The Perils of Positivism: A Response to Professor Quigley

Professor Quigley\u27s article is a classic demonstration of the perils of positivism. Putting factual errors to one side—and they are numerous—its fatal flaw is jurisprudential. It treats legal rules as if they were machines entirely divorced from their context of history and policy, capable of answering legal questions without thought or deliberation. Quigley is dubious about the proposition that Iraq committed an act of aggression by invading and attempting to annex Kuwait in 1990. He regards Iraqi claims against Kuwait as substantial, even if, in his opinion, they did not quite justify Iraq in seizing and swallowing the country by force. He argues, however, that because the world community has severely punished Iraq for what it decided was a violation of Article 2(4) of the United Nations Charter, it should apply the same remedies against Israel for what Quigley regards as clear-cut Israeli aggression against Egypt in June, 1967. He accomplishes this breath-taking feat of legal legerdemain by assuming that the infallible way—indeed, the only way—to discover whether a state has violated Article 2(4) of the Charter is to determine who fired the first shot. After a thin, questionable, and incomplete review of the events surrounding the opening moments of the Six Day War in June, 1967, Quigley concludes that Israel did indeed fire the first shot, and therefore should be quarantined or bombed and invaded until it purges itself of aggression—at least by evacuating the territories it occupied during the Six Day War. Unless this is done, Quigley concludes, the United States and the United Nations Security Council (Security Council) will stand condemned for applying a double standard in their interpretation and application of the Charter

The Reinterpretation Debate and Constitutional Law

I wish to raise two issues with respect to Professor Koplow\u27s article. The first is whether it is proper for the American Society of International Law to undertake the report which served as the basis for the Koplow piece. I believe that it is improper for the Society to issue a collective public statement endorsing one side of a partisan political controversy. Secondly, with respect to the substance of Koplow\u27s argument, I disagree with parts of his analysis and find his proposed solution for the dilemma of treaty interpretation unsatisfactory in principle and unworkable in practice

Book Review: Government from Reflection and Choice : Constitutional Essays on War, Foreign Relations, and Federalism. by Charles A. Lofgren.

Book review: Government From Reflection and Choice : Constitutional Essays on War, Foreign Relations, and Federalism. By Charles A. Lofgren. New York, N.Y. and Oxford: Oxford University Press. 1986. Pp. xviii, 235. Reviewed by: Eugene V. Rostow

Bituminous Coal and the Public Interest

One of President Roosevelt\u27s most appealing intellectual claims for the New Deal was that it would experiment with policy, and would discard the experiments which failed to work. It is time to admit that the enterprise represented in the Bituminous Coal Act of 1937 is an experiment which has failed, and, in the nature of the coal industry, had to fail. On April 26, 1941, the Act ceases to be in effect. It should not be renewed. The Act, providing for the establishment of minimum prices in the coal trade, is one of a series of depression developments which radically changed our price policy. But the Great Depression of the thirties is over, and this is a favorable time to appraise the institutions which grew out of it. It is especially urgent to reconsider the statutes and habits which constitute price policy, for the success of present and future plans toward the development of the economy largely depend on the way in which industry is organized, and its product sold. During the last ten years the competitive forces in many areas of the economy have been restricted, and non-competitive arrangements have been created in the name of stabilization and other slogans. The machinery controlling the trade in soft coal is a case in point; the development of that institution offers material for studying the origins, the methods, and the consequences of many such schemes of restrictive regulation