Lessons for International Law from the Gulf War

Politically and militarily, the War in the Gulf remains an unsettled event. Although nearly two years have passed since the War, its political consequences are still evolving. Militarily, the recent reintroduction of allied forces into Iraqi air space suggests that the War continues, though at a much reduced level. In the long run, the War will probably be seen as a footnote to the larger political upheavals that marked the start of this decade—noteworthy because it made visible the realignment of the international order that had already occurred. While the War may be merely a footnote from the perspective of political history, it is a major event from the perspective of international law. It marked one of the few occasions on which there was a deliberate invocation of international law to justify military force. For this reason, an examination of the War can teach us much about the reality of, and possibilities for, international law. Given the continuing tumultuous politics of Eastern Europe and the former Soviet Union, this legal reconsideration is important. Already, the international-legal machinery deployed in the War has served as a precedent for United Nations Security Council action authorizing military intervention in Bosnia and Hercegovina. We are moving rapidly toward a new world order of some sort. While it may be too early to predict the political shape of that order, it is not too early to consider the role that international law may play in it. Before we raise our hopes for a vital future for international law, we need to fully understand the character and power of existing international law. To that end, it is useful to examine international law as it operated, and failed to operate, in the Gulf War

Gramm-Rudman and the Capacity of Congress to Control the Future

The Balanced Budget and Emergency Deficit Control Act of 1985, popularly known as Gramm-Rudman, raises formidable constitutional issues. Among the issues raised by the Act, one has not received adequate attention. That issue is the unique temporal aspect of Gramm-Rudman: the attempt of one Congress to constrain future Congresses. Although the constitutional arguments raised by the litigants have been partially successful thus far, there is a disjunction between the formal constitutional arguments and the substantive concern with the Act among both politicians and the public. Neither the nondelegation doctrine nor the separation of powers doctrine—the main grounds on which the Act has been attacked—touches the substantive problems that the Act has created

Owen Fiss: Heroism in the Law

Owen Fiss has been my teacher, my colleague, and my friend for 25 years. There is probably no one in the profession to whom I feel closer. I don\u27t think I am alone in this feeling of admiration, respect, and friendship. In part, this Fissian magnetism can be accounted for in very personal terms. Owen goes out of his way for others, expressing genuine affection and concern. But the respect that Owen draws is based on something bigger: He is a hero of the law. Owen always has represented the possibility of the ideal within the law, but we can distinguish three different stages of his battle to match the ideal and the real. The progression among those stages is unfortunately a story of the diminishing possibilities for justice within law. As the law has diminished, Owen\u27s personal battle for justice has become all the more heroic

Comparative Constitutionalism in a New Key

Law is a symbolic system that structures the political imagination. The rule of law is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is a nation under law, and law is a normative measure of all that it might do

Comparative Constitutionalism in a New Key

Law is a symbolic system that structures the political imagination. The rule of law is a shorthand expression for a cultural practice that constructs a particular understanding of time and space, of subjects and groups, as well as of authority and legitimacy. It is a way of projecting, maintaining, and discovering meaning in the world of historical events and political possibilities. The rule of law - as opposed to the techniques of lawyering - is not the possession of lawyers. It is a characterization of the polity, which operates both descriptively and normatively in public perception. Ours, we believe, is a nation under law, and law is a normative measure of all that it might do. That the polity should express the rule of law is a belief that has been present from the revolutionary foundation of the nation. The end of the Revolution was to be the rule of law. Mexico may have sought to institutionalize revolution. In America, with abolition of the monarch, law was to be king. In our Founding myth, Revolution and Constitution are tightly bound together as equal and linked expressions of popular sovereignty. The historical sources from which this understanding of law draws are not technical, but widely accessible. They are rooted in religious conceptions of ultimate meaning and Enlightenment understandings of rational perfectionism. The rule of law is our civic religion; it exists just at the intersection of faith and reason