Review: Fidelity to Law and the Assessment of Political Activity (Or, Can a War

Criminal Be a Great Man?)

Reviewed Work(s): Kissinger by Marvin Kalb and Bernard Kalb: The Cuban Missile Crisis
by Abram Chayes
Review by: Sanford V. Levinson
Source: Stanford Law Review , Apr., 1975, Vol. 27, No. 4 (Apr., 1975), pp. 1185-1202
Published by: Stanford Law Review

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 Fidelity to Law and the Assessment of Political Activity
(Or, Can a War Criminal Be a Great Man?)

Sanford V. Levinson*

KISSINGER. By Marvin Kalb and Bernard Kalb. Boston: Little, Brown and
Company. I974. Vii + 577 pages. $I2.50.

THE CUBAN MISSILE CRISIS. By Abram Chayes. New York: Oxford Uni-
versity Press. I974. Viii + I57 pages. $5.95.

Q. [U]nder what international law do we have a right to attempt to destabilize

the constitutionally elected government of another country, and does the Soviet
Union have a similar right to try to destabilize the government of Canada, for
example, or the United States?

A. I'm not going to pass judgment on whether it is permitted or authorized un-

der international law. It is a recognized fact that historically as well as presently
such actions are taken in the best interests of the countries involved.1

President of the United States Gerald R. Ford, a lawyer trained at Yale

Law School, almost certainly speaks for a majority of his fellow citizens
in proclaiming himself indifferent as to whether the United States is (or
ought to be) obeying international law. The specific subject of the question
asked him, of course, was the recent intervention in Chile, where the United
States, acting principally through the authority of Henry Kissinger, syste-
matically encouraged the destabilization of the Chilean government headed
by the democratically elected Marxist, Salvador Allende.2 But the indif-
ference about fidelity to international law runs far deeper than this particu-
lar instance; it pervades the central event of American foreign policy in the
last decade, the Vietnam War. Although such indifference is most obvious
in regard to international law, infidelity to law, to adopt Archibald Cox's
comment about equality, is not an idea easily cabined once unloosed, and
doubts about the duty to obey international precepts spill over into the more
common domestic context.
For radically opposed reasons both of the books under review help to
provide a means of assessing the relationship, if any, between fidelity to
* B.A., I962, Duke University; Ph.D. I969, Harvard University; J.D. I973, Stanford University.
Member of the California bar.
I. Gerald Ford, President's News Conference of Sept. I6, 1974, in IO WEEKLY COMPILATION
OF PRESIDENTIAL DOCUMENTS II57, II62.
2. See Hersh, Kissinger Called Chile Strategist, N.Y. Times, Sept. I5, I974, at I, col. 3. The
best single article on Kissinger's role in American covert activity generally, as well as in Chile, is
Szulc, How Kissinger Runs Our "Other Government," NEW YORK MAGAZINE, Sept. 30, I974, at 59.
See also Szulc, Where President Ford Is Wrong, THE NEW REPUBLIC, Sept. 28, I974, at I3.

II85

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 ii86 STANFORD LAW REVIEW [Vol. 27: Page I I85

law and the normative evaluation of political activi

book to be reviewed, the Kalb brothers' study of H
portant primarily because in its ignoring of legal i
this relationship in any meaningful way. This failur
by which we might both describe and evaluate Kiss
for such a fundamental failure deserve exploration
The volume by Abram Chayes,5 on the other han
trates on the alleged fidelity to law of the Kennedy
the Cuban Missile Crisis of October I962. The probl
whether such legal fidelity cannot itself become th
The question is of no small import, for ultimately i
what it might mean to live under a "government o
and whether such a life, even if possible, would in f

A legend in half a decade, [Henry Kissinger] has been described as, among other
things, the "second most powerful man in the world," "conscience of the Adminis-
tration," "official apologist," "compassionate hawk," "vigilant dove," "Dr. Strange-
love," "household word," "the playboy of the Western Wing," "Nixon's Metter-
nich," "Nixon's secret agent," "the Professident of the United States," "Jackie
Onassis of the Nixon Administration," "Nobel warrior," "Mideast cyclone," "re-
luctant wiretapper," and "Secretary of the world" ....6

This introductory sentence in its own way exemplifies what is wrong

with this study, by two experienced reporters of foreign affairs, of Henry
Kissinger. It is breathless and evokes a sense of awe that any one man
could have been described in so many different ways; it appears to treat
each description as equally serious and important; and, insofar as it sug-
gests that Kissinger is indeed a complex man, it offers no clue as to the
Kalbs' resolution of the seeming contradictions suggested by the various
descriptions. The Kalbs' approach to their subject appears to involve a maxi-
mal listing of "facts," in the sense of delineating Kissinger's various activi-
ties since i969, coupled with a minimal amount of analysis or independent
assessment.7

3. M. KALB & B. KALB, KISSINGER (I974) [hereinafter cited as M. & B. KALB].

4. This approach, of course, raises the classical problem of book reviewing, which ought
properly to focus on what the author does write about, rather than on what he leaves out. Yet as
Sherlock Holmes once pointed out, the failure of a dog to bark can be every bit as meaningful as the
most anguished howl. When the subject ignored is as fundamental to an assessment of Kissinger as,
I hope, this Review demonstrates, then it is fair, I believe, to discuss that subject even though the
Kalbs chose to ignore it.
5. A CmAYEs, TH CUBAN MISSILE CRISIS (I 974) [hereinafter cited as A. CHAYES].
6. M. & B. KALB at 3.
7. Even at this level, h
disclosed to them, M. &

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 April I975] LAW AND POLITICAL ACTIVITY II87

