The Intelligence Function and World Public Order
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1 Yale Law School Yale Law School Legal Scholarship Repository Faculty Scholarship Series Yale Law School Faculty Scholarship The Intelligence Function and World Public Order Myres S. McDougal Yale Law School Harold D. Lasswell Yale Law School W. Michael Reisman Yale Law School Follow this and additional works at: Recommended Citation McDougal, Myres S.; Lasswell, Harold D.; and Reisman, W. Michael, "The Intelligence Function and World Public Order" (1973). Faculty Scholarship Series. Paper This Article is brought to you for free and open access by the Yale Law School Faculty Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship Series by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact
2 TEMPLE LAW QUARTERLY 1973 TEMPLE UNIVERSITY OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION VOL. 46 NO.3 SPRING 1973 THE INTELLIGENCE FUNCTION AND WORLD PUBLIC ORDER Myres S. McDougal * Harold D. Lasswell ** W. Michael Reisman *** The intelligence function comprises the gathering, evaluation and dissemination of information relevant to decision-making, and may include prediction based on such information, as well as planning for future contingencies. In short, intelligence involves the acquisition of information and planning in exercise of all five of the intellectual tasks required of decisionmakers. 1 The relation between the intelligence function and community goals is particularly subtle: although intelligence operates within the frame of authorized goals, one duty of effective intelligence is to appraise these goals in the context of knowledge *Sterling Professor of Law, Yale Law School. ** Ford Professor Emeritus of Law and the Social Sciences, Yale Law School. *** Professor of Law, Yale Law School. This paper represents a chapter in a larger study being prepared by the authors under the title WORLD CONSTITUTIVE PROCESS AND PUBLIC ORDER. Earlier chapters have been published as Theories About International Law: Prologue to a Configurative lurisprttdence, 8 VA. J.LL. 188 (1968), and The World Constitutive Process of Authoritative Decision, 19 J. LEGAL Eo. 253, 403 (1967). The authors reserve all rights. 1. A number of political scientists have become increasingly concerned with complex organizations as circuits for the delivery of information. For a prominent example, see K. DEUTSCH, THE NERVES OF GoVERNMENT: MODELS OF POLITICAL COMMUNICATION AND CONTROL (1966). To an even greater degree, general systems analysis is concerned with the organization and delivery of information. See, e.g., D. EASTON, A SYSTEMS ANALYSIS OF POLITICAL LIFE (1965). On intelligence in complex organizations, see H. WILENSKY, ORGANIZATIONAL INTELLIGENCE: KNOWL EDGE AND POLICY IN GOVERNMENT AND INDUSTRY (1967). While our work draws on many of the insights of these approaches, our thrust is fundamentally different. We are concerned with authoritative decision; our interest in intelligence derives from the dependence of rational decision on knowledge. Our task is to identify the optimum procedures for gathering, processing and disseminating intelligence for constitutive and public order decision; to note divergences from optimum procedures and constellations of conditions that account for such divergences; and to propose alternatives. The configurative focus on decision subjects intelligence objectives to constitutive decision goals. Some relevant perspectives are sketched in Mayo & Jones, Legal-Policy Decision Process: Alternative Thinking and The Predictive Function, 33 GEO. WASH. L. REv. 318 (1964). (365) HeinOnline Temp. L.Q
3 366 TEMPLE LAW QUARTERLY [Vol. 46 and, where appropriate, to bring new attention areas, for the purposes of goal clarification, to the focus of decisionmakers. Intelligence is a critical function at all levels of decision-making, yet its very ubiquity seems to have obscured it from visibility to scholarly inquiry. There is no dearth of historical examples demonstrating the critical importance of reliable intelligence. Kautilya emphasized to would-be leaders the strategic advantage of knowing the enemy's plans,2 Joshua used it wisely, if somewhat dogmatically, and Napoleon put the theory to use with devastating effect. Both Stalin and Hitler, in our own day, have shown that the utility of the most accurate and timely intelligence depends upon a decisionmaker capable and willing to use it. 3 For the individual human being, rational and realistic behavior is an interaction between explicit or implicit goals and a constant flow of information about the environment, directly from without as well as indirectly from "memory loops," all codified, synthesized and decodified in complex electro-neural processes. The importance of intelligence for goal realization at the community level is readily observable in every value process. In power processes, it is obvious that strategic planning and operations rest upon knowledge of the environment as well as on some indication of adversary plans. In the wealth process, intelligence is a quantifiable product: advance knowledge of events created the Rothschild fortune and "insider" knowledge is daily exploited in bourses about the world. In skill processes, flows of reliable detailed knowledge are equally critical. The same applies to community involvements in the shaping and sharing of well-being and of every other valued outcome. For authoritative decision-making and execution, the need for intelligence permeates every facet of decision. Promotional activities are undertaken on the basis of intelligence about perceived interests and prescriptions facilitating their realization. The formulation, content and modality of promulgation of prescriptions are all based upon intelligence estimates of public order need and procedures for maximum effectiveness. The invoking of prescriptive norms depends on intelligence about a threatened or actual breach. The applying function is undertaken on the basis of intelligence estimates of the alternative 2. THE KAUTILYA ARTHASASTRA (Kangle ed. 1960). For a historical perspective on the integration of clandestine intelligence in the legitimate diplomatic process, see C. CARTER, THE SECRET DIPLOMACY OF THE HABSBURGS, (1964) especially at S. KENT, STRATEGIC INTELLIGENCE (1949); C. FRIEDRICH & Z. BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AUTOCRACY (1956). And see CONDITIONS, p. 428 infra. HeinOnline Temp. L.Q
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