Sunday, June 22, 2008

Legal Realism and International Law, 1938

You probably have had quite enough of Jerome Frank from last week’s posts, but during a recent trip to Yale’s Beinecke Library I came upon a quarrel between Frank and another legal realist of the 1930s, Felix S. Cohen, that I found of some interest. (Cohen is the subject of Dalia Tsuk Mitchell’s Architect of Justice (2007) which won the American Historical Association’s Littleton Griswold Prize in American Law and Society this year.)

The dispute was an intramural affair in the National Lawyers Guild in early 1938 and a factor in the eventual exodus of prominent liberals, such as Thurman Arnold, Morris Ernst (no relation), and Jerome Frank. On one level, the conflict was the proper range of concerns of a professional organization of lawyers--in particular, whether it extended to foreign affairs. (Abe Fortas, for one, would later claim that he resigned from the Guild after it started concerning itself “with matters not seemly for a legal society.”) On another level, it was an indication of the liberals’ discomfort over the growing influence of radicals within the Guild--although they were principally concerned about Communists and not a Socialist like Cohen. The affair is well chronicled in Percival Roberts Bailey’s dissertation, “Progressive Lawyers: A History of the National Lawyers Guild, 1936-1958" (Rutgers, 1979), the best work I know of on the Guild, albeit completed before Cohen's papers were opened to researchers.

As Bailey explains, in 1937 two different factions within the Guild put forth legal arguments in favor of lifting the embargo against the belligerents in the Spanish Civil War. As chairman of the Guild’s National Committee on International Law, Felix Cohen produced a report arguing that the embargo against the Spanish Republic was invalid under existing treaties. The report called for amendments to the Neutrality Act “so as not to impose an embargo against a democratically elected government that is threatened by civil insurrection and foreign intervention.” Cohen obtained the approval the Guild’s National Executive Committee to have the report appear in the Guild's Quarterly, with the preface that it represented the views of his committee and not the entire Guild. He then issued a press release publicly criticizing the administration’s position, at a time when many prominent New Deal lawyers were among the Guild’s members.

The press release provoked Jerome Frank to urge the National Executive Committee not to commit the Guild’s members to controversial issues of foreign policy. Morris Ernst prepared a rebuttal for publication in the Quarterly and obtained the supporting signatures of many prominent liberals for its proposition that Cohen’s report dressed up “partisan considerations” in legal language to make it a fit subject for a professional association of lawyers. Cohen took offense and wrote Ernst and the signers of his rebuttal.

Frank replied at length on January 10, 1938. The lifting of the arms embargo was “basically, not a legal question,” he protested to Cohen. “The principles of international law are peculiarly uncertain,” he elaborated. “Historically, and by their very nature, they are par excellence rationalizations of ad hoc attitudes. Essentially they are weapons employed for diplomatic purposes. Every country uses those particular alleged principles of international law which at any given moment suit its convenience.”

He continued:
For purposes of casuistry the invocation of some alleged principles of [international law] may be expedient. And if in a spirit of deliberate partisanship you were thus to evoke such alleged principles, on the basis that a desirable end justifies the use of any means, and that the only test of the propriety of such “reasoning” is one’s getting away with it, then I could understand you. But I do not understand your high moral indignation when someone, blowing away the gossamer of legalism, scrutinizes and criticizes the non-legal postulate which bottoms your discussion. The real test of the views you express in your letter to Morris Ernst is this: Would you be in favor of applying the same alleged principles of international law regardless of the consequences to the people of the United States? Frankly (the world being what it is today) I must say that I would not.
Cohen promptly replied. “What you say about the haziness of international law may be true in many fields, but on the main point of the report we were dealing not with theory but with the historical practice of the United States and other nations respecting foreign insurrections. We were dealing with brute facts and showing how habits developed in one situation were thrown over in another situation, to the great gratification of Mr. Franco, who publicly expressed his appreciation of the embargo.”

Frank held his ground. “My fundamental point is not that there is what you call ‘haziness’ in international law,” he wrote.
My basic point is that the so-called principles of international law are applied, or not applied, in particular instances, in accordance with what a particular country considers, at the particular moment, to be for the welfare of its citizens. Consequently, any given so-called principle of international law is often applied by any given country to one set of facts in one part of the world and not applied to what might seem to be a similar set of facts in another part of he world. Not to recognize that such is the manner in which so-called international law is always applied is to ignore the facts of life.
Would Cohen apply principles of international law “even though the result in some particular instance would be gravely injurious to the people of the United States?” If so, he and Frank certainly disagreed, for Frank believed that “the welfare of the country” trumped “such ethical absolutes.” And if Cohen agreed that the welfare of the nation was paramount but thought lifting the embargo would not endanger it, the two disagreed on a question of fact--a disagreement, Frank argued, that suggested the inappropriateness of the issue for a lawyers’ association. He closed with a dagger: Cohen’s statement on the Spanish embargo wove together “legal citations and ethical attitudes” much like the reports of the despised American Bar Association.

Much about the exchange, which continued beyond these letters, puzzles me. What were the sources, ethnic or otherwise, of Frank’s isolationism, which he expressed at greater length in Save America First (1938) and a related address? Are Cohen's and Frank's positions consistent with their more general jurisprudential differences, to which Tsuk Mitchell refers? Does the exchange tell us anything about the end of legal realism, in its most skeptical form?

Legal realists’ encounters with internationalism have found a place on the research agenda of legal historians recently with the publication of Elizabeth Borgwardt’s A New Deal for the World? and the pre-print posting of Harry Scheiber’s essay on Joseph Bingham in Law and History Review. A paper on the Cohen-Frank exchange would be a useful addition. Perhaps some legal-historian-in-training might take it on as a seminar paper?