Friday, October 27, 2006

Intervening militarily in Darfur compared with Iraq

A few days ago former Clinton senior national security staffer Susan Rice (likely headed for an even higher post in a future Democratic administration) was on some NPR talk show discussing the question of intervention in Darfur - military intervention of some kind. Rice was in favor, although vague on the details. On the other side was Eric Posner, law professor at the University of Chicago.

Rice adopted in effect a robustly idealist position, based in large part around the emerging ideal of the "responsibility to protect" - the norm that outsiders have an obligation to intervene to prevent such large scale human rights failures as genocide, crimes against humanity, etc., even if it means violating state sovereignty. It is one of those claims which divides US conservatives, in particular - neocons or, more broadly, idealists in foreign policy, including myself, Tod Lindberg, and other tend to support it. Realists - Eric Posner is prominently one - tend to oppose it. Lee Feinstein of the Council on Foreign Relations (and no conservative) has written an exceptionally good public report on the responsiblity to protect.

What interests me about Rice's position is to ask what, if anything but a horror of the label, separates it from dread neoconservatism. After all, neoconservatism in foreign policy has been correctly described as a willingness to use force for moral purposes, with a faith - misguided, many would say in the wake of Iraq - in the ability to use military force for the good. Well, Rice might reply, there are two differences at least.

The first is that the use of force we contemplate is multilateral - perhaps even the "realistic Wilsonianism" multilateralism that Fukuyama, Beinart, many Democratic Party worthies champion. It will not be, in other words, the foolish Iraq neoconservative intervention that lacked support in the international community but which was merely American unilateralism (not precisely an accurate statement but widely believed). Our intervention will be a coalition of nations backed by the will of the international community.

Is that true, however, if it were to come about? It is very unlikely that China would waive its opposition to Security Council action for forcible intervention in Sudan, either on its general hard sovereignty foreign policy position or its virtual renting out of its SC veto for commercial purpose, as in Sudan oil. The opposition of the General Assembly, consisting of the G77, the Islamic conference, and other folks who would reflexively support Sudan, is stronger still. So that means that the "international community" in this case comes down to NATO plus a few others. For many who describe themselves as "multilateralist," that is all they really mean - in practice, the support of France, Germany, and Western Europe. Multilateralism of essentially twenty countries that matter out of the 196 or so in the world. So if it is "multilateral," it is really only mini-multilateralism.

And for that matter, although Rice stresses the multilateral part, many of the folks gung ho on Darfur intervention believe that the US should simply form a coalition of the willing - shades of Iraq, anyone? - and intervene because the moral grounds demand it no matter who comes along or not. It is a moral imperative - and I must say that the difference between that position among liberal activists and neoconservatism is thin to nonexistent.

The second difference, it might be argued, between this kind of liberal interventionism and neoconservatism is that the intentions are different. In Iraq, the US intervened, it might be argued, essentially for its self-interest - oil, for some, preventively on the question of WMD for others (even if mistakenly, in the peformance). In Darfur, the US is intervening as liberals have long urged - for altruistic reasons alone, without interests, America the pure in the way that Albright always dreamed.

There are two problems with this second position. The first is that with roughly the same force and strength that the left constructed "interests" of the United STates in intervening in Iraq - oil, WMD, hegemony, etc. - one could just as easily construct "interests" for a US intervention in Sudan - oil, to start with. And mark that much of the world would see it in precisely that light - not a struggle of good and evil over genocide, but a struggle between the US and China, the hegemon and its rising challenger, over global energy supplies. In any case, the neocon case for war in Iraq was only made out late in the day as an interested preventive strike against WMD; during the earlier debate, it was made out on grounds as idealistic about eliminating a genuinely and unquestionably evil dictator, Saddam, as is now made out about genocide in Darfur. One has to be very much "inside" the idealist moral debate to see much difference between the former idealism and the latter one; anyone from the outside, looking as a realist or even simply as an outsider to highly refined Western human rightsism morality, would be hardpressed to see a difference. Both would look like idealist crusades, subject to essentially the same pitfalls.

Thus the second problem with the altruistic intent position is that it is, on the newly minted liberal-realism account of things, precisely what led the neocons into error on Iraq. Looking at Iraq through the rosy colored spectacles of the purity of their own intentions - this is Beinart specifically, but many others also - and having humility stripped away by moral hubris, neocons believed that their clean hands and pure hearts would, by themselves, lead to victory in Iraq. Purity of intention led to a massive miscalculation as to what people in Iraq wanted - we thought, liberal democracy, they thought, Islamic democracy dominated by my sect, tribe, ethnic group.

Precisely the same conflation of intentions purifying the path to victory awaits in Darfur, it might be thought. The neocons, according to Fukuyama, believed that their own goodness would overcome the tendency of grand social engineering projects (and this was also a tenet, but an ignored one, of neoconservatives) to produce unanticipated bad consequences. The same awaits in Darfur, or at least one who has taken on board the liberal realist critique of neoconservatism might be forgiven for so thinking.