Although their book has been termed "uncrit

it might more accurately be described as lackin
praise or blame. By reading between certain lin
the basis of praise for some of Kissinger's accom
support some quite devastating analyses which t
For example, the Kalbs indicate, through a serie
fundamental foreign policy decisions involving
that the United States may well be more autocrat
is the Soviet Union or North Vietnam.9 It is impossible to describe as
"fawning" a book which suggests such an argument, even by implication,
but it is necessary to criticize the authors for not confronting more directly
the implications of some of their own observations. Although the book is a
decent summary of the major foreign policy events between I969 and early
1974,1O it is disappointing that men as intelligent as the Kalbs settled for
such a limited effort.
A very different implication might be drawn from the list quoted at the
head of this section, however. That collection of terms nowhere includes
a possible designation of Henry Kissinger as "a war criminal," nor is such
a possibility suggested at any later point in the book."1 In ignoring this
possibility the Kalbs are, of course, in excellent company. The issue of war
criminality during the Vietnam conflict has remained thoroughly marginal
in the consciousness not only of the general public but even of the legal
community that might otherwise be expected to care about fidelity to law.
With almost no exception, raising the question of the potential criminality
of our political and military leadership during the Vietnam War has led
to the identification of the questioner as a "leftist" rather than as a person
genuinely concerned with legality.12
Yom Kippur War, id. at 450-99, with Luttwak & Laquer, Kissinger and the Yom Kippur War, COM-
MENTARY, Sept. 1974, at 33. The latter portrays Kissinger in a far more duplicitous light than does
the Kalbs' account. Neither in the present instance nor concerning other events do the Kalbs explain
why they adopted one understanding of an event over another. This problem becomes of special
import since they themselves note that Kissinger sometimes prefers to dissemble and generate false
impressions on the part of those observing him. See, e.g., M. & B. KALB at 146, 149-50. Kissinger
realized that the Kalbs' book would be widely read by those seeking insight into his policies, so the
question arises whether there is any necessary reason to believe that he was telling them the truth.
8. Steel, All About Henry, N.Y. REV. BOOKS, Sept. 19, 1974, at 29.
9. The Kalbs portray the leaderships of both the U.S.S.R. and North Vietnam as having to
ratify their policy decisions with their respective Politburos, whereas they describe the decisions for
the United States as having been made unilaterally by Nixon and Kissinger, with the role of the
American Cabinet reduced to that of "a Stalinist Politburo, a meek and frightened group of courtiers
willing to rubberstamp any of the leader's decisions so long as they retained his grace." M. & B. KALB
at 304. See id. at 324, 401.
10. But see note 7 stupra.
ii. Nor is there any serious discussion of allegations made concerning Kissinger's involvement
in what has come to be known generically as Watergate. The Kalbs do not mention, for example,
that Kissinger's ex-aide Morton Halperin is suing the Secretary of State, alleging his responsibility
for illegal wiretapping to which Halperin was subjected.
I 2. The principal, if not indeed the only, exception to this generalization is probably Professor

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ii88 STANFORD LAW REVIEW [Vol. 27: Page I I85

Yet, it is impossible to engage in an assessment of Hen

out coming to terms with the issue of war criminality
and legalistic definition, for evidence exists indicating, a
a prima facie case of war criminality can be maint
Article 6(b) of the Charter of the International Military
World War II defined "war crimes" as
violations of the laws or customs of war. Such violations sh
limited to, murder, ill-treatment, or deportation to slave l
purpose of civilian population of or in occupied territory, mu
of prisoners of war or persons on the seas, killing of hosta
or private property, wanton destruction of cities, towns or v
not justified by military necessity.14

There can be no doubt that the bombing of Hano

raises in a serious and legitimate manner the possib
Henry Kissinger fall within the scope of article 6(b). T
the rationale for that decision to bomb as follows: "He
States was being squeezed by both Hanoi and Saigon
way to break out of the pattern was to bomb the nort
with an ultimatum [concerning a cease-fire arrange
in a much more comprehensive review than that of the
activities during the negotiation of the Vietnam cease-f
vincingly shows that the primary reason for the bom
garner the consent of South Vietnam's President Thieu
for Thieu had vetoed the agreement negotiated by Kis
ber 1972.16 Not only was Thieu presumably mollified
visited upon his hated enemy, which would now pr
relative to his own South Vietnamese army, but he co
fort from the massive ingathering of military equipm
United States between October and January. Kissinger
Telford Taylor, whose volume NUREMBERCG AND VIETNAM: AN AMERICA
the serious probability of the criminality of at least certain aspects of t
Taylor's cautious and moderate book can hardly be said to have had any
community, including that portion of the community ensconced in law sch
I3. By concentrating on the bombing of Hanoi in the discussion to f
indicate any belief as to Kissinger's lack of culpability concerning othe
behavior in Vietnam, but only that the bombing is the most clearcut case.
I4. INTERNATIONAL MILITARY TRIBUNAL CHARTER art. 6(b), in Proc
MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIB
added).
I5. M. & B. KALB at 4I5. It was, of course, President Nixon who actually ordered the bombing;
Kissinger, however, supported the decision: "But once his reservations, never seriously or persistently
pressed, were overridden by the President, Kissinger stepped fully into line." Id. at 4I4-I5 (emphasis
added). However, as I have shown elsewhere in regard to the Nuremberg precedents, Kissinger's ab-
sence from the formal chain of command insofar as the giving of orders is concerned does not exempt
him from liability, given the centrality of his position as a staff assistant to the President. See Levin-
son, Responsibility for Crimes of War, 2 PHIL. & PUB. AFFAIRS 244, 259-60 (I973), reprinted in WAR
AND MORAL RESPONSIBILITY 104 (M. Cohen, T. Nagel & T. Scanlon eds. I974).
i6. Szulc, Behind the Vietnam Cease-Fire Agreement, I5 FOREIGN POLICY 2I (I974).

