04 Mar Ristroph on Posner & Vermuele
Readers who enjoyed our recent symposium on Eric Posner and Adrian Vermeule’s book Terror in the Balance will definitely want to check out Alice Ristroph’s review of the book in the new issue of the Green Bag. This is no ordinary review — serious, respectful, dispassionate. Indeed, Alice’s bete noire is precisely the tendency, so prevalent in the academy, to respond to ideas as extreme as those in the book in the same measured tone that one would use to disagree with a friend. No, this is not your grandmother’s book review. The title says it all: “Professors Strangelove.”
Here is a taste:
And after comedy, there is farce. With no discernible comedic intent, a number of lawyers and law professors have reprised roles from Kubrick’s famous film. Insisting that the war on terror is too important to be left to anyone other than the President, scorning opponents of torture as sissies afraid to muss their hair, and rapidly collecting promotions and personal citations, these lawyers are teaching America to stop worrying and love the waterboard – and the wiretap, and the ethnic profiling, and the indefinite detention, and all the other strategies of our new war that might be funny if they weren’t so deadly serious.
In the academy, the distinguished professors who advocate torture, executive absolutism, and other departures from the rule of law have been met with respectful, and inconsequential, disagreement. Indeed, if law professors such as John Yoo, Eric Posner, and Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others in the legal academy are more akin to President Merkin Muffley. The balding, bespectacled Muffley is the only character in Dr. Strangelove who fully appreciates the moral implications of nuclear war, but his hesitancy and unfailing politeness render him a mostly ineffective counterweight to his war-mongering colleagues. He is the voice of reason, but that voice is timid and faltering. Today, academic counterparts to Merkin Muffley take exception to the bellicose program of the Professors Strangelove. But “debates” over national security in the American legal academy are choreographed events among gentlemen, usually featuring excellent sportsmanship all around. Neither side wins or loses; everyone shakes hands at the end; and everyone keeps his job, his viewpoint, and his dignity.
It is unlikely that the apologists for torture and executive absolutism will persuade many others in the legal academy to join their cause. But that is not the point. The Professors Strangelove play to an audience beyond the academy. They provide a degree of intellectual legitimacy to an ideology and a political program that has been developed, for the most part, outside the ivory tower.
Full disclosure: Alice is not only a friend, she singles me out in a footnote as one of the only people (along with Louis Fisher) willing to criticize Posner and Vermeule during the Opinio Juris symposium. Interestingly, she points out that I teach in New Zealand, seemingly implying that my physical and symbolic distance from the U.S. legal academy may have loosened my tongue. I would like to think she’s wrong about that, but I can only speculate. Fortunately, we don’t have to speculate about Alice’s bravery. I admire her for her willingness to take Posner and Vermeule on, and I think her review is as thoughtful and persuasive as it is unrestrained. Read it and decide for yourself.
I guess when you comment from Toledo your comments are not good enough to be cited – or maybe there is some unwritten rule (one more) about selection of guests. If that is offered to me now, I respectfully decline ahead of time.
So it goes.
I do not know how many ways it is possible to say how wrong Vermeule and Posner are, how wrong Goldsmith and Posner are, and how wrong Yoo is. That is why we are seeking a new ASIL resolution.
Best,
Ben
Ben,
I don’t think Alice intended to slight you. I imagine she was simply referring to the permanent OJ members and the few people we formally invited to respond to P&V. You are, of course, a valued member of the OJ community — and not simply because I often agree with you…
Kevin
That was a very good review. It was penetrating and to the point, and its use of the Dr. Strangelove allegory was inspired. I also have to join Kevin in welcoming the unapologetically strident tone of the piece. I feel this tone is entirely appropriate, matched as it is by legalistic rigour, and does not breach academic propriety. I mean, let’s be honest here, for all the distinguished pedigree of the authors, these views are extremist jurisprudential outliers, which falsely claim a mantel of historicism, and do not offer a convincing response to even the handful of voices here, let alone the corpus of legal academy. I would also point out that the authors themselves are hardly sparing or generous with their characterisation of opposing viewpoints. I feel the genteel, disengaged and excessively deferential tone used by the upper echelons of mainline liberal academia, in exchanges with such repugnant views, has too often been an enabler of those views. Far-right intellectual publications need to be engaged seriously and on a systematic basis, but that need not entail kiddy-gloves that are not certainly not used reciprocally.. Far too often the tendency is to overlook the legion of overt insults and strawman… Read more »
Not surprisingly, I beg to differ. I think there is a place for strident, angry polemicism, but I doubt legal academia (or academia in general) is the place for it. There are plenty of opportunities for folks to express their anger and contempt for each other and each other’s ideas outside of academic discourse. It strikes me that the main value of the civil tone usually invoked in the academy is that it focuses one’s attention on the ideas being presented, and not the the people or personalities behind the ideas. But Ristroph’s review, which skirts this line but seems mostly to avoid crossing it, reflects a troubling trend.