One way that this tendency to substitute pure intention for reality might be found in Rice's suggestions for military action. She proposed, in the NPR interview, the imposition of a no-fly zone, or simply the destruction of the Sudanese airforce, including the helicopters that have supported the village slaughters, if the Sudanese government does not accept outside protecting forces. Military force would be used, as she said, to cause the Sudanese government pain, in the model of how Nato casued Milosevic pain in the Yugoslavia conflicts. But this strategic view has some grave weaknesses that, through the haze of good intentions, become invisible. The most important is that the Milosevic pressure situation is really very special. Strategically, much more likely is that the destruction of the Sudanese airforce does not lead to capitulation, but instead finding low tech means of doing the same thing. And the low tech solution becomes entrenched and much more difficult - impossible, even - to root out. Gradualism, gradual escalating of pain to a regime on the assumption that it will make rational decisions to capitulate, has not been a favored theory since McNamara's failure with it in the Vietnam airwar.

On the contrary, the favored view has been that of Powell and many others, that you prefer an enemy to fight with semi-high tech systems which are quickly overcome - if you proceed gradually, the enemy adjusts and, in adjusting technology downwards, makes it very difficult to combat. Only Wesley Clark, because of his experience in the very special Kosovo conflict, and former Clinton administration officials, seem to think any differently. Take away the Sudanese helicopters and it is very possible that they will discover that they can do genocide quite effectively without them - whereas if one had chosen a war of rapid and overwhelming force, they would not yet have had means of asymmetric warfare in place. And, of course, there are good reasons to believe that once the formal army is knocked out that, just as in Iraq, asymmetric forms of warfare, guerrilla warfare, terrorism, will spring up to sap the will of the outside forces.

In addition, if one goes beyond air war to ground war, even using coalition forces - there is no reason in principle why they are not subject to many of the contingencies that occur in Iraq. The force to space ratio is horrrendous; it is far from clear how the relatively small amount of troops that would be available for a very large space indeed would control that space. Many of the problems that beset the US in Iraq would find, if not precise equivalents, imprecise ones and analogies in seeking to act in Darfur. It is a significant mistake to duplicate the neocon error in Iraq and think that purity of intention and perception of moral goodness can substitute for a dispassionate and realistic plan on the ground - including the possibility that, genocide notwithstanding, there is no military option that would be acceptable to outsiders in terms of its costs. After all, that is essentially what we have accepted with regard to North Korea, largely on account of the risks of war to Seoul. Nowhere is it written in the sky that if you have good intentions and genocide to stop, there is a strategic plan that will succeed for you.

I say this as someone who is in fact committed to the responsibility to protect and action, with or without the so-called international community, with military force if necessary, to end the genocide in Sudan. Does that make me, as a sort of conservative, a neocon? Don't know and don't care. But liberals who think that they can see many and profound differences between their idealist position on Sudan and the neocon case for Iraq might consider that even if they are right that there is a deep moral difference between the two, operationally they suffer from many of the same difficulties. Gradualism runs the risk that the regime will discover far too soon (within a military paradigm) that it can get along without helicopters and many other things, and it assumes that regimes act rationally in response to pain by giving in rather than making other adjustments. Having too few troops in a vast country is practically guaranteed by the free-riding politics of an international community that specializes in insincere promises as a form of game theory - heck, it was practically guaranteed by politics even within the United States with respect to Iraq.

Anyone prepared - as I am - to use force in Sudan had better also be prepared to live with unexpected consequences that have their own (admittedly broad) analogues to Iraq - the possibility of ever wider civil war, even the breakup of the country, the uncertainties that Clauswitz, or for that matter Lincoln, noted go with war. There can be no assuming that the consequences of the use of force can be channeled as we desire, just because our hands are clean and our hearts are pure, any more than they have been in Iraq. I saw no indication that Susan Rice is prepared for that at all. And anyone contemplating the use of force in Sudan had better understand that the difference between this form of muscular liberal idealism and neoconservatism is far, far thinner than current political debates would have you believe.

Saturday, October 21, 2006

My WSJ review of the writings of Swiss playwright Friedrich Durrenmatt

I first discovered the writings of the Swiss playwright and novelist Friedrich Durrenmatt in ninth grade high school German class, reading first The Visit of the Old Lady and later The Physicists. I loved the tragi-comic irony of Durrenmatt's 1950s and 60s plays, and in later years I read his novels off and on. I've read his work since 1970; Durrenmatt has largely since disappeared here in the US and in the English language. (Actually, it has seemed to me that he might have been eclipsed somewhat even in Switzerland - I gave a lecture a couple of years ago in Switzerland, French-speaking part, to be sure, and made a point of quoting Durrenmatt, but so far as I could tell, my lawyer audience did not seem to have a clue who I was talking about.)

So it was a pleasure when the Wall Street Journal book review called, at Christopher Caldwell's lovely suggestion, to ask if I would like to review a new University of Chicago Press three volume selection of Durrenmatt's plays, fiction, and essays. It came out today, Saturday/Sunday, October 21-22, 2006, in the Pursuits section of the Journal, here (subscriber link). (The University of Chicago Press has set up a website on Durrenmatt, here - it's very good, worth a visit to find out more about this major post-war European writer.)

Mixed in with the discussion of Durrenmatt's aesthetics, I also make a comment about Swiss neutrality, and then the concept of "humanitarian neutrality" (I first took up this topic of humanitarian neutrality in an academic article, here). That brief comment in the review is this:

But of course Swiss neutrality has a powerful moral logic of its own, exemplified by the humanitarian efforts of the International Committee of the Red Cross. Humanitarianism, in short, may require neutrality as a condition of its very existence. But that hardly means that neutrality is the highest virtue, the most admirable moral position, in conditions of conflict.

