The Fog of Certainty

11 Pages Posted: 12 Dec 2009

See all articles by Robert B. Ahdieh

Robert B. Ahdieh

Texas A&M University School of Law

Abstract

In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”

For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that true, little if anything would be law. The sources of law, meanwhile, are not singular, but plural. Even were international law not domestic law, it would still be law.

These errors, in the final analysis, are fairly basic. Before discussing them, consequently, this Yale Law Journal Online response considers how Professor Paulsen ends up going so completely astray. Here, his essay's invocation of Clausewitz’s “fog” of war - with its attendant distortions and misperceptions - is perhaps telling. A species of just this may be at work here, with Professor Paulsen misled not by the fog of war, but by an exaggerated sense of certainty in both the premises with which he begins, and the conclusions he seeks to advance.

Keywords: international law, constitutional law, customary international law, positivism, Austin, Fog of War

JEL Classification: F02, F15, F33, F42, H56, H77, H87, N40, N70, O19

Suggested Citation

Ahdieh, Robert B., The Fog of Certainty. Yale Law Journal Online, Vol. 119, 2009; Emory Public Law Research Paper No. 09-87. Available at SSRN: https://ssrn.com/abstract=1522454

Robert B. Ahdieh (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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