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The Initiation of Coercion: A Multi-Temporal Analysis

Published online by Cambridge University Press:  06 June 2017

Myres S. McDougal  and
Florentino P. Feliciano
Myres S. McDougal
Affiliation:
Of the Board of Editors
Florentino P. Feliciano
Affiliation:
Yale Law School, Department of Justice, Republic of the Philippines
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Extract

The confusion engendered by lack of clarity in fundamental conceptions such as “war,” “peace,” and “law” begins with, and is perhaps most clearly exhibited in, the traditional discussion of the many and disparate problems frequently subsumed under headings like “The Initiation of War,” “The Commencement of War,” “The Legal Meaning of War” and “State and Effects of War,” or under the simple query “When does war exist (or begin)?”

Type
Research Article
Information
American Journal of International Law , Volume 52 , Issue 2 , April 1958 , pp. 241 - 259
Copyright
Copyright © American Society of International Law 1958

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References

1 This brief essay, essentially a note on a suggested methodology, is -written as the second in a series of essays on the legal regulation of international coercion. The first essay, on the processes of coercion and of decision, will appear in the May, 1958, issue of the Yale Law Journal. Others will follow, dealing at length with the major types of problems, from the resort to coercion, through the management of combat and noncombat situations, to the termination of coercion. The documentation of this essay reflects its position in the series. The perspectives with which we begin are indicated somewhat cryptically in the editorial “Peace and War: Factual Continuum With Multiple Legal Consequences,” 49 A.J.I.L. 63 (1955).

2 ‘’ The Legal Meaning of War and the Relation of War to Reprisals,'’ 11 Grotius Society Transactions 29 at 45 (1925). Among those who have shared this view is Quincy Wright, who wrote: “War begins when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war, a declaration of war or some ultimatum with a time limit—the existence of war is not dependent upon the type of operations undertaken by the belligerents.” (“Changes in the Concept of War,” 18 A.J.I.L. 755 at 758-759 (1924). Later, Professor Wright submitted that where both belligerents disclaim an intention to make “war,” “ a state of war does not exist until such time as third states recognize that it does.” (“When Does War Exist?” 26 Hid. 362 at 366 (1932).) How the intention of a third state is relevant in inter-belligerent relations is not explained. In his Report on the Legal Position Arising from the Enforcement in Time of Peace of the Measures of Economic Pressure Indicated in Article 16 of the Covenant, Particularly by a Maritime Blockade (8 League of Nations Official Journal 834 (1927)), the Secretary General of the League said: … “from the legal point of view, the existence of a state of war between two states depends upon their intention and not upon the nature of their acts. Accordingly, measures of coercion, however drastic, which are not intended to create and are not regarded by the State to which they are applied as creating a state of war, do not legally establish a relation of war between the State concerned.'’ Similar statements may be found in Lawrence, The Principles of International Law 309 (7th ed., Winfleld, 1928); 2 Westlake, International Law 1-2 (1907); Castrén, The Present Law of War and Neutrality 31-34 (1954); 2 Møller, International Law in Peace and War 156 (trans. Pratt, 1935). Professor Eagleton, too, seems to have shared this view: see “Acts of War,” 35 A.J.I.L. 321 (1941). Cf. Starke, An Introduction to International Law 363 (3rd ed., 1954).

2 Principles of International Law 27 (1952). The protagonists of this side of the debate include Risley, The Law of War 81-82 (1897); Baty, “Abuse of Terms: ‘Recognition' ‘War',” 30 A.J.I.L. 377 at 398 (1936); Ronan, “English and American Courts and the Definition of War,” 31 A.J.I.L. 642 at 656 (1937); Green, “The Nature of the ‘War’ in Korea,” 4 Int. Law Q. 462 at 468 (1951); Pye, “The Legal Status of the Korean Hostilities,” 45 Georgetown Law J. 45 at 48-51 (1956). Cf. Hall, International Law 444-445 (8th ed., Pearce Higgins, 1924). Professors Borchard and Stowell appeared to have favored this side: see Borchard, “'War’ and ‘Peace,'” 27 A.J.I.L. 114 (1933), and “When Did War Begin?” 47 Columbia Law Rev. 742 (1947); and Stowell, International Law 491 (1931). Professor Hyde expressed the same view as Lord McNair (3 International Law 1693-1695[rev. ed., 1945]), but proposed at the same time that “the character of the acts committed rather than the design of the actors should, and probably will be, regarded as decisive of the legal result.” (Ibid. 1688).

