W. Michael Reisman**
We need to pose three questions concerning nuclear weapons, but they ought to be kept distinct: What is the law in this matter? What should the law be? and, How can we go about changing the law so that it will more nearly approximate our preferences in the future? I suggest that we consider each of these questions separately and be careful not to narcotize ourselves into an imagined bliss by transforming only in our own minds preference into prescription. We no more serve the constituencies to which we are committed in doing that, than we would were we to advise a client whose life or treasure was in jeopardy what the law ought to be rather than what it is.
Observers of international social process should ask themselves whether or not there are expectations of authority and control supporting particular policies and whether those expectations are, in fact, held by politically relevant actors in that setting. If the answer to these questions is in the affirmative, it then becomes useful as scholars, and indispensable as practitioners, to conclude that we are dealing with law, understood not in a documentary but in a socially meaningful sense. An approach based upon such empirically referential tests is particularly necessary in the international system where law does not emerge from predetermined or easily recognizable institutions, and it is not regularly and authoritatively published in collections like the U.S. Code or the Corpus Juris. The observer and practitioner must select what is law from a massive flow of communications, much of it masquerading as law but being no more than just legalistic babble. For the observer looking at a particular process, the test is: Are the communications here sustained by authority and control and have they created coordinate expectations?
* This essay is based on remarks delivered at the New York Law School Symposium on Nuclear Arms and World Public Order held October 22, 1982. It is reprinted in edited form with permission from Volume 4, Number 2 of the New York Law School Journal of International and Comparative Law (1983).
** Hohfeld Professor of Jurisprudence, Yale Law School.