The notion that law can be reduced to a science that yields truths as certain and universal as those of the physical sciences seems so implausible that efforts to characterize law in that way tend to strike most modern readers as either naïve or dogmatic. This Note seeks to challenge the assumption of some modern scholars that because nineteenth-century American legal theorists did describe law as a science, their use of the term “legal science” represented an attempt by the legal elite to obscure the inherently political nature of legal doctrine. At the same time, this Note challenges the claims of other scholars, who have defended the concept of law as a “science” by arguing that legal reasoning can yield deductively necessary and certain conclusions. Both groups of scholars assume that achieving legal certainty was the goal of nineteenth-century legal science and only disagree as to whether such a goal was intellectually justified. This Note argues that many nineteenth-century legal theorists aspired to transform law into a science not simply because they desired legal certainty, but because they desired legal knowledge. Specifically, such theorists as James Wilson and Gulian Verplanck developed a philosophy of law grounded in epistemological and metaphysical arguments of the Scottish Common Sense school of philosophy. For these theorists, such arguments seemed to justify their belief that they could discover legal principles through the same inductive, empirical methods that had yielded discoveries in the natural sciences. In other words, common sense philosophy allowed them to conceive of themselves as legal scientists.
Note
Crossroads in Cambodia: The United Nations’ Responsibility to Withdraw Involvement from the Establishment of a Cambodian Tribunal to Prosecute the Khmer Rouge
For almost twenty-five years, the former leaders of the Khmer Rouge, responsible for the deaths of over 1.7 million of their fellow Cambodians, have enjoyed freedom absent domestic and international accountability for their actions. Since 1997, the United Nations and Cambodia have engaged in contentious negotiations for the establishment of a criminal tribunal to try the former leaders of the Khmer Rouge. In March 2003, the United Nations and Cambodia agreed on an internationally supported, yet Cambodian-controlled, tribunal to prosecute the former members of the Khmer Rouge for genocide and crimes against humanity that occurred between 1975 to 1979. The U.N. General Assembly is awaiting its expected ratification by the Cambodian National Assembly. While these developments appear to signal a shift toward international justice and domestic reconciliation, the presence of widely asymmetrical goals and intentions between the U.N. and the Cambodian government poses unfortunate risks both to the Cambodian people and to the international community.
This Note will argue that the agreed-upon proposal will both fail to meet international standards of justice and prove to be a greater risk than complete withdrawal of international involvement. To this end, the Note will argue that the U.N. should either demand the establishment of an ad hoc international tribunal for Cambodia (with goals and structure similar to existing tribunals created for the former Yugoslavia and Rwanda), or completely withdraw from any involvement in the adjudication of the Khmer Rouge crimes. Any alternative would compromise the best interests of the international community, the development and enforcement of international law, and the stability and rehabilitation of Cambodia.
Citizenship Denied: The Insular Cases and the Fourteenth Amendment
Pursuant to the doctrine of territorial incorporation established in the Insular Cases, Puerto Rico is an “unincorporated” territory, and as such, it does not form part of the United States within the meaning of the Constitution. As a result, persons born in Puerto Rico are not “born in the United States” under the Fourteenth Amendment and are not constitutionally entitled to citizenship. Because they enjoy only statutory citizenship, Congress arguably is able to expatriate most Puerto Ricans if the island is declared independent. Moreover, the inferior citizenship status of Puerto Ricans reveals a grave inconsistency in the law of the Fourteenth Amendment that has never been addressed. In response to Dred Scott, the Fourteenth Amendment constitutionalized the common law doctrine of jus soli, which provides that all persons born on U.S. territory and not subject to the jurisdiction of another sovereign are native-born citizens, regardless of race. Pursuant to this interpretation of the Citizenship Clause, persons born in Puerto Rico have been “born in the United States” since the ratification of the Treaty of Paris. By retroactively narrowing the scope of the term “United States,” the Supreme Court took advantage of the unique geographical circumstances of the insular territories and prevented their inhabitants from obtaining equal citizenship. Thus, the doctrine of territorial incorporation reasserts Dred Scott’s race-based approach to citizenship and should be overruled.