While neutrality may make humanitarianism possible, it will always be a derivative virtue in a world containing evil, a deliberate and knowing suspension of moral judgment for the sake of moral good, such as the relief of suffering. But if evil is not to triumph, we cannot all be neutral. Someone must fight for what is right: If there is to be a Red Cross, there must also be a Churchill. The Swiss sensibility can be reluctant to acknowledge this imperative, and sometimes has been known to accept a lofty moral relativism as the highest good of all. Dürrenmatt himself was not entirely immune to this way of thinking.

(Update: Dean notes below in comments that I said Cambridge UP, not Chicago, in the original post. Apologies, brain on hold, was actually staring at the three volumes on my desk as I mis-blogged yesterday. Corrected in original post, and thanks Dean.)

Tuesday, October 17, 2006

Growing official attacks on UK multiculturalism ... am I prescient or what?

Following UK Leader of the House of Commons (and former Foreign Minister and Home Minister) Jack Straw's attack on Islamism and the Muslim "blackout" veil two weeks ago (Melanie Phillips' comments here; contra Straw, from the New Statesman, Ziauddin Sardar, here), and more broadly on the bad, bad policy of multiculturalism, UK polls show wide public support for his view, then this article in the Daily Telegraph by Denis MacShane, former Labour MP and foreign office official (thanks NRO):

At long last, the debate on Islamism as politics, not Islam as religion, is out in the open. Two weeks ago, Jack Straw might have felt he was taking a risk when publishing his now notorious article on the Muslim veil. However, he was pushing at an open door. From across the political spectrum there is now common consent that the old multicultural emperor, before whom generation of politicians have made obeisance, is now a pitiful, naked sight...Chinese walls in Whitehall prevented effective inter-departmental co-operation. The Home Office, in addition to allowing Hamza to poison the minds of a generation, refused to return to France Rashid Ramda, who was wanted for questioning in connection with the 1995 Paris Metro bombings – a foretaste of our own 7/7. I hated having to go on French television and waffle defensively at a policy of not extraditing this evil man. But the prevailing culture was to deal with religious leaders, not elected politicians. Whitehall sought the advice of friendly theologians from Cairo, or Muslim ideologues such as Tariq Ramadan. This denied political space to British citizens of Muslim faith, women as well as men...Some difficult politics lies ahead. It is bizarre that neither David Cameron nor Sir Menzies Campbell have spoken. At some stage, the metro-populism of Notting Hill will have to engage with the worries of British citizens who understand a problem long before Whitehall gets it. There is a new generation of British Muslims who want to engage in politics and reclaim the issues that concern their communities from religious-based outfits or those who see their task as importing foreign conflicts into domestic British politics.They must be encouraged before it is too late.

In my TLS review of Francis Fukuyama's book, After the Neocons, I discussed the issue of Islam and multiculturalism this way:

[D]emocratic regime transformation in the Middle East will not address the problem of Islamist extremism and terrorism, because they are phenomena not principally of the Middle East, but of Muslims in the West confronting the loss of identity. Even assuming that the transformative strategy managed to stabilize Iraq, [Fukuyama] argues, the social precursors of terrorism are not to be found there. They are drawn from places we cannot attack with military force – Hamburg, London, the Parisian banlieues. Thus the phenomenon of Islamist terror is not a regional, political or even sociological problem; it is, rather, the accumulation of individual psychologies, massed together in shared and yet still highly individual narratives of resentment, exclusion and the search for Muslim social and economic integration, and particularly Muslim middle-class integration, within European pluralist modernity. Even if the birthplaces of the 9/11 hijackers were Saudi Arabia and Egypt, this argument runs, their jihadist spiritual formation was in Western Europe. The Bush administration launched, on this account, a war that missed the point, targeting the wrong region and the wrong country.

[These observations] are a powerful prescription, in my view, for deep-seated ideological changes in Western societies and their states, though perhaps not the changes that Fukuyama has in mind. The changes they indicate the need for, I would argue, involve the explicit abandonment of the doctrines of multiculturalism in Western societies, doctrines that have so damaged and weakened them. They are an argument for a vigorous reassertion of traditional liberalism, above all its guarantees of free expression, even for blasphemy, and of a traditional liberal refusal to tolerate the intolerant. At some point, Europe and America will have to defend more vigorously – in the face of the cultural challenge of Islamism and other violent fundamentalisms, their broadly liberal inheritance (in America, liberal pluralism, to be precise, rather than liberal secularism, descended from European anticlericalism).

The core of that defence is a clear attitude to religious extremism. Islam – “moderate” Islam – must take its place alongside other religions. That is to say, it must dwell within the cage of tolerance, an iron cage that insists without apology that religions tolerate the liberal secular order of public life. Muslim communities in the West must know that the larger society will not compromise its demands that all respect the values of a liberal society; they must also know that they will be protected with force against the demands of extremists from within their own community.

I am skeptical that any long lasting debate is underway in Britain on these issues; I think the multicultural ideology has essentially won and is pretty much immovable in the UK. It is too deeply entrenched with leftwing ideology of anti-colonialism, resentment, and is also too deeply entrenched with political rent-seeking interests of various kinds. A country in which police now consult in some districts with local religious leaders on whether it is okay for them to go after a particular target on terrorism charges has pretty much lost the struggle for a neutral public sphere or the pretense of being a liberal state or society. It may call its multicultural sensitivity the gracious sensitivity of the majority for the sentiments of a minority - and no doubt at one point it was precisely that - but these days multicultural accommodation in Britain seems merely a poorly painted over best face put on ... fear.