Julian, I said nothing about people or personalities; nor did I address the idea of confronting an underlying agenda through stridency, though I think some academics would benefit from reading between the lines a bit more. Here, I am strictly speaking about being honest about the actual merit of the opinions and analyses in question, next to the weight of prevailing work in the area, both in international law and other relevant disciplines. For example, I do think the ticking time bomb scenario that is so often used as starting concession against the universal of non-derogation, to make room for a sweeping Presidential prerogative, is disingenuous and lacking in credibility. As Ristroph rightly points out, there is serious and authoritative empirical literature on the subject, and that particular hypothetical is neither novel nor instructive. It is a disingenuous attempt to rob us of settled wisdom through a concoction of false certainties that never exist in reality. In that regard, I would make no apologies either as an ordinary citizen, or student of international law, to dismiss that intellectual crutch, without forfeiting my professed desire to engage rival opinion in good faith, and with academic comity. Now, I’m not saying I… Read more »
Yes, I would even go so far as to say that with these types of ideas, civility can be a form of violence to human dignity. The civility itself serves as a form of legitimation because we spend time trying to politely think through their ideas instead of resist. And that legitimation is of a set of ideas that bring with them in my experience all kinds of rightist/authoritarian violence. “Hair on fire” about these things is not a necessarily bad attribute – even in academia. It is the dilemma of democracies when authoritarianism from the right comes in – people seem unable to grasp the danger that is presented by these ideas and the threat to freedom. People are lulled along. And those who will espouse these ideas obviously are speaking the language of powerful interests who help to diffuse their ideas. I remember persons once being a little upset at an Opinio Juris cocktail because I objected to John Bellinger being there. It was not “done”. And we learn each day in the news about what he has done and does but we are all supposed to be so civil when together. If you see that V and… Read more »
My question for those of you who support Ristroph’s review is do you (a) think that it is an aggressive, yet not ad hominem, attack or (b) think that it is an ad hominem attack but that ad hominem attacks are permissible in this circumstance. I think the two are very different and I think it is very important that we distinguish between the two. One more point regarding the footnote you all are talking about and who has or has not spoken out against the U.S. response to 9/11 and how the person ranks in the academy. My personal feeling is this, there are professors in the academy who have a political view to the left, professors with a view to the right, and then those that really don’t have a given view. In law school, I had all three. Those on the right have spoken about the U.S. response to terrorism as have those on the left, obviously. My point is this, the professors in the latter category, the more general theorists whose politics you don’t really know, have not really come out with scathing critisisms of the Posners and Yoos of the world. I don’t want to… Read more »
NewStream Dream, it’s the former. I admired the clarity of review’s stridency, because it was matched by rigorous argument and so justified the emphatic tone. Neither Kevin, myself, nor Ben, have said anything that could be construed as admiration or licence for any real or imagined ad hominem attack, so I’m not sure why that needed clarification, but anyway. I disagree with your comments about an ostensible ‘hidden’ uncertainty in international legal opinion, and the prevailing orthodoxy in US constitutional law, as regards these kinds of views. I don’t agree these aren’t radical, outlier opinions, and I don’t agree they are broadly repudiated by the best legal traditions across broad political lines. Your tone kind of rubs me the wrong way a little here too. You seem to imply that professed liberal views, even if they are general or in other areas, are somehow a disqualifier for being able to represent anything more than ‘one side’ – which already assumes, in a crude CLS kind of way, the politicisation of law. It’s the old fallacy that truth must be somewhere in the middle, between any two given points, no matter their polarity and mass. It also discounts the radically changed… Read more »
In the academy, the distinguished professors who advocate torture, executive absolutism, and other departures from the rule of law have been met with respectful, and inconsequential, disagreement.
I think the reviewer mistake the reason that the disagreement is inconsequential. It’s not tone, but a lack of success in the courts or public opinion as a whole.
I’d venture that his opponent’s tone has little or no relation to the probability of Mr. Yoo being convicted or held liable for anything.
I must say I am a little baffled given the enormous consensus of international law professors and practitioners(who I find generally not particularly liberal and really quite conservative) who supported the ASIL Resolution on use of armed force and treatment of detainees back in 2006 that there would be some perception that some persons silence meant it was somehow acceptable to “hang back” from criticizing the Vermeule’s, Posner’s, Yoo’s, Goldsmith’s, Bellinger’s and the rest of them. I find plenty of persons who wear a conservative label who are absolutely appalled (including most notably members of the military JAG corps) by what is going on. The most recent person of this stripe is Colonel Morris Davis who is testifying for Hamdan! I should also note that democrats and republicans are implicated in the torture and lawlessness in a manner that makes it hard to discern just what meaning the American “liberal” and “conservative” categories are really to be given. I hardly think of William Taft IV as some kind of radical liberal or for that matter Alberto Mora or some of the Reagan era persons who have disagreed strongly with what is being argued by these rightist/authoritarian types. I thought that… Read more »
’I think the reviewer mistake the reason that the disagreement is inconsequential. It’s not tone, but a lack of success in the courts or public opinion as a whole.’ I don’t think Ristroph is for a second imagining the tone of academic commentators as being an exhaustive explanation for the triumph of these views. Obviously it isn’t, and her attempt to explicitly locate the audience for these views as being outside the ivory tower is a clear shot at the fact that the views are sustained fundamentally by their convenience to those in power and populist conservative politics, rather than their ability to acquit themselves in academic battle. So, clearly we can accept that academic woolliness is separate from the fundamental drivers for why these views exist in the first place, without denying it is a contributor to their legitimation. The point is that the academic battle is still important, and academics need not be so obliging in putting themselves on the back foot when confronting outlier work from a position of established consensus. Otherwise, you just enable and encourage the perception that this tiny minority view is really a mainline alternative position, and you create a new false middle… Read more »