Thursday, November 17, 2022
Deborah N. Pearlstein (Cardozo), What War Did to the Academy, What the Academy Did to War: A 20-Year Retrospective on the Effects of the Post-9/11 Wars, 54 Case W. Res. J. Int'l L. 171 (2022):
The history of the legal academy’s impact on the way states fight wars is hardly one of unmixed glory. It was a law professor moonlighting for President Lincoln who authored “Instructions for the Government of Armies of the United States in the Field” during the Civil War, a code still recognized worldwide today for having laid critical groundwork for the modern law of war. It was likewise a law professor whose work came to serve as both theoretical and practical justification for the sweeping powers of the Nazi state. So it should perhaps be unsurprising that, two decades of engagement with the post-9/11 wars, academics’ influence on U.S. legal policy reveals an equally mixed picture. Many law professors labored to challenge government policies in defense of human rights and the rule of law, representing clients inside government and out. Others played critical roles in justifying or legitimating legally and morally suspect state behavior. But what is perhaps most striking about this record, on which this Symposium invites us to reflect, is the extent to which scholars today continue to debate which effect was which. Among the more challenging critiques levied against those who advocated government compliance with international humanitarian and human rights law has been the worry that such efforts, however well intentioned, in fact functioned to legitimate many of the most problematic U.S. policies of the era.
This essay argues that many of these critiques are unpersuasive. But as a genre, they are worth taking seriously. For they reveal the multiple modes through which lawyers and legal academics can profoundly impact not only how states fight wars, but also how policy makers frame the decisions they face. This era saw the end of a time when it was possible for legal academics plausibly to assume – as was conventional wisdom when the attacks hit – that law would fall silent in time of war. In its place, I argue, the era gave rise to a new risk – that legal analysis might eclipse or even supplant the other modes of thought war policy demands. For as complex and indeterminate as legal scholars might know law to be, engagement with law and its learned counselors can still seem to policy makers a reassuring source of authority, offering the hope that a determination of an action’s legality might ease the burden of having to face much harder questions about an action’s moral, political, or practical sense.