The Dogs That Didn't Bark: Why Were International Legal Scholars MIA on Kosovo?
Yoo, John C., Chicago Journal of International Law
When they can, people like to analogize a seemingly obvious, but unnoticed point to Sir Arthur Conan Doyle's Sherlock Holmes story of the dog that didn't bark.1 In the story, Holmes deduced a murderer's identity because a guard dog failed to bark at the time of the crime, implying that the murderer and the dog's master were one and the same. Similarly, legal scholars like to infer the failure of various parties or institutions to speak up about something as implicit acquiescence. While we all like to make inferences from a dog's silence, however, we often never ask what was wrong with the dog in the first place.
International legal scholarship is so frustrating and so disappointing for what it doesn't say, as much as for what it says. We rarely examine, however, what is so wrong with international legal scholarship that causes its failure to bark. At least the dog in the Holmes story had little choice; we can't blame a dog for recognizing the master who trained and fed him. International legal scholars, incredibly, often end up in the same place as the dog, even though they now enjoy so many choices or directions in which to work, spanning a number of disciplines and normative outcomes.
The failure of international legal scholars to challenge the recent war in Kosovo serves up a prime example of the dog that didn't bark. International legal scholars' inconsistent positions on war powers suggest that scholarship in the field has failed to progress because it is too attached to the ambiguous normative goal of promoting international justice. Instead of attempting to study and analyze the nature of international law and why it appears to succeed in some areas and not others, international legal scholars devote too much time to fantasizing about the ideal international legal order and criticizing threats to it. Yet, by engaging in such a valuedriven normative enterprise, these scholars undermine the very idea that neutral law, not raw power or ideological politics, governs international affairs.
Debates over war powers provide an example of the normatively-driven enterprise of international legal scholarship. In the 1980s and 1990s, prominent international legal scholars sharply criticized the use of force by Presidents Ronald Reagan and George Bush, who sent American forces into hostilities in places such as Grenada, Libya, Lebanon, Panama, and the Persian Gulf Throughout these wars, the leading lights of international legal scholarship argued that presidents who launched military interventions without congressional authorization had acted unconstitutionally.2 According to these professors, presidential war-making violated the Constitution's Declare War Clause, which they read to vest in Congress the authority to approve all uses of force. Some academics even allege that presidents who engaged the nation in hostilities in violation of the U.N. Charter (not in national selfdefense) compound the unconstitutionality of their actions by violating international law.3 International law, these scholars claim, is part of the law of the land, and therefore the President's constitutional duty to enforce the laws requires him to obey international rules.4
International law scholars take their views seriously, so seriously in fact that they have engaged in more direct forms of advocacy. Law professors supported challenges to the Reagan administration's military aid program for El Salvador,5 covert assistance for the Nicaraguan Contras,6 and American naval escort operations in the Persian Gulf.7 President Bush's war against Iraq provided the most notable example of the activism of international legal scholars. In an amicus curiae memorandum filed in a congressional lawsuit brought against President Bush,8 eleven prominent law professors argued that military action against Iraqi forces, without "the genuine approval of Congress," would violate the Constitution.9 In an effort to stop unilateral presidential war-making, they took to the popular press and the airwaves,10 testified before Congress,11 and even considered representing soldiers who might resist a call-up unless a declaration of war was issued. …