A taxonomy of contemporary international law scholarship: political commitments, method, and modes of explanation (three axes) (Version 2.0)

In past posts, I have been working off and on again about how to conceptualize, catalog, and develop a taxonomy of contemporary international law scholarship.  Peter Spiro has been kind enough to invite me up next week to make a presentation at a seminar at Temple University, where I plan to carry this project a little bit further. 

The memo below is not very well developed, and is directed at the seminar participants, but in the interests of keeping my thinking moving forward, I am posting it here.  I may edit it down at some point and take out some of the stuff aimed solely at the seminar.  I'll eventually either replace this with a new version, or put up a new version on this blog.

This is not yet ready for prime time.  But I do persist in thinking that disambiguating these several dimensions and reassembling them as spatial axes gives some kind of handle on contemporary international law scholarship, a way of seeing it as a whole.  I hope it also helps clarify how some of the arguments about politics are really about method, and vice-versa.  That's the hope, anyway. 

(I am going to rework all this stuff as a presentation to my own faculty in April, and I hope by then to have added a bunch of cool Google 3D graphics.)

***

February 26, 2008

Memorandum Re: Describing the intersection of methodology and political commitment in contemporary international law scholarship

Summary

During the decade that I have been teaching public international law in a law faculty, the nature of public international law scholarship has been undergoing some seemingly fundamental changes.

By scholarship, I mean the articles and books published by scholars – sometimes by lawyers in practice or government or international organizations, but usually scholars – in student-edited law reviews, peer reviewed academic law journals (frequently journals outside the United States), leading scholarly journals of the profession (such as the AJIL), books, and related academic venues. The changes have been most pronounced within the US international law academy, its journals and scholarly venues, but some of this has spilled over to non-US settings as well. A part of this scholarship has had an impact on the practice of public international law – areas of trade law, for example, influenced by economic theories of regulation and law. Another part of it has had an impact on what we might call the politics of international law, its role in international discourse and debate within international relations, diplomacy, etc., particularly with reference to the nature, legitimacy, and deference to such constructs as the “international community” or “international institutions” such as the UN.

Changes in scholarship and reactions to them. The changes that I have in mind appear to be of primarily two different types – and they are often confused or run together. One change within public international law scholarship is about political commitments; the political commitments that international law scholars have long brought to the academic table, commitments to such things as internationalism, the independent existence and impact of international law itself, sovereignty or the decline of sovereignty, etc. In one sense this is no change at all – simply a revival or recasting of arguments over the nature and status of international law that go back at least as far as Grotius, the enthusiasts on the one side and the skeptics on the other.

A second change is about method – what is the way to go about study of international law? Within the legal academy, some part of that change seems genuinely new, or anyway new within the international law academy, even if the ‘new’ methods are old to other disciplines, such as international relations or political science or law and economics. They include such methods as rational choice theory, game theory, cost benefit analysis, empirical studies, etc. These changes also seems to me partly generational – the movement toward a new generation of scholars that, at least in the United States, has been exposed to new methods of looking at law generally, and are finally looking to bring these to bear on international law. If the older generation saw international law as, first, bringing moral or normative visions to bear on establishing what international is supposed to be and then using the tools of law to make it so, the new generation seems much more interested in more sophisticated and systematic descriptions of the world as it is.

Observing the discussions at many academic conferences and in the literature has convinced me that there is a great deal of confusion about how to understand these changes. Some of the debates are acrimonious, as new scholars – sometimes younger scholars and sometimes scholars schooled in a certain method and bringing it to international law – upset or challenge propositions that others long in the field had taken as settled. Many of the debates, so far as I can tell, simply confuse distinctions between politics and method. I was recently at a conference in which one leading public international law scholar denounced in the most vehement terms not simply the politics of one rising star in the ‘new’ international law scholarship, but very specifically that scholar’s method – or, more exactly, treated politics and method as identical with each other, saying that rational choice theory leads to improper skeptical questioning of what is finally an exercise in morality and natural law and, if unchecked, such methodology finally leads to authorizing the torture memos.

It was an extreme reaction, and it was recognized as such, but it is the very extreme version of a certain anxiety, especially among an older generation – my generation, it would seem, and older – that the new-fangled methods are somehow “impious” because they do not take a shared moral vision of the glorious role of international law – if not now, then what we, as the ‘invisible college of international law’, can gradually create if only we believe and act as though we believe – as our starting point. Not to mention the trepidation of meeting formal game theory and rational choice in the emerging scholarship and having no ability to read it, let alone take part in the discussion or do it. Parts of the new international law scholarship literally speak a new language.