Sunday, October 15, 2006

James Salzman's A short history of drinking water on SSRN

Jim Salzman, my old friend and colleague from WCL before he decamped to Duke Law School, has posted on SSRN a fascinating paper on the history of potable water.

I myself come to this topic by a roundabout means - the problem of potable water in war and armed conflict. It is widely understood that in most conflicts, vast amounts of the harm inflicted on noncombatants arises from the lack of safe water. Disease, thirst, and so on all arise within days of the shortage. The International Committee of the Red Cross has been working on various initiatives - but if you were to ask me to identify an area in which the US government could work well with the ICRC and others to come up with a combination of legal standards and technical/technological solutions, this would be it. But if your interest in water arises from war, then the general history of drinking water becomes irresistible, and that is what Jim has provided here, apparently as part of an on-going book project. I bet that it is a book with potential markets among a general audience - it's a pretty easy book to see on the general nonfiction shelves.

Anyway, congratulations to Jim on a terrific paper; here is the abstract and downloadable paper at SSRN:

From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies; a social resource, access to water reveals much about membership in society; a political resource, the provision of water to citizens can serve important communication purposes; and finally, when scarce, water can become an economic resource. As recent conflicts in developing countries make clear, managing and mediating these many facets of drinking water is no easy matter. Understanding a society's ability to provide clean drinking water to its citizens, examining how it recognizes the different natures of this vital resource, provides a unique prism on the society's organization, equity, and view of itself. In seeking to understand better how societies manage such a critical resource, this article considers three questions. How have different societies thought about drinking water? How have different societies managed access to drinking water? And how have these changed over time? These questions are, of course, interrelated. How we think of water, whether as a sacred gift or a good for sale, both influences and is influenced by how we manage access to drinking water. While not an obvious issue to us in 21st century America, management of drinking water as a resource - who gets it, when they get it, and how much they get - matters a great deal. Written for a symposium celebrating the scholarship of Carol Rose, this article synthesizes research to date from an ongoing book project on the history of drinking water. Using a case study approach, we journey on a wide-ranging geographical and historical tour, briefly exploring drinking water management in societies across five continents, from 5,000 years ago up through today. Along the route, we find that something as seemingly simple as drinking water washes clear a society's views toward the role of government, norms, and the market.

Friday, October 13, 2006

Muhammad Yunus wins Nobel Peace Prize for microfinance

Muhammad Yunus and the microfinance bank he founded, the Grameen Bank, today won the Nobel Peace Prize 2006. It was an award well deserved. I'm someone who does a lot of work in the microfinance and development finance area - I currently chair the board of the nonprofit media venture fund MDLF, which has emerged as financially the largest media assistance organization in the world - and like anyone else in the field, I have studied Grameen Bank closely and intensively. Yunus' contributions to the improvement of possibilities for poor have been very great, in large part because they point crucially in the direction of understanding the role of markets in improving the lives of the poor. Markets are not just for the benefit of the global middle classes and above. Indeed, the implications of his work for understanding the economic conditions of poverty have long made me think that he perhaps ought to have been awarded the economics Nobel (For that matter, I also thought that the Nobel prize in medicine ought to have been awarded to Heimlich of the Heimlich maneuver.)

My views on microfinance itself are somewhat complex, and are explored in an academic article from 2002 in the Yale Human Rights and Development Law Journal, here. It is a decent academic primer on the theoretical literature on microfinance, as well as expressing a somewhat complicated view about the relationship of microfinance to globalization and the global market system. There is some new, very good literature in the microfinance field, and I'll try to post about it later on.

So I applaud Yunus his Nobel Prize. Yet let me also add something important. I am not a starry-eyed worshipper of microfinance as a silver bullet in international development. If you read over my article, you'll see that I think has significant limitations. Some of them can be summarized as follows:

First, hard evidence that microcredit actually substantially shifts longterm household outcomes is not as easy to come by as you might think or hope. I strongly think it is in fact true, but if asked to show hard data to prove it, that task is much more difficult than you might have thought. And for ripple effects on whole communities, the hard data task is that much more difficult. The often-touted repayment rate is some indication of success of the program, but it is mostly an indicator of the success - survival, really - of the lending institution. It is not directly a measure of improvement of longterm household income.

Second, Grameen bank itself is not really a model of what microfinance has been said to mean among the most enthusiastic - the poor bootstrapping themselves out of poverty. The bank itself receives various subsidies, including indirectly from the Bangladeshi government. Moreover, the bank is one of the least transparent financial institutions I have ever studied. And the whole sector of microfinance worldwide is and has to be massively subsidized. That is not going to change - nor should it. The measurement of microfinance's success is not the fact that it requires subsidies, but that it produces outcomes exceeding those of any other available social investment policy at the household and community level.

Third, the microfinance model is gradually coming to be seen less as an income generation mechanism on its own - it is unlikely that it generates that much revenue - than as a technical training program to bring poor people into the market economy. As a financial resource, it is extraordinarily labor intensive; the repayment rates are impressive, but they do not take into account the monitoring costs that such repayment rates seem worldwide to require in microfinance - and when those transaction costs are taken into account, the business model requires massive subsidies. Those subsidies can be justified, but largely as a training and educational tool, not as finance. (This is counterintuitive, and very hard to do in practice - essentially operating as a genuine business, and requiring market discipline even within your subsidized environment, while at the same time being aware (sort of at the meta-level) that fundamentally your contribution is as much or more technical knowledge and assistance to people without real experience of money, markets, and credit institutions. It is hard to maintain business discipline institutionally if you know somewhere in the back of your mind that you are also, or mostly, an species of training or educational institution - it produces a difficult mismatch of expectations within NGO mission terms.)

