“Liberty Under Law” Under Siege

Abe Chayes once taught a course at Harvard Law School that was essentially a series of anecdotes about how the State Department used to manipulate domestic and international legal rules to accomplish President John F. Kennedy’s political goals.1 It was my first hint that all was not what it seemed in international law. More recently, the state of American law generally, the NATO intervention in Kosovo, and some current trends in Britain and the European Union have led me to the unhappy conclusion that a gradual but insidious change in legal philosophy now imperils national and international law, much as a disease afflicts vital organs. The ailment in question is legal realism, the doctrine that the law is not a brooding omnipresence, an eternally valid set of postulates revealing the good life, but instead just a tool to be used to achieve particular social or political ends. This is the view, in short, that what a judge had for breakfast might be more important than any legal text to the outcome of a case.

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