4 .Brierly, “International Law and Resort to Armed Force,” 4 Cambridge Law J. 308 at 313 (1932). Cf. Lauterpacht, , “ ‘Resort to War’ and the Interpretation of the Covenant During the Manchurian Dispute,” 28 A.J.I.L. 43 (1934),Google Scholar who does not accept the “intention” theory of “war,” but at the same time suggests that “war” is not necessarily synonymous with the use of “armed force.” These so-called “subjective” and “objective” theories are summarized and discussed in Eagleton, “The Attempt to Define War,” International Conciliation, No. 291, p. 258 et seq. (1933), and in Williams, Some Aspects of the Covenant of the League of Nations 298 et seq. (1934).

5 Professor Wright stated the traditional point succinctly: “the incidence of an act or declaration converting the state of peace into a state of war establishes a division in time before which acts of war are illegal and after which they are legal between belligerents … “ (“Changes in the Concept of War,” 18 A.J.I.L. 755 at 757 (1924)). Hence, traditionally, juristic effort has been directed towards determining what acts or declarations convert “the state of peace” into a “state of war.” And see Deak, “Computation of Time in International Law,” 20 A.J.I.L. 502 at 506-508, 514 (1926) for a plea, made with great seriousness, that the exact date, hour and minute for the beginning of a “state of war” be specified for the reason that “this changes profoundly the juridical situation of each country” (at 506).

6 The Relativity of War and Peace 189 (1949).

7 Ibid. 202.

8 Ibid. 303: “Operations, as they progress … begin to be war legally at diverse points of time. The question ‘when does war legally begin?’ thus requires not one but several answers.” See also ibid. 192, 194, 221-224, 318.

9 Ibid. 204.

10 Legal Controls of International Conflict 310 (1954). His definition of war is: “ a relation of one or more governments to at least one other government, in which at least one of such governments no longer permits its relations with the other or others to be governed by the laws of peace.” (p. 304.)

11 Ibid. 310, note 75.

12 Ibid. 310-311, 311, note 78. He gives some indication of what he means by “municipal legal purposes“: “ It has become … a matter of legislative prudence to fix explicitly the beginning and end of war for the purpose at hand in each major field of legislative endeavor. They may, for example, be fixed at one point in relation to wartime emergency powers, in another for regulation of private legal relations, and this even though the legislature may seem to have left the matter open.” (p. 311.) Cf. Corbett, Law and Society in the Relations of States 212-213 (1951); and Green, “Armed Conflict, War, and Self-Defence,” 6 Archiv des Völkerrechts 387, 424, 438 (1957).

13 Stone, op. cit. 312. Professor Stone almost deprecates his own contribution, insisting that its value is “rather de lege ferenda than as a description of existing law,” and describing his observations as “most tentative” and “by no means coherent with each other.” (p. 313.)

14 See Grob, op. cit. 283-302.

15 Stone, op. cit. 312.

16 See his ‘’ The Duration of the War Between the United States and Germany,'’ 39 Harvard Law Rev. 1020 at 1020-1021 (1926).

17 Dr. Grob conceives the basic task to be that of ascertaining the “legal reality,” “the truth” and “legal meaning” of the “two central, all important terms ‘war’ and ‘peace’ “ (p. 36), of determining “what the rules of law on war mean” (p. 188). His demand for ‘’ legal answers'’ leads him to say that ‘ ‘ Arguing with facts alone will not do. Mere facts prove nothing” (p. 201; italics in the original). The conceptualism of his study thus does not extend to the clear relation of the facts of coercion and the process of decision.

18 Some preliminary indication of what we mean by the process of coercion and the process of decision may be obtained from McDougal, “Peace and War: Factual Continuum With Multiple Legal Consequences,” 49 A.J.I.L. 63 (1955). See also id., “El Derecho International como Ciencia Politica,” 3 Revista de Derecho y Ciencias Sociales Nos. 3-4, p. 142 (1957, Buenos Aires).

