Saturday, November 04, 2006

The false academic divide between international public and private law, and the imperative to include international development in that curriculum

Although this blog is mostly about international public law matters, ethics of war and just war, and, well, idle chit-chat, my teaching as a law professor is actually in the areas of business and international business. I ordinarily teach international transactional business courses.

These days I normally teach international business transactions - which I've very happily taught at WCL for the past ten years - corporate finance, and private equity-venture capital (which some years is a general private equity class and other years, depending on other course offerings, specialized in international and cross border private equity). I used to teach the standard business organizations class and the basic nonprofits course, but I haven't done either for a couple of years now.

My fourth class varies greatly from year to year. Sometimes it is a class in international development issues, such as microcredit and development finance. That class draws on my experiences as board chair and counsel to the Media Development Loan Fund, a nonprofit private equity fund that invests in objective and independent media in the developing world, as well as my academic work on both international NGOs and international development finance.

Sometimes it is a class on advanced nonprofit business entity issues (not so much tax, as we were privileged to have the basic nonprofit course taught by a WCL alum and former IRS exempt organizations head) - the nonprofit as a form of business organization and the anomalies created by having a business organization that does not have a profit motive. (The conceptual basis of the nonprofit enterprise, is utterly fascinating from the economic, rational choice, history, sociology - all of it is unbelievably interesting. If I weren't so busy doing it daily in my pro bono work and busy writing on NGOs as part of the international global governance debate, I would and should write about it.)

Sometimes I teach a seminar on just war ethics and the laws of war - Walzer, James Turner Johnson, the moral basis of the laws of war, etc. I have a book ms in very slow progress, a restatement and reconsideration of just war theory. (For the last couple of years, I have been volunteering to teach a course in just war theory - a sort of stripped down version of my law course - to seniors at the National Cathedral School, where my daughter goes to school, and St. Albans, the associated boys school. The high school students have been some of the best students I have had in these areas - they do not know, naturally, the details on very many wars - although they have been taught the history of the Peloponnesian War, the Civil War, and the Second World War very well - meaning that we have within our grasp Thucydides, Lincoln, and Churchill. The subtlest readings I have ever had articulated in a class anywhere (including Harvard, Columbia, Fordham, and WCL law schools, with apologies to all my students there) on the ethics of war in Lincoln's Second Inaugural Address have come from students in that class, and remarkably enough, two of them then-mere sophmores with amazingly well-honed abilities to find different glosses in Lincoln's phrasings (Ann A, Austen K, and Brooks S - all currently undergrads at Yale).)

Sometimes that fourth class at the law school is a class on some highly technical aspect of the laws of armed conflict - proportionality, for example, or targeting rules.

Last spring I taught a seminar on global governance and UN reform, as I had just been deeply involved in a US Institute for Peace study of UN reform (all this part of a short book project that should have been done a while back on global governance and the UN).

Does anything besides my catholic interests link these teaching areas?

Well, I realize it runs against the specialization of international law scholars in today's academy, but I think there should be room for scholars who consciously seek to bridge the academic divide between international public law and international private, economic, business, and finance law. In my own mind and work they are both seamless parts of the study of globalization, and in that sense can benefit from being pursued together. As aspects of the study of globalization, this seems like a very contemporary way of viewing private and public international law on a single continuum.

Yet in fact the "continuum" also harks back to an older model of academic international law - the generation of my great professor, mentor, and friend Henry Steiner and my dear friend Detlev Vagts, both of whom thought there was nothing strange in teaching and writing and creating casebooks on international transactional law, while writing and teach on human rights and other public law topics. In the generation that followed them, a much greater specialization occurred among scholars, and I think there is something lost, as well as gained, in the specialization.

Am I right in believing that among the newest generation of international law scholars, there is a coming together of private and public law topics, a tendency to see them as all aspects of globalization? In this there is a peculiar bridging role played by trade law, which is public law in one sense but about global markets in another. When I say 'seeing public and private law topics as a single continuum in the study of globalization', trade law is not precisely what I have in mind, because drawing conclusions from trade law and trade organizations such as the WTO about the whole matter of globalization and international law - whether in the public law direction or the private transactional direction - can be quite misleading.

The reason, of course, is that trade law, while public law, is about a set of economic concerns that, while hugely important to global and national prosperity, are not typically "existential" issues for nation-states in the way that security issues are. Yet many of the most visible and most contentious issues of public international law are indeed about war and peace, the use of force, security issues, and everything that goes along with that. Drawing conclusions about how nation states behave in the security arena (broadly construed) on the basis of how they behave in game-theory of international trade rules is highly questionable.

The other area that has a marked tendency to be left out of account in the international law curriculum is international economic development. I understand that this is subject to the objection that there is not that much "law" to teach in the area of international development, and such law as there is derives from public law and human rights - social and economic rights, rights to development, etc. I understand that others have strong reasons for approaching these questions from the rights perspective, but my point here is somewhat different. My own experience, both as a practitioner in the field as well as teacher/scholar, suggests that development work is equally well-considered as a matter of business, finance, rational choice theory, a peculiar species of foreign direct investment, and law and economics in the matter of how aid is provided, used, and its outcomes. It can be approached as business law, with huge benefits.

Much of basic IBT, after all, is essentially teaching students the structures of fundamental transactions - sale of goods, provision of services, payment mechanisms such as letters of credit, international licensing, and so on - every single one of these plays a significant role in the increasingly sophisticated world of international development and development finance. I have long found that teaching examples of these transactions developed in the context of the world of development are often very compelling for students, who are interested in it as a policy matter - and additionally because the risks in such transactions in the developing world are often much more visible to students because of the political and legal risks of the situation. (For example, here is my final exam in IBT from last year, which focused on conflict diamonds and financing post-civil war reconstruction in Africa - and yet was a financially sophisticated finance question.)

At bottom, though, I grant that I am making a moralistic plea that international development not be invisible in the international law curriculum. But if you see international legal studies as, today, really the study of contested issues in globalization, then it makes reasonably good sense to say that globalization includes private transactional business issues, public law security and related world order issues, bridging public-private regimes such as trade - but also the moral question of the universalizing of globalization, ensuring that its benefits flow to the world as a whole, including the very poor. In that case, the study of development is a necessary part of the whole.

(This argument linking development and universalizing the moral claims of global markets is partly drawn from an article of mine on microfinance and globalization, here.)


Patrick S. O'Donnell said...

Well argued. I absolutely agree with you (as a non-expert on the outside looking in with an ardent interest in such things). I suspect the nomenclature: 'private law,' gets in the way a bit here as well....

Anonymous said...

Yes the private law will and does get in the way. mortgage man

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