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date: 30 November 2020

Abstract and Keywords

This chapter describes U.S. law governing the use of military force, and it considers the potential value of comparative study of how different countries regulate the issue. As the chapter notes, there is significant uncertainty and debate in the United States over the distribution of authority concerning the use of force—in particular, over whether and to what extent military actions must be authorized by Congress. Because courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a practical matter, through the political process. For those who believe that it is important to have legislative involvement in decisions to use force, the political process has not proven to be satisfactory: presidents have often used military force without obtaining congressional approval, and Congress generally has done little to resist such presidential unilateralism. The United States is not the only country to struggle with regulating the domestic authority to use military force. This issue of foreign relations law is common to constitutional democracies, and nations vary substantially in how they have addressed it. Comparative study of such approaches should be of inherent interest to scholars and students, including those trying to better understand the U.S. approach. Whether and to what extent such study should also inform the interpretation or revision of U.S. law presents a more complicated set of questions that are affected in part by one’s legal methodology and how the comparative materials are being invoked.

Keywords: United States, use of force, congressional authorization, role of courts, constitutional democracies, comparative study, legal methodology

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