19 For exposition of what is characterized as normative-ambiguity, see Lasswell, and McDougal, , “Legal Education and Public Policy: Professional Training in the Public Interest,” 52 Yale Law J. 203, 266-267 (1943).Google Scholar

20 Amplification of this general point is offered in McDougal, ‘ ‘ Law As a Process of Decision: A Policy-Oriented Approach To Legal Study,” 1 Natural Law Forum 53, 54-58, 64-68 (1956); and id., “The Comparative Study of Law For Value Purposes: Value Clarification As An Instrument of Democratic World Order,” 61 Yale Law J. 915 (1952), 1 A.J. Comp. Law 24 (1952). See also Lasswell, “Current Studies of the Decision Process: Automation versus Creativity,” 8 Western Pol. Q. 381 (1955); and Lerner and Lasswell (eds.), The Policy Sciences (1951). For an introduction to the theory of decision-making, see Bross, Design For Decision (1953).

21 A brief itemization of recommended ‘’ intellectual tasks'’ may be found in Mc- Dougal, “International Law, Power and Policy: A Contemporary Conception,” 82 Hague Academy Recueil des Cours 137, 141 (1953) ; and in the article cited note 20 supra, 1 Natural Law Forum at 58-59. See also Lasswell, The World Revolution of Our Time—A Framework For Basic Policy Research (Hoover Institute Studies, 1951).

22 The Concept of War in Contemporary History and International Law (1956).

23 lbid. 52-65, 234-235, 241-244. Dr. Kotzsch differentiates his distinction from that between “war in the legal sense” (war as a “legal condition“) and “war in the material sense” (war as actual military operations) adverted to, for instance, by Professor Wright (op. cit. note 2 supra) in the following terms: “If we, however, replace the distinction of war in the legal sense and war in the material sense by that of war in the formal sense and war in the material sense, it is for the following reason: The former distinction implies the idea that war in the legal sense is of relevancy under international law whereas war in the material sense is not. This is not true. Both forms have obtained their meaning under international law. By customary international law legal consequences have been imputed to war in the material sense. … “ (p. 52.)

24 lbid. 55.

25 Ibid. 241-244. Jessup, Compare, ‘ ‘ Should International Law Recognize an Intermediate Status Between Peace and War?” 48 A.J.I.L. 98 (1954),Google Scholar and “Intermediacy,” 23 Nordisk Tidsskrift for International Ret 16 (1953); and Schwarzenberger, “Jus Pacis Ac Belli? Prolegomena to a Sociology of International Law,” 37 A.J.I.L. 460 (1943). In McDougal, article cited note 18 supra, it was suggested, apropos of the proposals for recognition and elaboration of a new “status intermediate between war and peace,'’ that a mode of analysis more comprehensive and flexible than either dichotomy or trichotomy may be required if clarity and rationality are to be promoted.

26 Op. cit. note 22 supra, at 243. Through his two dichotomies (or trichotomy), he also attempts to resolve the old debate on the “subjective” and “objective” tests of the beginning or existence of war by combining the two: “The concept of war in the material and formal senses pays regard to both the purely objective test of war and the subjective test, which is the essence of the status theory of war. It resolves the doctrinal conflict between the objective and subjective theories of war by the assumption that these theories are not mutually exclusive but complementary” (pp. 54- 55). The minor point has been suggested above that such observations are apt to be no more than exercises in legal syntactics unless both the perspectives of participants and their physical operations are considered in the larger context of the particular instance of coercion involved. The major point is that Dr. Kotzsch's framework for inquiry seems to us less than completely adequate even for the modest goal he set for himself—“to describe the modern concept of war in general international law” (p. 2; italics supplied).

27 Compare Wright, ‘’ International Conflict and the United Nations,'’ 10 World Politics 24, 34-44 (1957), who describes the processes of conflict among states in terms of the parties, their relations, and the field in which conflicts occur.

28 The point is made more or less explicitly in any number of studies on international relations; see, e.g., Haas and Whiting, Dynamics of International Relations, Ch. 3 (1956); Morgenthau, Politics Among Nations, Chs. 3-6 (2nd ed., 1954); Strausz-Hupé and Possony, International Relations, Chs. 1-3 (2nd ed., 1954); Schwarzenberger, Power Politics 17 and Chs. 6-12 (1951); Kalijarvi and Associates, Modern World Politics, Ch. 3 (3rd ed., 1953). On the fluctuations and periodicity of the magnitude of coercion and violence over long periods of history, see 3 Sorokin, Social and Cultural Dynamics 259-380 (1937).

