Arthur Selwyn Miller and Martin Feinrider
Since the first primitive atomic bombs all but obliterated Hiroshima and Nagasaki in 1945, few lawyers have questioned the doctrine that a nation-state at war may employ such weapons in its absolute discretion. The time has come—indeed, it is long past due—to examine this doctrine critically under the precepts of both international and constitutional law. This volume is the first effort to present a rounded critique of the conventional wisdom about the legality of nuclear weapons.
In large part, the several essays published here are forays into legal terra incognita. Those who question the legality of the manufacture, storage, deployment, and possible—some say likely—use of nuclear bombs, are responding to Albert Einstein's oft-quoted challenge: “The unleashed power of the atom has changed everything save our modes of thinking, and we thus drift toward unparalleled catastrophe.” Even those who doubt that law can have much, if any, efficacy in dealing with nuclear weapons agree with the others, and inferentially with Einstein, that change must come in “our modes of thinking” if the human race is to survive.
It is, of course, quite easy to dispute the idea that law has anything meaningful to say about the nuclear peril. The immediate objection, noted in some of the essays in this volume, is that there is no precedent for law controlling such terrible weapons without the explicit consent of the states possessing them. There is no existing law on the subject, they say. (Some of the authors argue that there is law on the subject, particularly those writing in the international law field who cite the principles of law recognized by nations, the U.N. Charter, the Geneva Conventions of 1949 on the law of war, and other treaties.) The argument about lack of precedent, which common lawyers see as basic to the very idea of law, is only seemingly valid. In the last analysis, stare decisis, taken to its illogical conclusion, merely says that nothing should ever be done for the first time. The history of law is to the contrary; it is one of growth, of the adaptation of legal precepts and principles to new factual situations, and of the creation of new principles as required. Just as at Nuremberg, when the Allied powers had to face the defense argument of the Nazi war criminals that there was no law under