Hidden Law‐Making in the Province of Medical Jurisprudence

Judges articulate their role in controversial cases of medical ethics in terms of deference to Parliament, lest their personal morality be improperly brought to bear. This hides a wide range of law‐making activities, as parliamentary sovereignty is diffused by ‘intermediate law‐makers’, and judicial activity is more subtle than the deference account implies. The nature of litigation raises questions about the contributions of other legal personnel and also the nature of the parties' interests in test‐cases. While judges demonstrate an awareness of some of these issues and anxiety about the constitutional legitimacy of their work, a more nuanced account is needed of their proper role. This may be built on Austin's theory of tacit legislation. It may draw from human rights law. However, considerable work is required before the complexities of hidden law‐making can be properly incorporated into the province of medical jurisprudence.     

Strategic Consequences of Radical Islamic Neofundamentalism

Militarized Islamic neofundamentalism is a modern and essentially violent ideology. As an ideology, it cannot be killed, but instead must be supplanted. The strategic objective of defeating the ideology is distinct from, and sometimes in conflict with, the tactical objective of combating terrorists. Managing this tension requires the war on terror to be conceived in essentially political terms, which in turn requires a realignment of U.S. security policy.     

The Muslim Middle East: Is There a Democratic Option?

American counterterrorism strategy defines as “moderate” or “mainstream” any Muslim who does not support the jihadi extremists, which sets the bar very low and does not consider the question of how widespread such support actually might be. Unfortunately, Al Qaeda is not the lunatic fringe of Sunni Islam—it is the fanatic core of Sunni Islam, and shares much of its ideology with other organized Islamic groups and, for that matter, much of the Muslim faithful. “Moderate” Islamist groups, such as the Muslim Brotherhood, are moderate only in relative terms, are mostly antidemocratic, and are more correctly considered nonviolent enemies of the U.S. This being the case, a democratic opening in the Muslim Middle East is all too likely to bring to power profoundly antidemocratic groups that are virulently and possibly violently hostile to the U.S. A possible alternative strategy is one stressing good government, with gradual democratization as societies decompress.     

A Smaller Military To Fight the War on Terror

The defense budget can be reduced and the U.S. military downsized because (1) the nation-state threat environment is markedly different than it was during the Cold War, and (2) a large military is not necessary to combat the terrorist threat. In fact, the Islamist terrorist threat is relatively undeterred by the U.S. military presence abroad, and U.S. forces abroad, particularly those deployed in Muslim countries, may do more to exacerbate than to diminish the threat. The arduous task of dismantling and degrading the terrorist network will largely be the task of unprecedented international intelligence and law enforcement cooperation, not the application of large-scale military force. To the extent the military is involved in the war on terror, it will be special forces in discrete operations against specific targets rather than large-scale military operations.     

Stumbling into the Future? The Indirect Approach and American Strategy

The United States has yet to reconcile its strategic culture to the realities of the post-9/11 era. In the absence of a consensus on grand strategy, America's military and civilian leadership is arguing that in a world of “persistent conflict,” America must exercise its power in increasingly indirect ways. This essay explores the current surge of interest in the so-called “indirect approach” and its possible relevance for the strategic environment of today and tomorrow. We briefly consider a strategic framework for an indirect approach, what true implementation would take, and the attendant risks of such a path. Pursuing a global indirect approach in the absence of such a framework could send America stumbling to the farthest corners of the globe only to harm her own strategic interests.