29 Cf. 2 Wright, A Study of War 698 (1942): “ … analysis of the military, psychological, legal, and sociological manifestations of war suggests that all may be regarded as variables which reach a certain threshhold of intensity in actual war. War may therefore be regarded from the standpoint of each belligerent as an extreme intensification of military activity, psychological tension, legal power, and social integration— an intensification which is not likely to result unless the enemy is approximately equal in material power.” At 689: “ … the time space continuum, which in a legal sense is designated a war, has not necessarily been accompanied by a unity or uniformity of intense military activity. While in international legal theory a state of war between two states begins and ends at definite moments of time, these moments have frequently been difficult to establish in practice.“

30 The ‘’ war clause'’ in life insurance policies is typically a clause excluding or limiting the liability of the insurer in case the insured dies as a result of, or while engaged in, service in the armed forces in “time of war.” The wording of the “war clause” has, of course, varied in different policies. The technical issue, however, has usually been presented in the form of whether or not, at the time of the insured's death, there was “ w a r “ either between the state of the forum and another state or between foreign states. The cases which arose in American courts during World War II commonly involved deaths which occurred on Dec. 7, 1941, during the attack by Japanese forces on Pearl Harbor. A group of cases—e.g. West v. Palmetto State Life Ins. Co., 25 S.E. 2d 475 (1943), 202 B.C. 422; Rosenau v. Idaho Mutual Benefit Assn., 145 Pac. 2d 227 (1944), 65 Idaho 408; Savage v. Sun Life Insurance Co., 57 F. Supp. 620 (W.D. La., 1944); Pang v. Sun Life Assurance Co., 37 Hawaii 208 (1945)—allowed recovery by the beneficiary, holding that because the U. S. Congress, to which the Constitution had allocated the power to declare war, had not declared war until Dec. 8, 1941, and had not made its declaration retroactive (as the President had requested) to Dec. 7, there was as yet no “state of war,” or “war in the legal” or “constitutional sense,” on the latter date. These cases relied on a concept that courts may not take judicial notice of the existence of a war until it is formally and officially declared by the Congress, and distinguished between an “act of war” and a “state of war.” In New York Life Ins. Co. v. Bennion, 158 F. 2d 260 (CCA. 10th, 1946), 41 A.J.I.L. 680 (1947), cert, denied, 331 U. S. 811 (1947), noted in 56 Yale L.J. 746 (1947), however, the court, under an identical set of facts, denied recovery against the insurer, holding that the existence of a state of war was not dependent upon its formal declaration but was determinable from an appraisal of actualities, and that there had been a sufficient political determination (by the President) of the existence of war commencing with the attack on Pearl Harbor. Cf. Stankus v. New York Life Ins. Co., 312 Mass. 366, 44 N.E. 2d 687 (1942), where the insured seaman died when the US8 Reuben James was torpedoed by German submarines on Oct. 30, 1941; and Vanderbilt v. Travelers Ins. Co., 112 Misc. 248, 184 N.Y.S. 54 (1920), where the insured lost his life when the Lusitania was sunk. A similar set of life insurance cases arose out of deaths which occurred during the United Nations action in Korea. Beley v. Pennsylvania Mutual Life Ins. Co., 373 Pa. 231, 95 A. 2d 202 (1953), and Harding v. Pennsylvania Mutual Life Ins. Co., 171 Pa. Super. 236, 90 A. 2d 589, rehearing denied, 95 A. 2d 221 (1953), held that since war had not been declared by Congress, the conflict in Korea did not constitute a “war” in the “constitutional” or “legal” sense, and permitted recovery against the insurer. Other courts have taken the opposite stand in a long line of cases: e.g. Stanberry v. Aetna Life Ins. Co., 26 N.J. Super. 498, 98 A. 2d 134 (1953); Langlas v. Iowa Life Ins. Co., 245 Iowa 713, 63 N.W. 2d 885 (1954) ; Gudewicz v. John Hancock Mutual Life Ins. Co., 331 Mass. 752, 122 N.E. 2d 900 (1954); Christensen v. Sterling Ins. Co., 284 Pac. 2d 287 (1955); Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W. 2d 554 (1953), cert, denied, 347 TJ. S. 928 (1954); Lynch v. National Life and Accident Ins. Co., 278 S.W. 2d 32 (1955); Weissman v. Metropolitan Life Ins. Co., 112 F. Supp. 420 (D.C.S.D. Cal., 1953); Gagliomella v. Metropolitan Life Ins. Co., 122 F. Supp. 246 (D.C Mass., 1954) ; Carius v. New York Life Ins. Co., 124 F. Supp. 388 (D.C.S.D. 111., 1954); and Wilkinson v. Equitable Life Assurance Society, 151 N.Y.S. 2d 1018 (1956). For cases involving charter parties containing “war risk” clauses, see Kawasaki Kisen Kabushiki Kaisha v. Bantham Steamship Co. Ltd., [1939] 2 K.B. 544, and Spanish Government v. North of England Steamship Co. Ltd., [1938] 54 T.L.R. 852.

