The Legalization of National Security: State, Society, and the Law on the Use of Force

Many states around the world have increasingly turned to the law in addressing and formulating their national security policies. Whether it is the assassination of Osama bin Laden or American action in Libya, much discussion and debate have focused on the legality of such uses of force. Which side is right in such debates is less important than the legal character such discussions have assumed. This is a significant development, especially given the common assumption that because the law constrains, political leaders eschew the law in strategic contexts. So why are states increasingly turning to law in addressing and formulating their national security policies?From an interdisciplinary perspective, this project argues that the interplay of two main factors has promoted the legalization of national security: the concentration of executive authority and the strength of social movement organizations. First, the growing centralization of executive power, as witnessed through the burgeoning national security bureaucracies and administrative state, has prompted a turn to the law since it is seen as both a valuable instrument in policy promotion in a world of complex threats, as well as an important source of legitimacy. Second, social movement organizations have sought influence in national security through sophisticated litigation strategies that challenge the executive to justify policies through legal argumentation. Therefore, paradoxically, both the expansion of executive authority and pressures against it from below contribute to legalization. These factors represent what this study posits as the growing structural contradiction between the values of statism (sovereignty) and individualism (human rights) in the international system. This fundamental logic of contradiction operates as an important engine for legal and political change and can manifest in different ways, such as competition, conflict, confusion, and contravention. Both the executive and social movements turn to the law because the inherent indeterminacy of law provides both with resources for justification, and such law-based argumentation has reinforced itself and promoted legalization. This project examines variations in both factors through cases studies involving the U.S., China, Japan, and South Korea.The implications of the legalization of national security are significant. First, the approach taken in this study opens up the field to examine not only international law, which has predominated questions on the use of force, but also to seriously examine domestic legal developments. By encompassing domestic law, it offers a more holistic and empirically relevant perspective on a research program that has been overly normative in scope and tone. Second, the focus on domestic law challenges the traditional emphasis on compliance in international legal scholarship. Rather than normatively dismissing non-compliance as simply bad, it is necessary to model and empirically test how violations of certain international rules can promote greater legalization. Executives have used domestic legal arguments and interpretations to try and skirt international obligations, but such non-compliance can have the counter-intuitive result of actually promoting greater legalization and limiting executive use of force