The Future as a Concept in National Security Law

With their focus on the future of national security law, the essays in this issue share a common premise: that the future matters to legal policy, and that law must take the future into account. But what is this future? And what conception of the future do national security lawyers have in mind? The future is, in an absolute sense, unknowable. Absent a time machine, we cannot directly experience it. Yet human action is premised on ideas about the future, political scientist Harold Lasswell wrote in his classic work The Garrison State. The ideas about the future that guide social scientific work are rational predictions, he suggested. If law is premised on ideas about something unknowable, something that can, at best, be a prediction, then it seems important to examine what those ideas, assumptions and predictions are. This essay examines future-thinking in prominent works related to national security, including the ideas that the future is peacetime, a long war, a next attack, and the future as a postwar. Drawing from scholarship on historical memory and conceptions of temporality, this essay argues that understandings of the future depend on more than the rational empirical predictions that Lasswell had in mind. The future is a cultural construct that depends in part on the way we remember the past. It does not exist apart from the politics and values that inform our perceptions. The future does not unfold on its own. We produce our future through both our acts and our imaginations. Culture matters deeply in this context, for the future we imagine is a well-spring of law

Who Cares About Courts? Creating a Constitutency for Judicial Independence in Africa

While American scholars and judges generally assume that it is beneficial to insulate courts from politics, Jennifer Widner offers a contrasting perspective from another region of the world. In Building the Rule of Law: Francis Nyalali and the Road to Judicial Independence in Africa, Widner examines the role of courts and judicial review in democratization in Africa. She focuses on the role of one judge, a man who would see himself as embodying a role in Tanzania similar to that of Chief Justice John Marshall in the United States. Francis Nyalali, Chief Justice of the High Court of Tanzania, worked to carve out a role for courts in the politics of his nation. He focused especially on the importance of public support for the courts, on judicial engagement with political culture, and on creating a constituency for judicial review. Creating a public that cared about courts was, for Nyalali, an essential component of democratic government. Widner, an African politics scholar, focuses on the development of the judiciary within common law Africa, especially Tanzania. Yet in constructing this narrative, she writes from a perspective sensitive to the ideas and assumptions held by U.S. scholars about American law and legal institutions. As a result, she often frames points by placing them within the context of ideas about the law prevalent in American scholarship. What results is a narrative about Africa that opens up new perspectives on legal institutions in general, including legal institutions in the United States; This Review first examines Widner\u27s depiction of Nyalali\u27s role in Tanzania. It then turns to the questions of how this African example can shed light on debates about courts in the United States and other nations. In particular, this essay argues that the example of Nyalali raises questions about the downsides of American assumptions about virtues of judicial disengagement

Death and the War Power

In the vast literature on American war powers, attention is rarely paid to the product of war, the dead human body, and its impact on war politics and war powers. In legal scholarship on the war powers, the practice of war usually happens in the background. Presidents, Congress, and courts are in the foreground. Killing in war is thereby a background phenomenon, an aspect of the social context within which the war powers are exercised

Book Review: Power and Prejudice: The Politics and Diplomacy of Racial Discrimination. by Paul Gordon Lauren.

Book review: Power and Prejudice: The Politics and Diplomacy of Racial Discrimination. By Paul Gordon Lauren. Boulder, Colorado: Westview Press. 1988. Pp. xv, 388. Reviewed by: Mary L. Dudziak