Myres S. McDougal, Harold D. Lasswell, and W. Michael Reisman, “Theories about International Law: Prologue to a Configurative Jurisprudence,”
Virginia Journal of International Law
8 (1968): 188; Myres S. McDougal, “International Law and Social Science: A Mild Plea in Avoidance,”
American Journal of International Law
66 (1972): 77; Myres S. McDougal and W. Michael Reisman, “International Law in Policy-Oriented Perspective,” in
The Structure and Process of International Law
, ed. Ronald St. J. Macdonald and Douglas M. Johnston (Martinus Nijhoff, 1983), 103 [hereinafter Policy-Oriented Perspective]. On the contributions of his many students, see the Festschrift published on the occasion of his retirement:
Toward World Order and Human Dignity
, ed. W. Michael Reisman and Burns H. Weston (Free Press, 1976) [hereinafter
Toward World Order
], also containing a complete bibliography of works by and relating to McDougal; see also “International Law and International Relations Theory: A Dual Agenda,”
American Journal of International Law
87 (1993): 205.

73
. Anthony Kronman, “Jurisprudential Responses to Legal Realism,”
Cornell Law Review
73 (1988): 335; Jan Vetter, “Postwar Legal Scholarship on Judicial Decision-making,”
Journal of Legal Education
33 (1983): 412.

74
. As Anne-Marie Burley (herself one of the most insightful and distinguished of McDougal's heirs) concluded, “Although many of his students profited from his insights when turned to their own purposes, McDougal's most prominent disciple and heir to his jurisprudential approach is W. Michael Reisman.” See, e.g., W. Michael Reisman, “A Theory about Law from the Policy Perspective,” in
Law and Policy
, ed. D. N. Weisstub (Osgoode Hall Law School, 1976), reprinted as abridged in Myres S. McDougal and W. Michael Reisman,
International Law Essays: A Supplement to International Law in Contemporary Perspective
(Foundation Press, 1981), 1; and [other] co-authored works also written with McDougal.

75
. Reisman, 273.

76
. Richard Falk, “Casting the Spell: The New Haven School of International Law,”
Yale Law Journal
104 (1995): 1991 – 92.

77
. Reisman, 277.

78.
See generally Myres S. McDougal, “Legal Bases for Securing the Integrity of the Earth-Space Environment,”
Annals of the New York Academy of Sciences
184 (1971): 380; Myres S. McDougal and Harold D. Lasswell, “The Identification and Appraisal of Diverse Systems of Public Order,”
American Journal of International Law
53 (1959): 1; Winston Nagan, “Civil Process and Power: Thoughts from a Policy-Oriented Perspective,”
University of Florida Law Review
39 (1987): 453; W. Michael Reisman, “A Theory about Law from the Policy Perspective,” in
Law and Policy
, ed. Weisstub, 75.

79
. See for example, Samuel P. Huntington's well-known argument in
The Clash of Civilizations
.

80
. Emphasis supplied. Paula Wolff, “McDougal's Jurisprudence: Utility, Influence, Controversy,”
Proceedings of the American Society of International Law
79 (April 25 – 27, 1985): 270 – 271. One might add that even if there is a universal consensus on what people want for themselves, it does not follow, alas, that there is an identical consensus on what we are prepared to accord to others.

81
. Ibid., 284.

82
. Franck, 765.

83
. Louis Henkin,
How Nations Behave
(Columbia University Press, 1979), 40; see also Louis Henkin, “Force, Intervention and Neutrality in Contemporary International Law,”
Proceedings of the American Society on International Law
57 (1963): 168.

84
. Ervin H. Pollack,
Jurisprudence, Principles and Applications
(Ohio State University Press, 1979), 788.

85
. Dean Acheson, “The Arrogance of International Lawyers,”
International Law 2
(1968): 592; and also Dean Acheson,
Fragments of My Fleece
(Norton, 1971), 156.

86
. “The law is what the judges say it is,” Charles E. Hughes,
The Supreme Court of the United States
(Columbia University Press, 1928), 120; “the Constitution is what the Supreme Court says it is,” Charles E. Hughes,
Addresses and Papers of Charles Evans Hughes
(Putnam, 1908), 139 – 141.

87
.
Proceedings of the American Society of International Law
13 (1963): 14.

88
. See John Lewis Gaddis, “The Tragedy of Cold War History,”
Diplomatic History
17 (1993): 1.