Fourth, although in the first decades of microfinance, the vision was one of the poor financing themselves out of poverty with, essentially, seed capital, it is now widely acknowledged that it must go hand in hand with public investments in public goods - health, education, and so on. Those goals tend to reinforce microfinance and viceversa, but essentially as consciousness raising tools to persuade people of the value of those public goods, such as education, especially for girls who would otherwise be left out.

Fifth, microfinance does not really address the problems of the "poorest of the poor" - it is really about the poor, rather than the really, really poor. This is something now acknowledged pretty much across the board. The poorest of the poor tend to live in areas of high insecurity and failed states - and in those places, it is practically impossible to run a microfinance program, or any other form of investment, public or private. I am a huge fan, and practitioner, in the microfinance area, but it is not a silver bullet.

Sixth, the whole microfinance as women's development is somewhat oversold to credulous, on the one hand, and ideological, on the other, Western aid agencies with agendas, and in part is an artefact of those Western agendas. The utility of focus on women's empowerment is true in part, but much less so - much less universal - than prevalent ideology would suggest - and there is a gradual recognition that it is better in many situations to focus on households rather than women as such as the micro-development unit. At the same time, it is no accident that Grameen Bank and its projects have been targets of Islamist violence in Bangladesh, because of their identification with women's empowerment.

Seventh, it is not always clear in particular circumstances whether microfinance is about drawing poor people upwards into the global market (and simultaneously the market down to them), or whether it is about creating a permanently subsidized, "faux" market that never really draws the poor into the larger economy beyond that created by NGO funding itself. One has to look case by case to see what the economic interconnections are. (I discuss this in much greater depth in my Yale article.)

One could make other critiques, but this is enough to indicate a certain caution about overselling the idea.

But - and this is a big but - all that said by way of caution, let's please not lose sight of the forest for the trees. The big picture - the one that justified the Nobel Peace Prize - is the recognition that markets matter to poor people too. That they have to be drawn into globalization. That the worst thing is, as (of all people) Kofi Annan said, back in 2000, the problem is not globalization, but those who are left out of globalization, those with no skills or anything of any use to contribute. The condition of the world's poorest people is not one of exploitation, in the old fashioned marxist sense - if it were, the world's poor would have something with which to bargain. On the contrary, the tragedy of the world's poorest people, especially, is that they are genuinely surplus. They are too poor to even be worth exploiting.

And surplus in the ugliest way - looking at Africa, for example, I would say that secret wish of the world's bourgeosie is not that Africa get richer, but that somehow Africa would be (humanely, of course) depopulated and turned into one big game park and environmental preserve. Of course, we don't want anything bad to happen to all those poor people - but if they suddenly just somehow hadn't ever existed, really, wouldn't that have been the best thing? That's what I mean by describing them as superfluous, surplus population.

Microfinance in the very large picture of things is one of those ideas that helps bring poor people into the market, to find a place in the market, rather than being part of the superfluous population of the world - people less valuable, apparently, than cheetahs. It is not the only idea in this vein - Hernan de Soto's views on property rights and collateral, for example, are another - sure, they aren't the only thing, and evidence suggests that that concept, too, has been oversold (the Economist recently had a story on exaclty that). So is the broad concept that Wolfowitz for a while was attempting to push at the World Bank, until the European socialist globalcrats overrode him - that the problem in the developing world in the first place is governance, because without it, public or private investment is bound to fail.

This cluster of ideas about drawing poor people into the world's economic platform is fantastically important, if only to get us beyond the dirigiste, global socialist concept of international development as simply shoveling money that never seems to accomplish its purposes. That's the point - no, of course it never works out as well as promised in theory, and it has real limitations, but don't lose sight of the larger picture - the one for which Yunus deserves the prize. And the fact that he comes to it from the subcontinent's Left is only all the better; he is not a neo-liberal, far from it.

A few relatively new microfinance readings: Beatriz Armendariz de Aghion and Jonathan Morduch, The Economics of Microfinance (MIT Press 2005), absolutely superb; David Hulme, Microfinance: A Reader (Routledge, 2006, costs a fortune), coming out end of October 2006, haven't seen it yet; and Joanna Ledgerwood and Victoria White, Transforming Microfinance Institutions (World Bank 2006), essential practical how-to manual for institutions, but also a great introduction.

(As a side note. There has been some discussion over at Opinio Juris and other places about the curriculum for teaching international economic law. I have taught international business transactions and other international economic law courses for a long time, now, and I find that I am able to usefully integrate many of the international development transactions that I actively do in the development finance area in the course of my pro bono practice into my IBT teaching. Lending transactions, equity deals, joint ventures, letters of credit, services agreements, licensing, etc. - teaching as I do an IBT class that focuses exclusively on transactions (at our school, we make trade a separate intro class, which I think is extremely sensible), I find development transactions both interesting for students and, in some ways, helpful teaching tools because of the fact that these transactions often involve signficant risks, political and legal risks that are obvious to beginning students in ways that risks in developed country transactions are not. Here is a link to my 2005 IBT final exam, involving post-war reconstruction in Africa, conflict diamonds, and other things.)

