Journal of Conflict and Security Law Advance Access originally published online on February 3, 2006
Journal of Conflict and Security Law 2006 11(1):1-40; doi:10.1093/jcsl/kri024
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Analogies at War
* Assistant Professor, Department of Government and Committee on Degrees in Social Studies, Harvard University. E-mail: jmeierhenrich{at}gov.harvard.edu
Silent enim leges inter arma
What is war, as we now use the term? What are the consequences thereof for the meaning of law? Under what conditions is the language of war necessary for capturing the demands on law in times of transition? By examining the evolution of ‘war talk’ and ‘law talk’, and the implications thereof for ‘rights talk’, this article examines the promise – and limits – of transformative law, with particular reference to recent developments in the United States. From the ‘war on poverty’ to the ‘war on crime’ and from the ‘war on drugs’ to the ‘war on terrorism’, the practice of law in the United States has taken its cue from the language of war. To ascertain the meaning of language, this article provides a discourse analysis of law – and war – in times of transition. The article introduces modes of analogical reasoning and demonstrates the importance of analysing language for understanding law and public policy. The analysis shows that decision-makers use analogies not simply to justify law and public policy (what I term rhetoric) but also to perform specific cognitive and information-processing tasks essential to decision-making (what I term reason). Applying this framework for analysis to the case at hand, the article traces the emergence of the ‘war on terrorism’ and explains, first, how the language of war informed US responses to the terrorist attacks of 11 September 2001 and delineates, second, the consequences thereof for political rights and civil liberties.