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Response or Comment


The Perils of Positivism: A Response to Professor Quigley, 2 Duke Journal of Comparative & International Law 229 (1992)


Professor Quigley's article is a classic demonstration of the perils of positivism. Putting factual errors to one side—and they are numerous—its fatal flaw is jurisprudential. It treats legal rules as if they were machines entirely divorced from their context of history and policy, capable of answering legal questions without thought or deliberation.

Quigley is dubious about the proposition that Iraq committed an act of aggression by invading and attempting to annex Kuwait in 1990. He regards Iraqi claims against Kuwait as substantial, even if, in his opinion, they did not quite justify Iraq in seizing and swallowing the country by force. He argues, however, that because the world community has severely punished Iraq for what it decided was a violation of Article 2(4) of the United Nations Charter, it should apply the same remedies against Israel for what Quigley regards as clear-cut Israeli aggression against Egypt in June, 1967. He accomplishes this breath-taking feat of legal legerdemain by assuming that the infallible way—indeed, the only way—to discover whether a state has violated Article 2(4) of the Charter is to determine who fired the first shot. After a thin, questionable, and incomplete review of the events surrounding the opening moments of the Six Day War in June, 1967, Quigley concludes that Israel did indeed fire the first shot, and therefore should be quarantined or bombed and invaded until it purges itself of aggression—at least by evacuating the territories it occupied during the Six Day War. Unless this is done, Quigley concludes, the United States and the United Nations Security Council (Security Council) will stand condemned for applying a double standard in their interpretation and application of the Charter.

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