Monday, October 09, 2006

Spatializing the description of method in international law scholarship

Imagine the various methodologies in international law scholarship represented on a three dimensional Cartesian coordinate grid, with the following axes:

Three Explanatory Axes

Horizontal axis:
The sovereignty continuum.

This is the line along which are located positions on state sovereignty, with sovereignty for its own sake at the left extreme, democratic sovereignty midway along the left side, and the right extreme occupied by global parliamentary governance, with liberal internationalism somewhere along the right side. In the middle would be situated sovereign state multilateralism - the balanced midpoint admitting both of sovereign states and multilateral cooperation. I've written a lot on how to set out positions along this line, in my Squaring the Circle review of Anne-Marie Slaughter's A New World Order book, for example, or in my U of Georgia review essay on Goldsmith-Posner's Limits of International Law book.

Vertical axis:
The descriptivism versus prescriptivism/normativism continuum.

This vertical axis describes the range of positions between pure empirical descriptivism at one extreme (we'll put descriptivism on the lower half of the vertical line) gradually ascending into other descriptivist positions, such as rational choice theory (and perhaps various international relations power paradigms) somewhere along that line (it is not clear exactly that they form a graduated line, in fact), and normative claims, at the other extreme, on the upper half of the line.

By prescriptivist or normativist positions, I mean international law methodologies claiming that the proper subject matter of international law scholarship set forth normative moral claims that should (and perhaps must, overtly or covertly) undergird international law, both positive and customary. The prescriptivist claim at its strongest is that a purely descriptivist approach cannot make sense out of international law because the materials of international law only make sense understood and refracted through a moral prism, without which it is not comprehensible. And the highest task of international law scholarship is to connect that moral vision with law.

The normativist positions have been those of the leading theorists of international law of the last generation in the United States - Louis Henkin, Thomas Franck, Henry Steiner and, in the next generation, Harold Koh. These normativist positions have been associated with what I suggest is actually a separate proposition, viz., a certain answer to the sovereignty question which, in the case of all these normativists, is liberal internationalism. There is a strong tendency in the literature to conflate a normative approach to methodology with a certain normative result with regards to the sovereignty issue, viz., liberal internationalism. Part of the point of this spatializing exercise is to separate out those propositions; to admit of the possibility, for example, that one might be a normativist - but endorse a different normative answer to the question of sovereignty, eg, democratic sovereignty. I would locate myself in that position.

The descriptivist positions, by contrast, have been those of the rising generation of theorists, and have been conflated, in their turn, with another answer to the sovereignty question, viz., sovereign state positions. These scholars include, of course, Eric Posner and Jack Goldsmith. However, as the Georgia conference on The Limits of International Law made clear, a large cohort of new international law scholars is now rising that is both descriptivist and, broadly speaking, liberal internationalist. Again, a large part of the point of my seeking a spatial representation of these positions is to make clear that sovereignty questions are separate from methodology questions, however one answers them.

I have been struck - I'm sure others have been struck - by the relative paucity of rising young scholars who embrace the position of the older generation of normativists and liberal internationalists; the rising generation, even when it seeks to defend liberal internationalism, seems intent on doing so on methodologies of game theory, rational choice, instrumentalism of various kinds, and not an appeal to morality itself. That is one reason why Cornell's Robert C. Hockett's recent review of The Limits of International Law in the Minnesota Law Review is so interesting - a young, very sophisticated scholar affirmatively asserting both normative and liberal internationalist propositions.

These two axes, horizontal and vertical, are two that I have described previously. I have suggested where various paradigmatic scholars, or at least key works, might fall within that grid. Thus, for example, Goldsmith and Posner's Limits book would fall in the lower left quadrant, as a book endorsing democratic state sovereignty but also embracing rational choice descriptivism. In the upper right quadrant would be many of the classic international law theorists of the previous generation or so - Henkin, Franck, Steiner, Koh - prescriptivists of a liberal internationalist commitment. In the bottom right quadrant might be some of the new generation of thinkers - Oona Hathaway and Ariel Lavinbuk, perhaps, liberal internationalist and yet descriptivist. I myself would probably count as upper left quadrant - while respectful of the new descriptivist methods, still essentially a moralist in approach, yet a moralist committed not to liberal internationalism but instead democratic sovereignty.

My purpose is not at all to "peg" anyone anywhere that they would not self-describe - which is partly why I thought the project so suitable for an interactive wiki, in which international law scholars could be invited to locate their various articles themsleves. My purpose is genuinely descriptive, to try and find a new way to describe and represent the methodological world of international law scholarship. I should like to test whether the effort to "spatialize" the multiple vectors of international law scholarship proves useful in describing the field. I am more or less convinced that it helps, if it hedged by enough caveats - the most important being that simply putting positions on a line does not, by the mere act of putting them on a line, separate one position from another merely as a matter of degree and not kind. And quite possibly, the positions described here do not fit "along" a line at all - it may impose a certain picture that is in fact quite misleading. Nonetheless, I persist in thinking that it is a useful approach at least for these two axes.

I have now thought to add a third axis. This one is much more difficult to conceptualize as an axis, and that quite possibly because the positions I propose to stick thereon do not really fit along a line with each other. Nonetheless, let me try it out:

Spatial axis:
The exogenous versus endogenous explanation of international law methodology axis.