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April 1975] LAW AND POLITICAL ACTIVITY 1189

the embarrassing necessity, therefore, of induc

accept an agreement that Thieu wished desperately
keep the United States engaged in a military effo
tory rather than accept the compromise agreed to
true that, after Kissinger reneged on the apparen
the North Vietnamese reintroduced certain topics
in the earlier negotiations, the very fact that the
basically similar to what they had already accepte
plausible any claim that the bombing was "nece
Vietnamese to agree."7 Instead the murderous as
signed to induce Thieu to sign the Paris Agreem
'brutalizing' of the north."18
Even Professor Joseph Bishop of Yale, an oppo
impute criminal liability to United States conduct i
United States leadership is under a duty to "refra
serves no military purpose or which bears no reas
military end in view. This is, of course, the declar
States and its allies, who assert that the Geneva Co
cable to the war in Vietnam."20 It would be a wholl
of the concept of "military necessity" to tolera
because it might have been "necessary" in order to
of the United States to sign a cease-fire agreement.
to the charge of war criminality in regard to the b
inconceivable that one could deny that at least a p
established that Kissinger is a war criminal.
To understand the widespread disregard, includi
of the issue of Kissinger's possible status as a war c

I7. See M. & B. KALB at 42I-22. The Kalbs typically do not prese
the reality of the situation. They do, however, include the following
who believe that it was not the bombing that brought Hanoi back
ness to sign an agreement that had essentially been outlined in Oc
in reviewing that crucial period, 'we were in an embarrassing situa
sign in January what we wouldn't in October? We had to do somethin
to create the image of a defeated enemy crawling back to the peac
by the U.S. Maybe the bombing had some effect-there are differi
B-52s weren't critical, although the Administration has been able
i 8. Szulc, supra note i6, at 67.
I9. See Bishop, The Question of War Crimes, COMMENTARY, De
20. Bishop, Book Review, II9 U. PA. L. REV. 900, 902 (I97I).
2I. Daniel Ellsberg has suggested an explanation different from
panying notes 26-30 infra, for the failure to examine closely some of
singer's activity: "I think Kissinger played one indispensible [sic] r
they dumb? Are they stupid? . . . [W]hat I learned in the Pentag
as he has to be to keep his job. The highest plum that any reporter ca
Kissinger, the ability to have a private conversation with Henry Ki
twice if you use it the first time to talk about what a conniver, fo
Kissinger is." Ellsberg, Haiphong, Kissinger, and William Colby,
at 3, col. I. See also Wenner, The Rolling Stone Interview: Dan Ellsbe
at 34. On the general subject of Kissinger and the news media, see

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II90 STANFORD LAW REVIEW [Vol. 27: Page I I85

to examine briefly the nature of positivism as

(and popular) ideology.
Even by the I830's Alexis de Tocqueville ar
political question arises in the United States th
later, into a judicial question."22 What is import
ville did not say that political questions were tr
ones, but rather that they became judicial one
decide.23 By I89o Oliver Wendell Holmes co
understanding of law in his famous definiti
what the courts will do in fact, and nothing
Holmes' definition has been subjected to devasta
is irrelevant, for the practical result of the tr
on courts is to define as "law" only that which
enforce. For courts to decline jurisdiction is of
a question as "political."
The principal result of the "passive virtues,"2"
sanctity of "law" from the consideration of ce
United States Supreme Court systematically re
Media: A Separate Peace, COLUM. JOURNALISM REV., May-Ju
discount completely such an uncharitable interpretation, Ellsb
overwhelming silence of persons whose jobs do not depend on
such as, for example, academic lawyers.
The explanation that accusing national leadership of war crim
(and thus unacceptable) is also unconvincing. The risks of suc
it first became clear that there was substantial reason to beli
the law and the impeachment inquiry had begun, for it was reco
tion of constitutionalism would be profoundly threatened wer
allegiance to a President. By the end, of course, national divi
established in the minds of all but the blindly idolatrous that Ni
criminal law regarding obstruction of justice. The relevant
Nixon deserved impeachment, but, instead, "'I]s it not rather cur
of Watergate and not the unspeakable horrors of Vietnam
of impeachment?" S. SCHEINGOLD, THE POLITICS OF RIGHTS: LAW
CHANGE 52 (I974). An accurate interpretation of the decision
during its consideration of impeachment is that the comm
impeachable offense. The Committee refused to recommen
bombing of Cambodia, and even there the proponents of imp
of domestic law or domestic understandings of executive p
President's violation of international law in his direction of the
22. I A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 290 (V
23. Were his observation that political questions become
logically follow that legislatures, in resolving them, would us
entailed that courts decide legal questions. See, e.g., Brest, A C
stitutional Interpretation, 27 STAN. L. REV. 585 (975).
24. O.W. HOLMES, The Path of the Law, in COLLECTED LEG
25. See, e.g., H.L.A. HART, THE CONCEPT OF LAW 132-.36
Hart criticizes is Holmes' court-centeredness and not legal po
self a legal positivist, but for him the sources of positive law
should emphasize that my own position does not reject legal p
morality distinction that is central to positivism. What I do reje
or tacit, of morality to law that is often empirically linked t
legal positivism. (I am grateful to Robert Nozick for suggestin
point.)
26. See Bickel, The Supreme Court, 1960 Term-Foreword: The Passive Virtues, 75 HARV. L.
REV. 40 (I96I).

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 April I975] LAW AND POLITICAL ACTIVITY II9I

of the Vietnam War to legal analysis.27 One r

make any subsequent discussion of "law" and
legitimacy, for if "law" is only what courts
no basis on which to state that Henry Kissing
else (including possibly William Calley)28 is a
say is that one disagrees with their activities
grounds, but such grounds do not carry with
inality," a peculiarly legal notion.
To talk about the "legal" status of Henry K
is implicitly to reject the constraining positiv
largely accepted by American legal thought.
have an existence independent of the willingness of a court to enforce
them.29 Only then can we question the refusal of courts to enforce the
"law" when they decline to deal with the question of war criminality.
Holmes' definition, on the other hand, is profoundly protective of courts
insofar as it makes this last question a logical impossibility.
For the Kalbs to consider the question of Kissinger's potential crim-
inality, then, would be remarkable, at least from the positivist perspective
offered above, for they would have to transcend one of the most basic
underpinnings of American legal thought. The pervasiveness of positivism
also explains the silence of even most of the academic legal community,
for it too is committed to the court-oriented definition of law that ensures
silence as to those questions that courts refuse to consider.
It is at this point, however, that one must ask the fundamental questions
underlying this review: What difference does it make if we decide that
Kissinger is indeed a war criminal? Is it possible for a "war criminal" to be,
at the same time, a morally admirable individual ?3" Is there any necessary
connection between fidelity to law and positive moral assessment? The
second book under review might affect the answer to these questions.

