Law is Everywhere

Posted: 10 Sep 2011

See all articles by Owen M. Fiss

Owen M. Fiss

Yale University - Law School

Date Written: 2007

Abstract

War places great stress on society. It calls for major readjustments in government and in ordinary life. Often people are called on to make enormous sacrifices. In order to respond to these needs, codified law is often changed. The Executive promulgates new regulations and Congress enacts statutes to meet the exigencies of the war. The governing assumption of American society is that these war measures will be undertaken within the terms of the Constitution - that the allocation of powers among the branches set forth in the Constitution will be respected and basic liberties will be honored. Ours is a Constitution for times of war as well as times of peace.

The last five years have confounded this assumption and rendered the example of Justice Aharon Barak especially compelling. He has honored the special security needs of Israel while being adamant in protecting Israel’s democratic character. The contrast with the American experience is stark, even when a principle as sacrosanct as the prohibition against torture is at stake. The war against terrorism seems to have absolved the current Administration from any sense of limits.

Keywords: War on Terror, constitutional law, prohibition of torture, Aharon Barak

JEL Classification: K30

Suggested Citation

Fiss, Owen M., Law is Everywhere (2007). Yale Law Journal, Vol. 117, No. 2, p. 257, 2007, Available at SSRN: https://ssrn.com/abstract=1925074

Owen M. Fiss (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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