What do I mean by that less than transparent title? Exogenous versus endogenous? I mean by this the traditional distinction between explanations that draw from within the subject matter to be explained - explain on its own terms - and those that draw from outside the subject matter to explain it in terms of something else. One might contrast, for example, doctrinal explanations for explaining the law, explanations that draw upon legal doctrine itself to explain the law, and which thereby assert that the law has its own explanatory power - versus explanations that assert that you can only understand the law, or some aspect of it, by looking to some other explanation, such as economics, psychology, morality, etc., whatever that exogenous source of explanation might be.

Of course, this distinction is well known and applied in many fields besides law. Absolutely nothing new here - which I why I think it is useful to apply to international law scholarship and method. At the center point of the axis, we might put positive law and doctrine, as the essence of engogenous explanation. Then moving slightly further out, or perhaps embracing positive law and doctrine, we can put the Legal Process school, as one which is still fundamentally endogenous. We might also put here all the various clinical methodologies in international law, considering that they operate, behave, at least, as though the law really were the moving agent, the source of explanation for why things behave they way they do. Then, moving further out, we can begin to take on more exogenous forms of explanation, reaching outwards to legal realism, and from there to "critical" theories of law that do not necessarily explain law through law at all, but see it as the floating superstructure atop something else entirely.

What are some of the explanatory theories of international law that might fit on this line? Positive international law; advocacy and clinical methodologies that rely on legal process being taken seriously; legal process school; law as policy school; various IR theories that essentially explain law exogenously through game theory of power relations; sociological theories of international law, such as that being developed by Ryan Goodman and Derek Jinks, that seek to explain, at least in part, the binding force of international law through socializing forces; feminist legal theory; intellectual history of international law; intellectual history of international law as a profession (Koskenniemi); legal critical theories such as CLS or critical race theory; and critical theory more generally.

Certainly there are others. And particularly in this axis, I am concerned that the grounds for thinking that they can be ordered serially along a line are very weak and perhaps quite counter-productive. Moreover, I would also query whether, even if you think that it is possible to put these points serially in some fashion, this line has "midpoint" that corresponds in any meaningful way to the "midpoint" of the sovereignty axis or the normative-descriptivist axis. (One solution to that might be to order the line starting with postive law at one end, and getting more and more exogenous going further outwards - and then duplicate that ordering in the other direction of the line, so that the same positions and orderings appear for the remaining quadrants.)

It is, to be sure, dangerous to put points on lines. It has the effect of reifying the sense of differences of degree, not kind. And in some of these cases, there may well be no meaningful way to order them on a line - they are just different kinds of explanations. Still, I propose, in my upcoming paper, to suggest that the possibilities of insight through spatialization outweigh the disadvantages, provided it is taken as a limited tool.

Independent and Dependent Variables

Oona Hathaway and Ariel Lavinbuk, in their review of Goldsmith and Posner in the Harvard Law Review, essentially move to prise apart two conceptual issues in international law scholarship, what they call "rationalism" and "revisionism." Without wanting to put my labels on them, in some respects their "revisionism" matches up to my horizontal axis of sovereignty - the revisionism at issue being sovereignty versus liberal internationalism. Likewise, their rationalism somewhat matches up to (some of) the descriptivist positions I have put on the vertical axis of descriptivism/prescriptivism. And, as they comment, there is a perennial but unjustified conflation of the two positions, just as, we could add, there is a perennial but unjustified conflation of the normative and liberal internationalist position.

The question that arises out of the separation of the horizontal and vertical axes, then, is the relationship of the two axes once they have been prised apart. As axes, they can of course be conceived as variables, and the question that arises is whether they are (i) two independent variables, (ii) two dependent variables of a third independent variable, (iii) the sovereignty variable independent and the methdology variable dependent, or (iv) the methodology variable independent and the sovereignty variable dependent.

The big reasons why I find it helpful to spatialize the axes, in other words, are, two. First, to show that the two can be prised apart and are more accurately thought of as separate issues, separate questions. Second, to be able to frame methodically the question of independence and dependence. (Note that I have deliberately put the methodology axis as a vertical axis, in order to avoid the automatic reflex to assume that if it is horizontal, it is intended as the independent variable. I want to regard all four possible relations of independence/dependence as genuinely open.)

And here we have a first contrast of positions. The Hathaway-Lavinbuk position is, essentially - if I am wrong, I invite them to correct me, but I believe this is correct - that what they term revisionism is independent of rationalism - and vice versa. The two variables are independent, that is, (i) above. By contrast, at least as I read Goldsmith and Posner, and understand them to accept (and I invite correction on this), they see rationalism, rational choice and game theory, as fundamentally forcing the position on the sovereignty axis - in other words, they hold (iv), the methodology variable independent and the sovereignty variable dependent, at least (and this condition is important) insofar as the position on the methodological line is true.

The primary claim of Goldsmith and Posner can thus be restated thus: If (and only if) the methodological point adopted - rational choice in their case - is a true description of the world, then the range of true positions on the sovereignty axis (the revisionism variable) is forced (to the sovereignty side of the line). But if, on the other hand, one chooses a methodological position that is false, then they make no claim as to forcing a position on the sovereignty axis, and indeed make no claim at all.