II

Abram Chayes, Professor of Law at Harvard, has written a remarkable

io6-page essay examining the role of law during the Cuban Missile Crisis,

27. See the remarkable exchange between Justices Marshall and Douglas in Holtzman v. Schles-
inger, 414 U.S. 1304 (I973). See also Sarnoff v. Schultz, 409 U.S. 929 (I972); DaCosta v. Laird,
405 U.S. 979 (I972); Massachusetts v. Laird, 400 U.S. 886 (1970); McArthur v. Clifford, 393 U.S.
IQ02 (I968); Hart v. United States, 391 U.S. 956 (I968); Mora v. McNamara, 389 U.S. 934 (I967);
Mitchell v. United States, 386 U.S. 972 (i967).
28. See Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974).
29. The primary source of the rules, of course, would be the Nuremberg trials themselves as
well as specific treaties entered into by the United States. See M. GREENSPAN, THE MODERN LAW oF
LAND WARFARE (I959). See also Bishop, supra note I9.
30. I have previously raised this question in Levinson, supra note I5, at 248 n.io, but did not
there attempt to answer it.

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II92 STANFORD LAW REVIEW [Vol. 27: Page I I85

when President Kennedy and his advisors decided to blo

tine") Cuba to prevent the further introduction of Sov
into that country. Despite several flaws, the book is a tho
and provocative essay that brims with questions. It deser
ership.
At the time of the October I962 crisis Chayes was Legal Advisor to the
Department of State. From that perspective he examines the role that inter-
national law played in the decisions of the Kennedy Administration during
that period. Graham Allison's Essence of Decision,3" which has generally
been accepted as the definitive account of American policymaking during
the crisis, has, as Chayes notes,32 no index entry for "law," and it has not
heretofore been seriously argued that legal considerations played any great
role in the decisionmaking process or, indeed, in the policy that was chosen.
Chayes, however, argues that the event was saturated with legal consider-
ations and cannot be understood in the absence of those considerations. He
is not arguing that they "determined" the decisions; his argument is more
modest:
I do not base a claim for the role of law on the congruence of the final decision
with the lawyers' advice. It is no more possible to demonstrate "proximate" causa-
tion here than in any other human process. The weight and consequence of legal
advice in the final decision, like the weight and consequence of military judgment
or Kennedy's machismo or the bureaucratic rigidity of the Air Force are, and must
remain, unknowable.33

He therefore adopts Allison's view of the complex nature of the decision-

making process, by which final policies are less the "decisions" of one man
(that is, the President) than the result of a number of factors, including the
organizational patterns within the government and the bureaucratic and
personal infighting among the actors at the table of advisors.34 Chayes
simply wishes to amend Allison's analysis by adding the legal component.
Chayes attempts to demonstrate that law (and lawyers) affected the
outcome in three ways: "First, as a constraint on action; second, as the basis
of justification or legitimation for action; and third, as providing organiza-
tional structures, procedures, and forums."35
As to the first, Chayes argues that one reason for the choice of the
"moderate" quarantine rather than the more bellicose policies advocated
by Dean Acheson and the Joint Chiefs of Staff was the perception that the
3I. G. ALLISON, ESSENCE OF DECISION: EXPLAINING THE CUBAN MISSILE CRISIS (I97I).
32. A. CHAYES at 6.
33. Id.ats.
34. Id. at IOI. It is, incidentally, an added failing of the Kalbs' book, that it does no
count of Allison's very influential model and indicate to what extent Kissinger's experi
dates or challenges it. As indicated in note 9 supra, they present a decidedly autocratic pictu
United States government, but it is not clear how intentional this presentation is.
35- A. CHAYES at 7.

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 April I975] LAW AND POLITICAL ACTIVITY II93

former would be legal under international law w

ing such suggestions as invasions and "surgical
Chayes candidly recognizes that "perhaps most"
the quarantine was legal ;"7 he argues only that th
on the part of American officials that their actio
legality and that the quest for this imprimatur pl
ing the decisionmaking. Indeed, in a rather cu
asserts that the famous statement of Robert Ken
going to be the Tojo of the ig60's"38-usually i
forward moral proposition directed at the hawkish
stood as a symbol of devotion to international law
insists, served as a real constraint on the policym
Second, the law is said to have played a role in
by serving as the legitimizer of the policies adop
of the quarantine, the United States pointed to t
antine policy by the Western Hemisphere coun
of course) under the aegis of the Rio Treaty a
American States. The fact that such legal justific
policy were offered at the instant of decision he
public support; in contrast Professor Chayes poin
such attempt at legal justification at the time of
in May I970 and the way in which that absenc
ground of attack on the propriety of that action.
The very ability to refer matters to the Organi
and to the United Nations exemplifies Chayes' thi
the Cuban Missile Crisis, for in that situation in
not only organizing concepts, but, just as importa
selves-fora in which the dispute could be pres
munity for consideration.
Assuming for purposes of discussion that law p
role in structuring the decision that was mad

36. Id. at 39-40.

37. Id. at 48. See also id. at 35-36, where Chayes quotes extensively from Professor Quincy
Wright's attack on the legality of the quarantine, Wright, The Cuban Quarantine, I963 PROCEEDINGS
AM. Soc. INT'L L. 9. Indeed, an Appendix to Chayes' own book reprints a Comment by Professor
Louis Henkin that is critical of Chayes' own legal argument. A. CHAYES at I49-54.
38. Id. at 38, citing E. ABEL, THE MISSILE CRISIS 64 (I966).
39. "But it is hard to believe that men as familiar as these with the law in general and the
specific international-law context of the situation before them could have been unaware or even un-
mindful of the legal overtones of the moral proposition." A. CHAYES at 39-40. One problem with em-
phasizing such legal sensitivity, as Chayes does, is that he would apparently have some difficulty ex-
plaining why one of the most bellicose participants was Dean Acheson, one of the senior partners of
Covington and Burling and a man of impeccable legal training.
4o. Id. at 42. He goes on to state, "It was rightly taken as presumptive evidence that legal con-
siderations had not been adequately reviewed and that legal advice had not been adequately con-
sulted." Id. (emphasis in original).

