Tuesday, May 02, 2006

What might blogosphere legal scholarship look like? A sample proposal: The intersection of method and politics in international law

Like many other lawprof bloggers, I have been following with great interest the Harvard law prof blogging conference, including its papers and presentations. I posted some early, quick reactions here. I have been particularly struck by the question of how, if at all, blogs might enter scholarship or exhibit forms of scholarship and how scholarship would thereby be changed and so on. People have mentioned the emergence of short form blog scholarship. Others have mentioned examples such as Larry Solum's hugely useful Legal Theory Lexicon.

I want to raise one that, for other scholarly reasons, I have been pursuing in the area of international law scholarship and which, for practical reasons I discuss below, seems to push of its accord to blog and wiki formats ... but let me start briefly (this being a blog and all) with the substance of the project, and let it carry it toward form. Bear in mind this all blogging, first draft stuff.

For many years now, I have been fascinated by watching the evolution of method in international law scholarship. A gradual change over the course of the last fifteen or so years? A more abrupt generational shift? Hard to say definitively. The most important shift has been the movement to bring international relations and international more closely together as disciplines. This has meant in part the entry of empiricist and rationalist methods into a field of international law traditionally set within a normative framework - the framework of idealism defined by Henkin, Franck, and Koh, for example. The emerging generation of international scholars in the United States is far more comfortable than the one before it with law and economics paradigms applied to international law, rational choice theory, game theory, etc.

In part this is the drawing of international relations methods into international law scholarship. This perhaps owes more to Anne-Marie Slaughter's indefatigable efforts over years than to any other factor. But it is not simply the movement of international relations theory into international law theory. It is also, separately, the turning of attention by legal scholars in law and economics to a hitherto neglected field of law, international law, and applying law and economics insights to this field of law. Scholars such as Eric Posner come to mind here. There are other methodologies apart from the rationalist approaches - empiricism such as that pursued by Oona Hathaway in her celebrated human rights compliance article. Or the intellectual history, the sociology of the profession of international law, pursued by Martti Koskenniemi in his two books (the latter one especially).

Anne-Marie Slaughter and Steve Ratner explored the shifting nature of method in international law scholarship in a symposium in 93 AJIL 1999. Although now a few years old, it remains vital reading in this area. I found myself stimulated enough to consider writing on method specifically after reading Koskenniemi's book and, very recently, after participating in a symposium last October 2005 at the University of Georgia on Jack Goldsmith and Eric Posner's The Limits of International Law - I have a post about that conference and my contribution to it, here. The full set of papers, including a very interesting response - going to this generational shift in international law scholarship - by Jack and Eric, at 34 Georgia Journal of International and Comparative Law (I believe most of the papers have been posted to SSRN).

The symposium at UGA was small but featured a number of leading intellectual lights of international law scholarship of the rising generation. I was struck by the fact that although sharply, sharply critical of Jack and Eric's book - on both methodological and substantive groounds - without exception they were accepting of the basic methodology in the book, the claim that international law scholarship needed to absorb the basic methods and insights of rationalism and social science. International law scholarship needed to become an enterprise of social science and not, as Jack and Eric astutely note in their response, the articulation in international law of a "Whiggish view of history."

The question of method in international law scholarship, of course, is a vast topic. But my interest is actually slightly different - in a way that both broadens and narrows the question. Is there some way to describe the intersection of method and substantive politics in international law scholarship? By substantive politics, I mean, on the one hand, the commitment to a politics of democratic sovereignty found in Jack Goldsmith's writings and, on the other hand, the commitment to a politics of liberal internationalism found in the writings of Henkin, Franck, and Koh. I have many questions about this intersection. Are method and substantive politics independent variables? Or do certain methods imply certain politics or vice-versa? How might one describe the various methodological positions, on the one hand, or the various political positions - can each be put, in some way however loosely done, on a line? Or are the positions in each instance too heterogeneous to be captured on a continuum?

You can probably see where I am going with this.

I wonder whether it is meaningful, even in a very conceptually loose way, to try and give a spatial representation of method and politics in international law scholarship, in a way that would provide a grid on which at least some participants in the enterprise could locate themselves. Imagine, for example, that you assume that these are two independent variables, and further imagine that you could locate the leading positions on two axes. Vertical axis - method - with, say, normative and idealist and moralist methods at the top and rationalist and descriptivist methods at the bottom. Horizontal axis - politics - with, say, sovereignty positions on the left and liberal internationalist positions on the right. Someone like Louis Henkin would be located in the upper right hand quadrant - normative methodology, liberal interationalist politics. Someone like Jack Goldsmith would be located in the bottom left hand quadrant - rationalist methodology, democratic sovereigntist politics. Someone like - maybe - Oona Hathaway might be located in the bottom right hand quadrant - rationalist or at least descriptivist methodology, liberal internationalist politics. And I suppose I would be located in the upper left hand quadrant - normative methodology, democratic sovereigntist politics.

The complexities could easily sweep away the value of the spatialization, of course. What happens if you think that the variables are not each independent? Maybe you simply can't put the leading positions on axis lines - maybe they don't relate to each other in that way.

Maybe we need to add a third position, a third axis. Perhaps we need to locate positions also along an axis of realism and idealism, in the traditional IR senses of those terms. Or perhaps a different kind of "methodological" axis - one which locates in terms of the kind of theory used - political theory, legal theory, social theory - but then what order, if any, makes sense on a line for such concepts.

I am, in other words, quite open to the possibility that the spatial axes don't make sufficient sense to be able to treat them as axes. Still, I propose to follow out the thought, because there is something intuitively attractive about locating the four positions I outlined above spatially - it makes a certain kind of sense.

Now my point about blogging and wiki scholarship. It occurs to me that this kind of project - a spatial mapping project - if you thought its fundamental terms and axes made sufficient sense - would be a good bloggership project. Sure, you can write a law review article making the arguments about how to spatialize these terms, and debating about whether it makes any sense to do so - and, yes, I am working on a short article on that theme. But if you think you have a decent model to try out, then instead of simply arguing as "the" author, this is where so and so, or so and so, and so and so, fits within the model, well, perhaps one should put it up as a wiki, or a supervised wiki, or some form of Web software that allows international legal sscholars to say where they think they fit and why or why not. In some sense it is like taking an online survey, asking people to self-identify. A savvy law review - the international law review at my school, for example - might offer to host the site and do the upkeep. A blog could be attached, and so on.

Okay, that's my proposal for what an example of blog based scholarship might look like. I'm working on it, slowly. And it might result that participants agree that the conceptualization of the axes need to change, or finally conclude that the conceptualization doesn't work. But for a project that seeks participants in the field to locate themselves theoretically, then the feedback mechanism of blogs and wikis appears to be a good way to frame it as scholarship.

Maybe, maybe not.

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