Mary L. Dudziak, University of Southern California Law School, has published Unlimited War and Social Change: Unpacking the Cold War's Impact as USC Law Legal Studies Paper No. 10-15, and as a chapter of War TIme: An Idea, Its History, Its Consequences (Oxford University Press, 2012). Here is the abstract.
This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within this framework, viewing war as exceptional. This conception of war does not capture the predominant nature of American war, at least since World War II, characterized not by cataclysmic battles and great military victories, but by “small wars,” surveillance, and stalemate.
The ambiguity of the Cold War might have signaled that the conventional categories no longer fit – that wartime and peacetime coexisted or had melted together. But rather than viewing the Cold War years as rupturing the older categories of war and peace, contemporary thinkers find ways to fit the experiences of that era into pre-existing conceptual boxes. The Cold War becomes for some writers a “wartime,” complete with a dramatic ending.
This paper examines historical and contemporary thinking about the Cold War. Turning to scholarship on war and rights, my focus is not on the way particular rights or lines of case law develop, but instead on the way writers conceptualize the world within which rights are framed. Ultimately I argue that a wartime frame persists in our thinking about the Cold War, and this obscures our understanding of the impact of war on domestic law and politics. It reinforces the idea that war is a discreet historical experience, and that “peacetime” is the norm, when instead ongoing limited war has become the American experience. The years of the Cold War are one moment in a longer pattern of ongoing war.
NOTE: This chapter has been significantly revised, but the revised version is not posted. The book is scheduled for publication in January 2012.Download the paper from SSRN at the link.