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II94 STANFORD LAW REVIEW [Vol. 27: Page I I85

policy was legal under international law, Chayes' argum

beside the point. The most fundamental fact about the
is President Kennedy's estimation that the risk of nuc
from an American decision to resist the introduction
and to demand the removal of those already in place w
50 percent.4' Moreover, Secretary of Defense Robert
as others at the time and since, admitted that the plac
Cuba would not in any serious sense have threatened
security against Soviet attack.42 Chayes notes these
oddly: "Certainly it is difficult for the international lawye
clusion that they add up to a 'vital interest' sufficient t
of an absolute exemption from constraints and met
law."43 Chayes' argument appears to suggest that since
acted within the law in quarantining Cuba, even tho
believed to have subjected the nation to a one-third to
nuclear holocaust, the choice of policies was necessarily
tempted, borrowing from C. Wright Mills, to refer to
legalism.""4
Nevertheless, Chayes is in the great tradition of American law when
he ignores the relevance of moral questions in favor of analyzing only the
legality of an action. Would he really expect a survivor of a nuclear ex-
change to exclaim, after surveying the carnage, "But at least it was legal"?
And can it really be the only duty of the lawyer to counsel as to legality,
without paying any attention to the moral implications of the course
chosen? Even though it is undoubtedly true that a lawyer has no special
insight into moral norms, it is equally true that there is no exemption
from the contemplation of the morality of one's involvements. The role
Chayes ultimately casts for the lawyer through his singular emphasis on
legality is indecent, unless one makes the assumption, negated by the his-
tory of the 20th century, that a necessary connection exists between legality
and morality.
A full examination of the reasons why American lawyers (and law
professors) feel more comfortable discussing "law" than "morality" is far
beyond the scope of this Review, but that preference is surely connected
with the positivism referred to above,45 by which "morality" is treated as
41. G. ALLISON, supra note 3I, at I, citing T. SORENSEN, KENNEDY 705 (I965). Chayes cites
this assessment of risk, A. CIAYEs at 3, as well as Allison's further observation that "it is difficult to
believe that the President actually felt that the chance of war was one-in-three." Id. n.i 3, citing
G. ALLISON, supra at 2I8. Neither Allison nor Chayes offers any reason whatsoever why President
Kennedy would dissemble to those closest to him during such an awesome situation.
42. A. CiHAs at 3. The argument in the text that follows would not change substantially were it
shown that the Cuban missiles had compromised United States security interests.
43. Id. (emphasis added).
44. See C.W. MILLs, THE CAUSES OF WORLD WAR III 81-9o (1958).
45. See text accompanying notes 22-30 supra.

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April I975] LAW AND POLITICAL ACTIVITY II95

subject to unending, fruitless controversy over what

matters of individual value judgment, whereas "law
objective definition, especially if there are courts to pr
However superficially appealing, the separation of leg
ultimately challenges the moral basis of the "rule
attempts to uphold.47
We have been treated, in the past several months,
the "rule of law" as the central meaning of constitut
deed, violation of this principle and the concomitant
men" are said to have caused the ultimate destruction o
However pleased we might be by the demise of that r
advised to examine a bit more closely the implication
The front pediment of Langdell Hall of the Har
cludes the statement, in Latin, "Not Under Man, Bu
Law."49 What is not generally recognized, however
attributed to the English medieval lawyer Bracton
thoroughly displaced view of the world-a view incorp
a "natural order," knowledge of which was available t
tion of which would be universally recognized. From
"rule of law" would indeed be something to cherish a
highly fallible men.
There is, however, no relationship between the med
Bracton and the more modern one exemplified, for
and Frankfurter.50 To begin with, neither believed in
46. For an illuminating discussion of these ideas, see R. UNGER, KNOWL
coming 1975).
47. See Fain, Some Moral Infirmities of justice, in INDIVIDUAL AND CO
MASSACRE AT MY LAI 17 (P. French ed. 1972), for a stimulating treatm
illegality and immorality in the case of Lieutenant Calley and My Lai.
48. See, e.g., Lewis, Watergate Aftermath, N.Y. Times, Nov. 28, 1
plicit criticism of Mr. Lewis that follows should not be construed as a
his invaluable columns, which demonstrate his uncommon devotion to
that Mr. Lewis is almost alone within the "established" press in suggesting
to answer before the bar of international law for his activities regarding
N.Y. Times, Dec. i9, 1974, at 45, col. 5.
49. "Non Sub Homine, Sed Sub Deo Et Lege."
50. One suspects that anachronism is present in the speech the playw
the mouth of Sir Thomas More in A Man for All Seasons, quoted in Le
N.Y. Times, Nov. 28, 1974, at 33, col. 5, col. 6: "I know what's legal
stick to what's legal. . . . I'm not God. The currents and eddies of right
such plain sailing, I can't navigate, . . . but in the thickets of the law, o
difficult to believe that the Catholic More, however avant-garde he may h
skeptic that this speech implies.
A different example of conceptual confusion on a similar point is p
IO Republican members of the House Judiciary Committee concerning
impeachment based on Mr. Nixon's abuse of power. These members arg
article (which they supported) charging complicity in obstruction o
violation of criminal law, there is no law specifically prohibiting "a
argued, impeachment ought not to be based on activity not itself in vio
ask the pathetic question, "Have we slipped so far since the Eighteenth Cen
rely on our laws to tell us what is right and wrong?" And on the follow
Congress may remove an elected President for conduct which is violat

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I196 STANFORD LAW REVIEW [Vol. 27: Page II85

