Samuel Moyn, Yale Law School, has posted A Letter to Hans Kelsen on the Use of Force:
In the last days of 1966, John Fried wrote a letter to Hans Kelsen. American by emigration, Austro-Hungarian in their origins, and international lawyers both, Fried and Kelsen were colleagues-and family. At the time, Fried, Kelsen's nephew, was the behind-the-scenes organizer of the ragtag band of international law experts contesting America's escalation of the Vietnam war. In the letter, Fried agonized over the authority that Kelsen, by far the most famous international lawyer of the twentieth century, had ostensibly furnished Lyndon Johnson's administration for what had become a gargantuan enterprise-and what had begun, Fried insisted, as a flagrantly illegal war, regardless of its consequences or scope. The letter is a fascinating and moving historical document that has to be deciphered in its context. It is likewise, I believe, a commentary on our own contemporary dilemmas about the uses of international law, or even law as such, and the spirit in which to think about both. After all, we have our wars, too, and our agonizing uncertainties about how and whether to turn to law to restrain them — indeed, about how best to think about law’s relation to morality and politics in the first place. If the rule of law Fried and Kelsen followed, in their different ways, brought them to this, of what use was the rule of law?
--Dan Ernst
