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Belmont Club

Un Belli Di

June 17th, 2011 - 8:28 pm

Jack Balkin, writing in Harvard Journal of Law and Public Policy,  described reality from a legal point of view, which is vital in understanding Libya.

In fact, one of the most interesting features of law as a system of social conventions is its ability to make things true or, to put it another way, to create legal categories that permit characterizations of situations and practices that are true or false. My point, however, is not simply that propositions of law are true in virtue of legal conventions. It is rather that law creates truth– it makes things true as a matter of law. It makes things true in the eyes of the law. And when law makes things true in its own eyes, this has important consequences in the world.

Consider, for example, the common law distinction between trespassers, licensees, and invitees. Landowners have different tort duties toward people who trespass on their property, enter their property for business reasons, or visit as invited social guests. Simply by making these distinctions, the common law makes it possible for it to be true or not true that a person is a trespasser, licensee or invitee.

So what has that got to do with Libya? This: the New York Times reports that President Obama overruled the view of two his top lawyers that the “kinetic military events in Libya” amounted to hostilities. According to the President, there is “no war” in Libya? What they are arguing about is the legal truth.

President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

What keeps the discussion from being completely academic is the existence of non-legal reality. Non-legal reality consists of the galaxies and stars, the military considerations, strategic effects,  public perceptions and the plate tectonics and planetary forces that shape our world. Thus, whether or not a “war” in Libya is legally acknowledged, in actual fact people die, international actors are drawn in, conflict may spread, munitions and money are expended — stuff happens.

This is the other reality which Balkin describes. He writes that one of the problems inherent in legal truth is that it sometimes comes into conflict with other kinds of truth.

So in this sense, law is continuously proliferating truth into the world. It is making things real. It is making things true and false. These things are not true and false from the standpoint of mathematics or natural science. Rather, they are true and false from the standpoint of law.

the proliferation of legal truth is important because law’s truth is not the only truth, and law’s vision of reality is not the only reality. Law’s power to enforce its vision of the world can clash with other practices of knowledge, and with other forms of truth.

Legal knowledge can come into conflict with these other forms of knowledge. One might ask: how is it possible that things can both be true and yet come into conflict? The answer is that things that are true from the standpoint of one set of social practices or social conventions are not necessarily true from the standpoint of another.

Balkin argues that “legal truth” can shape perceptions and sometimes lead the actual truth into becoming what the law prefers to believe for the betterment of the world. But the problem with that is misrepresenting reality by too great a margin willfully ignores real effects. It creates artificial blinkers that cause legal responses to diverge from the actual situation. Therefore the choice of a legal truth ought take into account what happens next.

If there no war, why nothing can happen next. We can all stretch out and rest, enjoy Hawaiian music and watch the waves around Diamond Head. But suppose something happens next? Why where did that come from?  Could it happen? On that test depends whether you prefer fact or fiction. The President’s chosen definition, one closer to a lie than any passable reproduction of reality, may create the possibility of unanticipated consequences. Only if you believe the probability of that is zero, could you prefer the “legal truth” to nothing but the truth.  He’s chosen a definition that will help him politically, but in no other way. The other name for President Obama’s choice of terms is a voluntary intelligence failure.

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