of Bracton's conception.51 To Holmes, of course, la

than predictions of what the courts would do. Holme
reason why the rulings of courts ought to be resp
explicit that they have little or nothing to do with ju
Justice Frankfurter also gives one surprisingly litt
"the rule of law":5 "Much that should be rejected
repressive and envenoming, may well be not unconst
summarizes his vision of the role of courts by statin
abstain from confounding policy with constitutionalit
humility as well as self-restraint in not declaring unc
a judge's private judgment is deemed unwise and even
last remark is drawn from a conceptual universe who
that of Bracton, for the universal recognition of wh
been replaced by "private judgment" in a world of
endlessly conflicting visions of the public good, and
includes at least the possibility (and for Frankfurter
merely in its view 'improper,' and if the Congress refuses to consider wh
or 'improper' in the past, but will address only the question of what
subjective view of a temporary majority of legislators, we will have tr
new Articles of Confederation." HousE COMM. ON THE JUDICIARY, IM
NIXON PRESIDENT OF THE UNITED STATES, H.R. REP. No. i305, 93d C
(emphasis added).
The answer to their question is that in fact we have "slipped so far" from the i8th-century un-
derstanding of the relationship between law and morals. See Horwitz, The Emergence of an In
strumental Conception of American Law, 1780-1820, in 5 PERSPECTIVES IN AMERICAN HISTORY 28
(D. Fleming & B. Bailyn eds. I97I). Indeed, one sign of how far we have slipped is the implication
contained in their second argument that there are no standards of what is "proper" or "improper"
that transcend mere "subjective" opinion. Recourse to law is thus seen as adherence to "obiective"
standards (of right and wrong, no less) while anything else is a descent into raw subjectivity.
5I. This point is, of course, obvious, but this is one of those situations where we take in-
sufficient notice of what strikes our modern consciousness as unworthy of special mention. Bracto
spoke of man being under God and the law; the two were intimately connected. We must remembe
that well into the I7th century, the fundamental underpinning of political authority was that de-
lineated by Saint Paul: "Every person must submit to the supreme authorities. There is no authorit
but by act of God, and the existing authorities are instituted by him; consequently anyone who rebels
against authority is resisting a divine institution, and those who so resist have themselves to thank
for the punishment they will receive." Romans i3: I-3 (New English Bible). Law was defined by
these authorities or was the product of natural reason given to man by God (and there was not ye
general acceptance of the view that there could be opposition between natural reason and the com-
mands of authorities). In either case it was impossible to analyze the notion of fidelity to law without
also analyzing the concomitant notion of fidelity to God. Perhaps the principal historical task of
liberal political thought is to provide a justification of obedience to the State (and to its law) inde-
pendent of religion, i.e., under circumstances by which law is divorced from religiously grounde
conceptions of morals. See R. UNGER, supra note 46. For Holmes' view of God, see E. WILSON
PATRIOTIC GORE 747 (I962); for Frankfurter's, see F. FRANKFURTER, FELIX FRANKFURTER REMINISCES
338 (1962).
52. "I have said to my brethren many times," Holmes once wrote the Chinese jurist John Wu,
"that I hate justice, which means that I know if a man begins to talk about that, for one reason or
another he is shirking thinking in legal terms." Letter from Oliver W. Holmes, Jr., to John Wu,
July i, I929, in THE MIND AND FAITH OF JUSTICE HOLMES 435 (M. Lerner ed. I943).
53. It may be interesting to note that Professor Chayes clerked for Justice Frankfurter.
54. Dennis v. United States, 34I U.S. 494, 556 (95I) (Frankfurter, J., concurring). Indeed,
one of Frankfurter's more caustic critics has argued that, under Frankfurter's philosophy, "the
function of the Court is not to restrain Congress, but only to legitimize its acts by providing ra-
tionalizations which allow them to be fitted into the Constitution." J. SHKLAR, LEGALISM 2I6 (I964).
55. Dennis v. United States, 341 U.S. 494, 552 (I95) (Frankfurter, J., concurring) (emphasis
added).

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 April I975] LAW AND POLITICAL ACTIVITY II97

States surely the actuality) of the rule of "repre

wise and even dangerous" laws. The substantiv
Bracton's concept of "law" has vanished, and th
cayed into pure proceduralism. Frankfurter is no
law as classically understood but instead the ru
through the form of positive legal commands. Wh
rule is simply not the same thing as the rule of
had noted that, if lawyers "prize freedom much,
ity still more: they are less afraid of tyranny tha
provided the legislature undertakes of itself to d
pendence, they are not dissatisfied."56
It is impossible to understand why these concept
including ultimately the possibility of tyranny, ar
our respect. It is difficult to believe that the rec
of law" would be quite so partisan were the to
obligation of federal and state officials to enforc
during the I85o's.5
That conformity to law does not guarantee a
of course, not a new insight. Indeed, the very
prudence is the separation of law and morality s
that minimum of public order necessary to all
moral visions. Whatever one may think of th
jurisprudence in enhancing private liberty, there
doubt that the contemporary American version o
undermines the basis of respect traditionally a
relative to "rule of men." For now the questio
which men.
Clearly, therefore, the determination that an a
in itself carry much weight in determining the
It is time to return, then, to the other side of t
mination that an action is "illegal" carry any mo
Richard Wasserstrom has pointed out that at lea
of and refusal to serve in the Vietnam War on
56. I A. DE TOCQUEVILLE, supra note 22, at 285, quoted in J. SH
fessor Shklar's vigorous critique of legalism initially suggested so
Review.
57. See C. SWISHER, 5 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE TANEY
PERIOD, I836-64, ch. 26 (I974).
58. It is not very helpful to ask whether or not one has a prima facie duty to obey the law
(so that, prima facie, we think ill of someone who disobeys the law), for even those advocating
prima facie duties agree that they can be overcome; the person disobeying the law simply has the
burden of justifying disobedience. I can therefore grant, arguendo, the existence of a prima facie
duty to obey the law, but then the argument shifts to consideration of factors which justify diso-
bedience. See NoMos XIII: POLITICAL AND LEGAL OBLIGATION (J. Pennock & J. Chapman eds. 1970),
particularly Ladd, Legal and Moral Obligation, at 3, and Gewirth, Obligation: Political, Legal, Moral,
at 55; Levinson, Book Review, 15 MIDWEST J. POL. SCI. 625 (1971).

