Nathan N. says:
Without question, many/most in the NLG buy this "illegal war" approach to the law, but I side with an earlier generation of left lawyers, the legal realists, in believing the law is not what academics might wish, but what the law is in practice. And the United Nations has sanctioned a wide array of wars with quite flexible definitions of "self defense."
I don't believe in a platonic "Law" that exists abstractly but nowhere in practice.
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CB: The practice that got us the anti-war provisions of international law was in WWII and at Nuremberg. That's some of the best actually existing, legally real law there is and we should defend it.
The "Law" is not a platonic ideal , as you say, and so in the present situation "The" law is something that results from a struggle. It does not already exist in Plato's cave to be discovered, but is the product of a fight. We , you and I, are the ones who are supposed to make the fight.The law of this situation is not "well-settled". I don't think I am disclosing any "trade secrets" or ruining lawyers' reputations to say that lawyers can argue both sides of situations that are not well settled and that our job in this type of case is to argue for "the Left" as our "client". There is no reason to capitulate to somebody who announces the war is legal.
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There are many things that are legal, which I oppose. And many which are illegal which I support. The Gulf War was sanctioned by every measure of international law, yet I think it was wrong.
Whether a war is legal or illegal is a matter of relative indifference to me in a world of international inequity and violence, where those deciding the "legality" of violence are largely those with the biggest guns.
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CB: Yes, but when we get good laws such as the anti-war laws we here discuss, we should try to enforce them.
Law isn't everything, but it is as good as some of the other bases upon which the "oughts" and "ought nots" of these actions are being argued.
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The only issue is whether a particular conflict is fought for moral and just goals, with a reasonable likelihood of success in those goals. Most wars fail that test. The Kosovo intervention was the only largescale conflict by the US that has met that standard for me in my lifetime.
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CB: No harm in using actually existing laws in making your arguments on morality and justice. The UN anti-war provision are based on the lessons of WWII and the horrors of war in general. Doesn't that give them moral and justice standing as good or better than any other source you or anyone else is using for a moral standard ? Geez, the world's nation states get it right, and write it down and we don't use that "legal realism". That's a long way from academic jurisprudence. We have a real law that is real good , and you cave so easy. Where is your adversarial inclination ? Can't you even give the NLG majority/Left lawyer majority side of the argument , with a straight face and enthusiasm , even ? There is a better argument, much better argument for the illegality of this war than you might have for many of your clients' cases and for whom you will be obligated to make the best argument , regardless.
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The obsession of left lawyers with "legality" is in my mind a degeneration of a once proud tradition that questioned the war positivism of legal power in the world, which sought to replace the question of what is legal with what is just. The latter question of justice is the only one that matters. The rule of law may often serve justice, but it is a tool of the latter, never its master.
- -- Nathan Newman
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CB; The argument that this war is unjust is even easier than that it is illegal. I could argue the injustice of the U.S.actions for 100 pages, but "justice" is such a corny , Platonic idealist concept, so we are thrown out of the court of equity into the law. In equity the U.S. is through, and even at law.