31 Stone, op. cit. 304, note 40, 310, note 77, 314, note 92.

32 It seems fairly obvious that the question of the commencement or existence of a “state of war,” or “war in the legal sense” or simply “war,” between two countries as determined for the very different purposes of the world public order is but of tangential, if any, relevance to this problem, which calls essentially for the application of familiar principles of interpretation. The approach adopted in the Bennion case (note 30 supra), where the court inquired into the expectations of the parties as to what risks would be excluded exemplifies the point we are making. The court said: “The subject matter of the contract was a risk assured on the life of the insured by the Company, for a stipulated premium, and the use of the word war was obviously intended to denote a restriction or limitation upon the risk assumed. It is plain, therefore, that the definition given to the word war bears a direct relationship to the risk assumed… . Viewed in this light, it is also plain that when the parties used the word war, they had in mind the hazard to human life incident” (158 F. 2d at 265). Obviously, the hazard to life was not dependent on a situation of military violence being characterized as a “ w a r “ or “state of war.” This approach was adopted in the cases arising out of the Korean conflict starting from the Stanberry case (note 30 supra). In the Kawasaki Kisen Kabushiki Kaisha case (note 30 supra) the court refused to hold the steamship company liable for damages for canceling the charter-party under a clause authorizing such cancellation by either party “if war breaks out involving Japan.” The court held in effect that the contingency provided for by the parties had occurred, despite the fact that neither Japan nor China (in 1937) had issued formal declarations of war and that the two countries maintained diplomatic relations with each other. Again, the risk that the parties sought to provide against did not depend upon the presence or absence of “animus belligerendi” in either or both countries. The Master of the Rolls said: “ I am unable to accept the suggestion that there is any technical meaning of the word ‘war’ for the purpose of the construction of this clause… . It seems to me that to suggest that, within the meaning of this charter party, war had not broken out involving Japan on the relevant date is to attribute to the parties to it a desire to import into their contract some obscure and uncertain technicalities of international law rather than the common sense of businessmen.'’ In the Spanish Government case (note 30 supra), Lewis, J., did say that the word “blockade” in a clause to the effect that the vessel would not be bound to proceed to “blockade ports,” was used in its “strict legal sense.” However, regardless of whether a “strict legal sense” or some other sense was to be imparted to “blockade,” the court explicitly found that the risk provided against never materialized, that the announced intention of the Franco Government to blockade certain ports was never carried out, and that there was no greater danger or risk of interference with British vessels after the Nationalist announcement than before.

33 Goodrich and Simons, The United Nations and the Maintenance of International Peace and Security 364-365 (1955), point out that this was an important reason for postponing action by the Security Council under Art. 39 of the Charter in the Palestine case, and for the delay in the determination by the General Assembly of the commission of aggression by the Peoples’ Republic of China in the Korean case. Cf. on the point made in the text, Wright, , “The Prevention of Aggression,” 50 A.J.I.L. 514 at 516 (1956);Google Scholar and Lauterpacht, op. cit. note 4, supra, at 55, 59 (on the Manchurian incident of 1931).

34 On the case of Czechoslovakia, see Survey of International Affairs, 1938, Vol. 3, pp. 247-288 (Royal Institute of International Affairs, 1953); on the occupation of Denmark, see “Hitler's Europe,” Survey of International Affairs, 1939-1946, p. 519 et seq. (Royal Institute of International Affairs, 1954).