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II98 STANFORD LAW REVIEW [Vol. 27: Page I I85

illegality took place in what might be termed intellectu

That is, opponents who properly objected to the war on
"pretended" that their ground was legal. As Wasserstrom n
sons would not have withdrawn their opposition had th
been demonstrated.
What this point demonstrates is that both supporters of
policy-like Chayes-and opponents are delighted to use l
as counters in the game of propagandistic thrust and parry
is willing to admit that the legal categories are, if not irr
least tied to other, perhaps more important, modes of analy
One reason why the epithet "war criminal" carries su
unarticulated assumption that, in the laws of war if no
disjunction of law and morality discussed earlier has not y
that legal categories are coextensive with moral ones. Even
a somewhat greater overlap of such categories exists in th
it is nevertheless true that there is sufficient lack of iden
pause.60 At the very least, it is questionable, for example, t
laws of war prohibit such conduct as the saturation bom
cities, provided that some plausible link to "military n
established.61 Moreover, it is possible to conceive of certain
laws of war which, though technically "criminal," would n
actor to moral opprobrium.62

59. Wasserstrom, The Relevance of Nuremberg, I PHIL. & PUB. AFFAIRS 22

M. Cohen, T. Nagel & T. Scanlon eds., supra note I5. For a critical analysis of
tion, see Cohen, Morality and the Laws of War, in PHILOSOPHY, MORALITY, AND
FAIRS 7I (V. Held, S. Morgenbesser & T. Nagel eds. I974). An earlier version o
was published as a review of T. TAYLOR, supra note I2. Cohen, Taylor's Co
of War (Book Review), 8o YALE L.J. I492 (I97I).
6o. See Wasserstrom, The Laws of War, 56 MONIST I (I972), criticized by
S. Morgenbesser & T. Nagel eds., supra note 59. See also Sherman, A Special K
Review), 84 YALE L.J. 373, 390-93 (I974).
6i. See T. TAYLOR, supra note I2, at I40-45. See also Taylor, Defining War Crimes, N.Y.
Times, Jan. II, I973, at 39, col. 3, referring specifically to the bombing of Hanoi.
62. Perhaps the best example is Winston Churchill's suggestion, made to the British Cabinet in
December I939, that the British, among other things, mine Norway's territorial waters in an effort
to prevent the unimpeded shipment of iron ore from the Norwegian port of Narvik to Germany. He
admitted that his suggestions entailed a "technical infringement of international law," but proceeded
to make the following argument: "The final tribunal is our own conscience. We are fighting to re-
establish the reign of law and to protect the liberties of small countries. Our defeat would mean an
age of barbaric violence, and would be fatal, not only to ourselves, but to the independent life of
every small country in Europe. Acting in the name of the Covenant, and as virtual mandatories of
the League and all it stands for, we have a right, and indeed are bound in duty, to abrogate for a
space some of the conventions of the very laws we seek to consolidate and reaffirm. Small nations must
not tie our hands when we are fighting for their rights and freedom. The letter of the law must not
in supreme emergency obstruct those who are charged with its protection and enforcement. It would
not be right or rational that the aggressor Power should gain one set of advantages by tearing up all
laws, and another set by sheltering behind the innate respect for law of its opponents. Humanity,
rather than legality, must be our guide.
"Of all this history must be the judge. We now face events." W. CHURCHILL, Tim GATHERING
STORM 488 (Bantam ed. I96I). Cf. Statement of Abraham Lincoln concerning suspension of habeas
corpus: "Are all the laws but one to go unexecuted, and the Government itself to go to pieces, lest that
one be violated?," quoted in J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN I22 (1951);

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April I975] LAW AND POLITICAL ACTIVITY ii99

If the argument above is correct, then we m

of Henry Kissinger's putative criminality with
for it is now clear that what lies at the ro
to Kissinger's activities is not that they were
they were immoral and, indeed, barbaric.

III

Legalism, like its parent liberalism, at le

context, is an attempt to escape history throu
rules.63 Henry Kissinger has in fact written e
The statesman lives in time; his test is the perma
stress. The prophet lives in eternity which, by def
sion; his test is inherent in his vision. The encou
tragic, because the statesman must strive to redu
measures, while the prophet will judge the tempo
standards. To the statesman, the prophet represen
of absolute justice is a denial of nuance.64

Elsewhere in that same study, he defined

"prophet" and "statesman" as that "between t
the need to survive in it."65 His argument,
prophets, applies as well to a legalist approach
too, "nuance"~ can be denied in the name not
binding law.
It is ironic, given Kissinger's reputation for
ment operates as an attack on legalism; indeed
with the word "lawyer" in the passage abov

Castro, History Will Absolve Me, in REVOLUTIONARY STRU

I972) (speech to Cuban court following Castro's conviction fo
regime).
In fact the British Cabinet rejected Churchill's suggestion, at least partly because of its illegality.
(This episode, incidentally, corroborates Chayes' thesis that international law indeed does sometimes
act as a constraint on a government's choices.) Yet it is difficult to believe that we ought to condemn
Churchill for suggesting the commission of a "war crime," especially if the sole transgression had
been the mining. (It should be pointed out, however, that Churchill also wanted to seize Narvik
militarily, in addition to mining, a position that raises more difficult problems of evaluation.)
I owe the Churchill example to Professor Michael Walzer. See also Walzer, Political Action: The
Problem of Dirty Hands, 2 PHIL. & PUB. AFFAIRS (I973), Walzer, World War II: Why Was This
War Diferent?, I PML. & PuB. AFFAIRS 3 (I97I), both reprinted in M. Cohen, T. Nagel & T. Scan-
lon eds., supra note i5. I have profited greatly from discussions with Professor Walzer about prob-
lems presented by the notion of crimes of war.
63. It is clear that the strictures against liberal legalism to be developed in the text accompanying
notes 64-73 infra apply as well to certain approaches to moral theory also characteristic of at least
one major tradition of liberalism. Thus John Rawls specifically tries to develop a theory divorced
from any rootedness in a particular society or a particular time. See J. RAWLS, A THEORY OF JUSTICE
(1971). For an excellent discussion of this point, see Grey, The First Virtue (Book Review), 25
STAN. L. REV. 236, 302-08 (1972). See also McBride, Book Review, 8i YALE L.J. 980 (I972).
64. H. KISSINGER, A WORLD RESTORED: METTERNICH, CASTLEREAGH AND THE PROBLEMS OF
PEACE I812-I 822, at I87 (1957).
65. Id. at317.

