Chaining the Dog of War: Comparative Data

The Oxford Handbook of the Use of Force in International Law, 2015

DCAF Occasional Paper 22, 2010

War powers have been contested between governments and parliamentsthroughout the history of democratic politics and political theory. On theone hand, the authorisation of standing armies, of conscription and of taxesfor the purpose of waging war has been the raison d’être of early modernparliamentarianism ever since the English nobility reached a constitutionalsettlement in the Glorious Revolution of 1688. The paper outlines some patterns and basic variations that we found in parliamentary control procedures among 49 states examined and describes the decision-making power that parliaments possess before troops can be deployed by their governments.

SSRN Electronic Journal, 2008

In February of 1946, General Douglas MacArthur gave members of his staff a week to produce a draft of a new Japanese constitution. That draft formed the core of a constitution that has stood, formally unchanged, for 62 years and counting. The Japanese case suggests that occupiers can alter the institutional course of their host country, perhaps for generations. But we know very little about constitutions written under such unusual circumstances. Given foreign control, one might expect that occupation constitutions are direct transplants, perhaps lifted from the occupier's own constitution. After all, even in ordinary times, drafters of constitutions borrow foreign ideas (and sometimes whole clauses, typographical errors and all) from abroad. 2 In this essay we report some findings from an investigation of the incidence, content, and durability of constitutions written under foreign military occupation. The focus on this particular species of constitution is part of a much larger project in which we are identifying, collecting, and analyzing written constitutions since 1789. 3 1 We thank the editors, Michael Coppedge and Anthony Messina, for their helpful comments. Occupation constitutions represent a small minority (roughly 5%) of constitutions since 1789, but knowing something about their structure and fate is illuminating, particularly with respect to states 2 Elkins is completing a manuscript that describes the global spread of constitutional ideas under more voluntary circumstances in addition to the more coercive context we describe here. 3 The Comparative Constitutions Project. For details, see the project website at comparativeconstitutionsproject.org.

2014

In this book, Rosara Joseph studies the evolution of the war prerogative in England from 1600-2012. The author traces the historical theory and practice of the war prerogative and proposes reform of the constitutional arrangements for its exercise. Meticulously-researched and written in a lively and engaging style, the book will interest scholars in international and constitutional law, political science, and modern history, writes Gordon Bannerman.

Annual Review of Law and Social Science, 2024

Studies of constitutions in authoritarian regimes reveal a new finding hiding in plain sight: that the military is often a key constitutional actor. The question of how the military uses law and constitutions to enable and facilitate its influence in constitution making and constitutional practice is under-researched. The military demands scholarly attention because of the unprecedented opportunities for the military in governance due to the rise of populism and the decline of democracy, internal conflict, efforts at counter-terrorism and anti-trafficking, and the COVID-19 global pandemic. I review the literature across law and the social sciences on the constitution and the military in authoritarian regimes. In doing so, I demonstrate that the military is an important, yet overlooked, constitutional actor; that civilian control of the military by law is never absolute but a matter of degree and changes over time; and that histories of military rule and military use of law and constitutions matter.

Ethics & International Affairs, 2010

2018

This paper will serve as an examination of the powers and limitations of the United States legislative branch of government in matters of war. In doing this, precedence will be given to specifically enumerated powers granted or withheld by the current Constitution of the United States. Founding documents, such as the Articles of Confederation and early state constitutions will also be examined and contrasted with the current legal regime in an attempt to better understand the true meaning behind the Constitution. International law, as it applies to American war powers, will also be examined when relevant.

Griffith Law Review, 2009

The legal power to declare war has traditionally been a part of a prerogative to be exercised solely on advice that passed from the King to the Governor-General no later than 1942. In 2003, the Governor-General was not involved in the decision by the Prime Minister and Cabinet to commit Australian troops to the invasion of Iraq. The authors explore the alternative legal means by which Australia can go to war-means the government in fact used in 2003-and the constitutional basis of those means. While the prerogative power can be regulated and/or devolved by legislation, and just possibly by practice, there does not seem to be a sound legal basis to assert that the power has been devolved to any other person. It appears that in 2003 the Defence Minister used his legal powers under the Defence Act 1903 (Cth) (as amended in 1975) to give instructions to the service head(s). A powerful argument could be made that the relevant sections of the Defence Act were not intended to be used for the decision to go to war, and that such instructions are for peacetime or in bello decisions. If so, the power to make war remains within the prerogative to be exercised on advice. Interviews with the then Governor-General indicate that Prime Minister Howard had planned to take the matter to the Federal Executive Council for noting , but did not do so after the Governor-General sought the views of the then Attorney-General about relevant issues of international law. The exchange raises many issues, but those of interest concern the kinds of questions the Governor-General could and should ask about proposed international action and whether they in any way mirror the assurances that are uncontroversially required for domestic action. In 2003, the Governor-General s scrutiny was the only independent scrutiny available because the legality of the decision to go to war was not a matter that could be determined in the High Court, and the federal government had taken action in March 2002 that effectively prevented the matter coming before the International Court of Justice.

2005

War requires strong, centralized and efficient government. But that same sort of government is a conservative's worst nightmare when it comes to domestic policy. This has left conservatives with a stark constitutional conundrum, at least since the First World War: Must they sacrifice a commitment to limited government in order to play an essential world role? Or, conversely, must they sacrifice that world role to assure liberty and limited government at home? This essay, a review of John Yoo's "The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11," argues that Yoo's is struggling to develop a constitutional justification for an assertion of extraordinarily broad Executive power and yet, at the same time, a theory that attempts to build barricades against the risk that this massive central power might blow back, and erodeconstitutional limits on central government at home.