Eugene V. Rostow

The Enforcement of Morals

There may be a point in reviewing the controversy occasioned by Lord Justice Devlins Maccabaean lecture from an American point of vantage. For the Justices brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”

The Reinterpretation Debate and Constitutional Law

I wish to raise two issues with respect to Professor Koplows article. The first is whether it is proper for the American Society of International Law to undertake the report which served as the basis for the Koplow piece. I believe that it is improper for the Society to issue a collective public statement endorsing one side of a partisan political controversy. Secondly, with respect to the substance of Koplows argument, I disagree with parts of his analysis and find his proposed solution for the dilemma of treaty interpretation unsatisfactory in principle and unworkable in practice.

Myres S. McDougal

The facts are not in doubt, and may be stipulated: born and brought up in Mississippi; graduated from Ole Miss, where he taught classics for two years; a Rhodes Scholar who studied to advantage with Holdsworth and Brierly; a Sterling Fellow and J.S.D. during vintage times at Yale. His youthful frolic in the classics aside, McDougals whole working career (thus far at any rate) has been rooted in the Yale Law School, save for a lively apprenticeship (1931-1934) at the Law School of the University of Illinois and a season in the foreign affairs bureaucracy during World War II. His wartime experiences shifted the focus of his immediate concern from the law of real property, which he called Land-Use Planning, to international law, which he identifies as the Public Order of the World Community. Now Mac has reached Yales retirement age, and he becomes Emeritus, at the peak of his creativity. The facts, however, do not begin to suggest the magnitude of the task of accounting for the phenomenon of Myres Smith McDougal.