35 See Grob, op. cit. 293-294, and Kotzsch, op. cit. 248-250; see also “The War and the Neutrals,” Survey of International Affairs, 1939-1946, pp. 114-136 (Eoyal Institute of International Affairs, 1956).

36 We have, for the purpose of economy in expression, spoken of “ the “ public order of the world community. It is a fact of contemporary international life, however, that there is no single world public order as such, or a single conception thereof. There appear, rather, competing demanded conceptions of world public order and of international law, some of which are compatible with the postulated goal of wide sharing of values while others are not. See, e.g., Stone, op. cit. 57-64; Kunz, , “Pluralism of Legal and Value Systems and International Law,” 49 A.J.I.L. 370 (1955);Google Scholar Wilk, “International Law and Global Ideological Conflict: Reflections on the Universality of International Law,” 45 ibid. 648 (1951); Schwarzenberger, “The Impact of the East-West Rift on International Law,” 36 Grotius Society Transactions 229 (1950); Smith, The Crisis of the Law of Nations, Ch. 2 (1947). On the Soviet conception of international law, see, e.g., Hazard, Law and Social Change in the tU.S.S.R., Ch. 11 (1953) ; id., The Soviet Union and International Law 189 et seq. (1950); Soloveitchik, , “International Law as ‘Instrument of Politics,’ “ 21 U. of Kansas City Law Rev. 169 (1953);Google Scholar Kulski, , “The Soviet Interpretation of International Law,” 49 A.J.I.L. 518 (1955);Google Scholar Schlesinger, Soviet Legal Theory, Ch. 10 (2nd ed., 1951); Taracouzio, The Soviet Union and International Law (1935); Kelsen, The Communist Theory of Law (1955). On the Nazi German conception of international law, see Preuss, , “National Socialist Conceptions of International Law,” 29 Am. Pol. Sci. Rev. 594 (1935);CrossRefGoogle Scholar Gott, , “The National Socialist Theory of International Law,” 32 A.J.I.L. 704 (1938);Google Scholar and Florin and Herz, “Bolshevist and National Socialist Doctrines of International Law,” 7 Social Research 1 (1940).

37 It is somewhat difficult to follow Professor Stone's position when he says that the 1907 Hague Convention III “lacks any substantial modern function” (op. cit. 309, note 66), considering that he follows Lord McNair in assigning the time stated in a formal declaration of war (when made), or the time of its communication, as “the moment of its (war's) legal commencement” (ibid. 310). It is true, however, that the Convention is pointless insofar as the prevention of surprise attacks is concerned; for the period of time between the communication of the declaration or ultimatum and the beginning of hostilities was left undetermined, such that even an infinitesimal space of time would apparently satisfy the requirement of “previous warning.” See Hall, op. cit. note 3 supra, at 451-452. Westlake, op, cit. note 2 supra, at 267, noted that a “very moderate proposal” of a 24-hour interval made by The Netherlands’ Delegation to the Conference of 1907 was rejected; contrast this with the fact that during the days of the ancient jus fetiale, provision was frequently made in declarations that hostilities would not begin till after 33 days (See 2 Phillipson, The International Law and Custom of Ancient Greece and Borne 200 (1911)). In our own age when rocket missiles and artificial satellites travel at velocities measured in tens of thousands of miles per hour, it would seem somewhat optimistic to suggest, as Professor Castrén does (op. cit. note 2 supra, at 99), that a “time of grace” or an “intermediary period” should be given in the future. For the possible uses of a declaration of war in contexts other than the conduct of hostilities, see Eagleton, , “The Form and Function of the Declaration of War,” 32 A.J.L.L. 19 (1938).Google Scholar

38 For further indication of what we refer to as “the values of a free society,” see McDougal, op. cit. note 21 supra, 82 Recueil des Cours at 188-191 (1953); Dougal, Mc and Leighton, , “The Eights of Man in the World Community: Constitutional Illusions versus Rational Action,” 59 Yale L.J. 60, 60-72 (1949).Google Scholar See also, generally, Lasswell and Kaplan, Power and Society (1950); Lasswell, Power and Personality (1948); and id., “Political Power and Democratic Values,” in Kornhauser (ed.), Problems of Power in American Democracy 57-82 (1957).