89
. Vladislav Zubok and Constantine Pleshakov, “Great Britain,” in
The Origins of the Cold War in Europe: International Perspectives
, ed. David Reynolds (New Haven: Yale University Press, 1994).

90
. “The Soviet occupation of the Western Ukraine and Byelorussia from 1939 – 41 provide an example of how the Soviet system foreshadowed the policies Stalin would pursue after World War II. The entire program of phony elections, purges and mass shootings was carried out during the invasion of Poland in 1939.” The security police murdered 400,000 persons and expelled another 1.5 million to the interior. Jacob Heilbrun, “Who Writes the History: Neo-Revisionism and the Cold War,”
Current
, December 1994, 12.

91
. Quoted by Heilbrun, ibid.

92
. Douglas Brinkley,
Dean Acheson: The Cold War Years 1953 – 71
(Yale University Press, 1992); see also Dean Acheson,
Present at the Creation: My Years at the State Department
(Norton, 1969); and Gaddis Smith,
Dean Acheson
(Cooper Square Publishers, 1972).

93
. Brinkley, p. 66.

94
. Perhaps women will not fall prey to this conceit; in Acheson's day there were virtually no females at the Harvard Law School.

95
. See David McCullough,
Truman
(Simon & Schuster, 1992), 760 – 761.

96
. Acheson, “The Arrogance of International Lawyers,” 592.

97
. Brinkley,
Dean Acheson
; also quoted in Hodgson.

98
. Acheson, “The Arrogance of International Lawyers,” 598.

99
. Bobbitt,
Tragic Choices
, 18.

100
. Karl N. Llewellyn,
The Bramble Bush
; this is also a popular assertion in critical legal studies.

101
. Wolff, “McDougal's Jurisprudence,” 272.

102
. Judith Gail Gardam, “Gender and Non-Combatant Immunity” (Symposium: Feminist Inquiries into International Law),
Transnational Law and Contemporary Problems
3 (1993): 345.

103
. Hilary Charlesworth, Christine Chinkin, and Shelly Wright, “Feminist Approaches to International Law,”
American Journal of International Law
85 (1991).

104
. The constitution of the society of state-nations was very different: the Ottoman Empire was not admitted to this society until 1856.

105
. David A. Westbrook, “Islamic International Law and Public International Law: Separate Expressions of World Order,”
Virginia Journal of International Law
33 (Summer 1993): 829.

106
. See also David N. Kennedy, “A New Stream of International Law Scholarship,”
Wisconsin International Law Journal
7 (1998): 1, and his book
International Legal Structures
(Nomos, 1987); James Boyle, “Ideas and Things: International Legal Scholarship and the Prison-House of Language,”
Harvard International Law Journal
26 (1985): 327; and Phillip Trimble, “International Law, World Order and Critical Legal Studies,”
Stanford Law Review
42 (1990): 811; and Nigel Purvis, “Critical Legal Studies in Public International Law,”
Harvard Journal of International Law
32 (1991): 81.

107
. Bobbitt,
Constitutional Interpretation
.

108
. “Law is something we do, not something we have as a consequence of something we do. Sometimes our activities in law—deciding, proposing, persuading—may link up with specific ideas we have at those moments; but often they do not, and it is never the case that this link must be made for the activities that are law to be law. Therefore the causal accounts of how those inner states come into being, accounts that often lose their persuasiveness in contact with the abundance of the world, are really beside the point. If we want to understand the ideological and political commitments in law, we have to study the grammar of the law, that system of logical constraints that the practices of legal activities have developed in our particular culture.” Ibid., 24.

109
. See for example, Gunnar Schuster, “Extraterritoriality of Securities Laws: An Economic Analysis of Jurisdictional Conflicts,”
Law and Policy in International Business 26
(1994): 165; Joel Trachtman, “The Theory of the Firm and the Theory of International Economic Organization: Toward Comparative Institutional Analysis,” in
Symposium: Institutions for International Economic Integration, Northwestern Journal of International Law and Business
17 (Winter-Spring 1996 – 97): 470.

110
. Michael J. Sandel,
Liberalism and the Limits of Justice
(Cambridge, U.K.: Cambridge University Press, 1998).

111
. Ronald Dworkin,
Law's Empire
(Cambridge, Mass.: Harvard University Press, 1986).

112
. See Thomas Franck's
Fairness in International Law and Institutions
(Oxford University Press, 1995) for a sophisticated and even charming exposition of how Rawls's work might be applied to the issue of legitimacy in international law.