(And note that this truth-value claim is crucial to the kind of analysis adopted here. Unlike in, for example, economics typically, or many other parts of science, the fact that I have arranged the positions according to some non-arbitrary, some partly meaningful criteria along a line (or so I hope), does not make the positions simply different by degree. On the contrary, there remain significant differences of kind at least possible. The crucial implication is that a move along a line, a change of position along the line - even from one adjacent position to another - might move all the way from true to false as a description of the world. Thus, when describing a change in a presumed independent variable, it does not necessarily produce a corresponding change in position of the presumed dependent variable - because the change in independent variable might have moved from truth to falsity, leaving no implication for the dependent variable. This is part of the risk of using this kind of spatialization - the assumption that movements along the line are all movements along changes of degree, not changes of kind, and not changes of kind that involve moving from a true proposition to a false one.)

Where Next?

Even with these cautions and warnings about presuming too much about lines and variables, I suggest that this kind of spatialization has some clarifying value to help frame the debate about explanation in international law scholarship. It is not rocket science, obviously - but that is part of the point. I have deliberately sought relatively uncontroversial propositions about method in order to seek to construct a model that might receive relatively broad agreement as a framework for debating the questions of what is independent and what is dependent, if anything. I am seeking to eschew theoretical commitments in it, but instead seeking to provide a frame.

However, I have not sought in this post to do the more difficult, and much more fraught, task of defending a certain, or any particular, ordering of the exogenous-endogenous axis, or how it relates to the methodological and sovereignty axes.

Nor have I sought to explain where I would locate in this discussion the traditional axis of realism and idealism in international relations - although I would say briefly that conceived as an explanatory proposition, which is why we care about it here, it essentially comes in as an explanatory position largely exogenous to international law, and hence a position on the exogenous-endogenous explanation axis. And expressed that way, located there, on that axis, it becomes another way, perhaps, of explaining why realism and idealism have never been central to methdology in international law (without expressing a view on whether that is a good thing or not).

(I'm delighted to say, too, that Jose Alvarez has kindly invited me to participate in a panel discussion on scholarship issues in international law at the joint AALS-ASIL meeting in Vancouver next June. That discussion will be focused on more "critical" questions of scholarship, the academy, its relation to the world of international law, advocacy, etc., but perhaps some of these concepts will still be relevant. I will also post something about curricular revision at Harvard Law School, adding multiple international and comparative law components to the first year curriculum. In particular, I want to address not the usual public issues that I blog about, but instead the international economic law issues that I teach - what on earth should the IBT course cover, for example?)

I very much welcome comments on this project, either in the comments, or else to my email at school:

(Note: This post originated back in the spring, when I wrote a post on blogospheric scholarship, responding to a Harvard Law School conference discussion on blogs and scholarship, and then extended in discussions at Opinio Juris, (my original post here). It suggested a certain kind of "wiki" scholarship appropriate to blogs and online work because it would allow collaborative postings that would allow scholars to self-identify within the "framework" I have been tentatively urging above. I have been spending quite a lot of time between other, more mmediate projects thinking about the methodology questions in international law scholarship, and wanted to add something else about it beyond that original post. My plan is to get a paper out that proposes this framework - and then to somehow get the tech people at my school, or somewhere, to set up a modifiable web site with cool graphics to be able to show this graphically. I'm not so good at the tech stuff.)

Friday, October 06, 2006

'Law and Terror', my new essay on legislating counterterrorism in Policy Review

My new essay on legislating US counterterrorism policy, Law and Terror, is about to be published in Policy Review, No. 139, October-November. I have posted a pdf at SSRN, here (there are still a couple of typos to be corrected in that pdf, but I wanted to get it up now, in advance of the November election). This is the abstract on SSRN:

This short policy article argues that both the Bush administration, in its final two years in office, and Congress have an obligation and interest in taking US counterterrorism policy beyond the current 'war on terror' operated on the basis of executive power and discretion, to comprehensively institutionalize it for the long term through Congressional legislation. It argues that the Military Commissions Act of 2006 is mistakenly aimed merely at satisfying the narrow requirements of the Hamdan decision, and is far from the comprehensive legislation that institutionalizing counterterrorism policy requires in order both to have democratic legitimacy with the American people and to have a permanency that goes beyond the discretionary whims of any particular administration.

The article very briefly lists topics which comprehensive legislation would address - surveillance, detention, rendition, interrogation and the definition of torture, a domestic intelligence agency, classified information reform, military tribunals, a special civilian counterterrorism court, legal protections for interrogators and indemnities to detainees for mistakes, rules on uses of force short of armed conflict, the role and interpretation of international law in US counterterrorism policy, and Congressional oversight. But it argues that the underlying issue is one of principles to guide counterterrorism policy, and that what matters first in Congressional legislation is the enactment of American values through a democratic process; the advantages accruing to executive discretion and its approach to counterterrorism have now been exhausted.

Given profound disagreement among Americans as to the proper balance of national security and civil liberties, and as to what concretely constitutes such things as torture, degrading treatment, etc., the only appropriate mechanism for resolving such deep disagreement in a democracy is to require legislators to vote on actual techniques of interrogation and intelligence gathering - in detail, specific descriptions, without euphemism or generalities. Is, for example, waterboarding always torture and therefore always forbidden? Anything less than such specificity - a key failing of the Military Commissions Act - dodges the question of democratic legitimacy. Let legislators raise their hands and vote on the specifics that enact America's values, and reveal where precisely, without abstraction or platitudes, they locate the necessary tradeoffs between security and liberties.