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I200 STANFORD LAW REVIEW [Vol. 27: Page i i85

like an attack by a contemporary revolutionary o

David Landau has persuasively argued that Kissing
day Hegelian who perceives himself as a world-
task of maintaining the existing political and social
Therefore, it is only fitting that he would in rea
those "left-wing Hegelians" known as commun
opponents of both. Kissinger's description of "
closer to what we, in ordinary language, term
conventional image of a cautious diplomat:
The statesman is therefore like one of the heroes in cl
vision of the future but who cannot transmit it directly
cannot validate its "truth." Nations learn only by expe
when it is too late to act. But statesmen must act as if t
experience, as if their aspiration were truth. It is for
often share the fate of prophets, that they are without ho
. . . and that their greatness is usually apparent only
intuition has become experience ....67

What joins Kissinger, Churchill, Fidel Castro, and Abraham Lincoln

is their common recognition that we live in a radically contingent, historical
world where rules do not always exist as to the dimensions of "proper"
action. One ultimately bets on an historical outcome, similar to the Pascalian
wager about the existence of God; winners become celebrated, and their
transforming (or maintaining) visions and intuitions become accepted
by the next generation as the content of "commonsense" and indeed may
be sanctified as "law."68
One cannot, therefore, assess the merit of a person without at the same
time determining one's own position relative to the visions and intuitions

66. D. LANDAU, KISSINGER: THE USES OF POWER 22, i36 (1974).

67. H. KISSINGER, supra note 64, at 329. Indeed, Kissinger states "that most great statesmen have
been either representatives of essentially conservative social structures or revolutionaries." Id.
68. One can see this occurrence within the very process of constitutional interpretation in the
United States, for decisions, whether executive or judicial, which at the time were extremely contro-
versial if not indeed arguably illegal, become accepted as binding "precedent." Thus the most per-
suasive defense of the legality of the Vietnam War in terms of the constitutional grant of the war-
making power to Congress inevitably involves mention of earlier "usurpations" that have become
accepted as legitimate presidential decisions, such as President Truman's decision to send troops to
South Korea in I950. For a critical review of such arguments, see Van Alstyne, Congress, the Presi-
dent, and the Power to Declare War: A Requiem for Vietnam, 121 U. PA. L. REV. I (1972). Examples
of Supreme Court decisions that fly in the face of "original understandings" of the Framers are legion.
One problem with arguments relying on original understandings (even assuming we know what
those understandings are) is that rarely does the person making such an argument accept the general
proposition that the Court (or the President) should act only within the parameters established by
the Founders. Thus opponents of the war eager to return to the initial understanding of the War
Power are not likely to be as eager to return to what was probably the rather conservative initial un-
derstanding of freedom of speech. See L. LEVY, LEGACY OF SUPPRESSION: FREEDOM OF SPEECH AND
PRESS IN EARLY AMERICAN HISTORY (I960). In this sense, most persons making "original understand-
ing" arguments are in "bad faith." See text accompanying note 59 stupra. For a presentation of this
problem that leaves this reader wondering whether any good faith argument is possible, see P. BREST,
PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS (forthcoming 1975).

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April I975] LAW AND POLITICAL ACTIVITY I20I

underlying that person's actions.69 Henry

indeed be a war criminal, but this fact is ulti
ment of him only because his actions in tolera
the bombing of Hanoi reveal a total callousne
norms and a seeming commitment to a wor
devoid of concern about human suffering.
his acquiscence in a brutal new Chilean milita
the same cloth.70 Kissinger has been responsi
plishments, such as the overcoming of the
of the I950's and I960's and the bringing abou
exists in the Middle East, but not unless one
possible to view him as morally admirable.

IV
Where the total, communist fearlessness with re
present, the law and its calculable consequences a
smaller) importance than any other external fact o
to reckon when deciding upon any definite course
the law should not be regarded any differently t
connection when on an important journey.7'

It is perhaps evidence of a truly Hegelian

of the President of the United States, as quote
corresponds closely with that expressed abo
philosopher Georg Luk'acs. Both views rest on
view of "law" that makes adherence to lega
attainment of given ends. President Ford disp
votion to law and order when it might confli
basic American interests. Law has been stripp
scendent moral norms and has become merely
or discarded when inconvenient.72
69. For a sensitive analysis of Kissinger in these terms, se
Kissinger's Foreign Policy, Policy Memorandum No. 39, Cen
University, July 1974. Falk, a vigorous critic of Kissinger, at
about the best that the American political system can produ
prevailing political beliefs and consciousness." Id. at 3. But cf
tary of State, ENCOUNTER, Nov. 1974, at 57.
70. See Lieber & Rothchild, Costs of Amorality: "A Political Science Lecture," HARPER'S, Jan.
1975, at 77.
71. G. LTJKACS, HISTORY AND CLASS CONSCIOUSNESS: STUDIES IN MARXIST DIALE
72. See Horwitz, supra note 50, at 287. I have benefited greatly from discussion
sor Horwitz about the implications of instrumentalism for conceptions of legalism
of law. See also R. CARO, THE POWER BROKER: ROBERT MOSES AND THE FALL OF NE
20 (1974). Caro's magnificent study of Robert Moses is extraordinarily rich in
for many of the ideas discussed in this Review. Indeed, there are some fascinating
Moses and Kissinger: Both are uncommonly intelligent men who have devoted their
and energies to the service of comprehensive, if malign, visions of social life. Each is
sitive to criticism and has used the threat of resignation, based on perceptions of his
bility, to forestall opposition. Both benefited from largely adoring treatment by t

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I202 STANFORD LAW REVIEW [Vol. 27: Page I I85

We can no longer assume, however, that the las

contains condemnatory implications. There surely
who did not support the violation of law by som
and a half, whether a draft resister, Father Be
Martin Luther King, Henry Kissinger, or Richa
jurisprudence and more general "public philoso
array. The task for the future is to confront the
and history in a way that would make books li
impossible to write.7"
thoroughly undemocratic in their methods of decisionmaking, and n
about fidelity to law.
For an interesting, if ultimately unsuccessful, attempt to resolve
by instrumentalism, see M. KADISH & S. KADISH, DISCRETION TO DI
PARTURES FROM LEGAL RULES (1973).
73. The most ambitious such confrontation is contained in the work of Professor Unger, who
has been kind enough to let me see two of his manuscripts scheduled for publication in the next 2
years. In addition to KNOWLEDGE AND POLITICS, supra note 46, he has also written a book tentatively
entitled LAW IN MODERN SocIErY: TOWARD A CRITICISM OF SOCIAL THEORY. See also E. PURCELL, THE
CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE (1973).

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