The Judge and the Drone

Among the most characteristic issues in modern jurisprudence is the distinction between adjudication and legislation. In the some accounts, a judge’s role in deciding a particular controversy is highly constrained and limited to the application of preexisting law. Whereas legislation is inescapably political, adjudication requires at least some form of impersonal neutrality. In various ways over the past century, theorists have pressed this conventional account, complicating the conceptual underpinnings of the distinction between law-application and lawmaking. This Article contributes to this literature on the nature of adjudication through the resuscitation of a structuralist mode of legal interpretation. In the structuralist view, the distinction between adjudication and legislation has little to do with so-called neutral law application and political lawmaking. At the same time, and perhaps surprisingly, structuralists do not assume that adjudication is wholly subjective either. Rather, structuralists view judicial practice as at once constrained and discretionary, emerging only in the navigation of the syntactic and tropological structures of legal language. The judge is certainly free to speak the law in myriad ways, but just as critically, the particularly legal forms in which the judge may speak are always limited by the language of law itself. In order to demonstrate this structuralist mode of legal interpretation, I apply it to an emerging and hotly debated field of law known as the law of killing. Within international law’s rules regulating the use of force, the law of killing is most commonly associated with the legality of drone strikes in the context of the U.S. Administration’s ongoing fight with al Qaeda and “associated forces.” Structuralism does not help us figure out whether drone strikes in any given instance are legal. But it does help us understand the patterns of legal reasoning that assist in giving certain strikes a gloss of legal necessity, as well as those patterns that do not.