A framework for representing international law scholarship. My purpose in this memo is to sketch out, in very preliminary form, a way of describing the current state of debate over the whole sweeping field of international law. It is very far from being ready for prime time. I am not entirely convinced that the categories I am proposing, at least in the way I am proposing them, are very useful. But I have decided to give this a shot, and make a couple of law faculty presentations on it.  

Let me emphasize that the project is fundamentally a descriptive one, not prescriptive. The aim is to find a reasonably useful way of conceptualizing and describing the current state of public international law scholarship.

I proceed in the brief memo below by developing three axes along which I think we might usefully distinguish various pieces of scholarship or even scholars themselves. I am reasonably sure that the axes themselves are important conceptually; I am less sure that positions assigned to the axes represent a good ordering or whether, indeed, any ordering at all makes sense. But again, I propose to take a shot at it. In addition to laying out these three axes, I also take up a separate question, which is the extent to which positions on one axis “drive” or “force” positions on other axes – the question, in other words, as to whether the axes represent independent or dependent variables.

(It would be extremely cool if I had a suitable set of graphics to go with all this – after all, it is essentially a 3D grid – and I am working on one using some Google tools. But that will have to wait for round two; I am definitely not there yet.)

The Horizontal X Axis:

Political Commitments:

Sovereignty and Liberal Internationalism

Imagine a horizontal x axis labeled ‘political commitments’. Since there are lots of political commitments, the first question is what political commitments are relevant, if any, to understanding international law or, in other words, how do you differentiate the most important political questions in international law. The second question is whether there is any way of ordering them serially on an axis that actually makes sense of them.

The issue I have chosen as the core political issue in international law is the debate between sovereignty, on the one hand, and liberal internationalism, on the other. One may ask – and I hope to get your thoughts specifically on this matter – whether this is the right question. It seems hard to come up with a question about the politics of international law that is more defining with respect to the broadest range of other political matters. Sovereignty – defined in Lincoln’s terms as a ‘political community without a political superior’ – puts front and center the primacy of the state, each individual state, and creates the terms of an international sphere ungoverned by any higher authority than states and what they might (temporarily or more permanently) consent to do. At the other extreme, liberal internationalism asserts the primacy of international law and international institutions as authorities ultimately above the will of individual states as free sovereigns. Liberal internationalism, like sovereignty, can come in many strengths and varieties, but ultimately it points toward a global federalism in which there is, in at least some matters, authority above that of the nation-state. But I am certainly open to entertain proposals that some other political question is actually more relevant or more ‘higher order’.

The second question – the ordering question – also raises many issues about whether one can suitably order a range, seriatim, of intermediate positions between the strongest form of sovereignty and the strongest form of liberal internationalism. Even if one agrees that the sovereignty question is the central political question for international law, there is still a big question for the method I am pursuing here as to whether it even makes sense to describe various positions as lying on a linear range. That, again, being open to discussion, here is what I would offer, starting from the pure sovereignty position and running over to liberal internationalism:[1]

• Pure sovereignty.
• Democratic sovereignty.
• Sovereign state weak multilateralism.
• Sovereign state strong multilateralism.

• Multilateralism anticipating evolution toward liberal internationalism.
• Pooled sovereignty multilateralism.
• Liberal internationalism through global government networks.
• Liberal internationalism through the legitimacy of global civil society.
• Liberal internationalism through global constitutionalism.
• Global parliamentarianism and global democracy.

If you imagine these positions on a line running from left to right, the basic intuition is that we start with the most “hard” sovereignty position and work our way to the most “hard” liberal internationalism and global federalism. Democratic sovereignty comes next, and with it a special view of sovereignty that says, in effect, that sovereignty itself is not the primary moral value at issue – instead, democracy and the democratic liberty of a liberal, democratic sovereign state, in which sovereignty serves as the protecting vessel, as it were, for the values of liberal democracy.

The line next runs through a series of intermediate positions, however, associated with various forms of multilateralism, and we might ask what distinguishes one from another, and in what order. Again, the basic intuition is that certain forms of multilateralism are done on the assumption that the basic premises of sovereignty are not disturbed – multilateralism of unchanging sovereigns. The strongest forms of multilateralism are often unstable positions, because of the collective action problems involved with holding parties together, but unstable or not, the assumption is one of weaker and stronger forms of multilateralism.

The break in the line – the tipping point from sovereignty positions over to liberal internationalism positions – comes in the center of the multilateral positions. It is associated less with any actual characteristic of a particular multilateral regime, but instead is associated with the expectations and attitudes of significant players toward the meaning and purpose over time of multilateralism itself. The expectation of multilateralism that crosses over to the liberal international side of the line is that an important motivation for the multilateral activity is not simply the activity for its own sake, but for the sake of movement toward stronger forms of liberal internationalism. A variety of theories can account for the movement itself – an expectation, for example, that once states are embedded within a generally beneficial system, they will come to see the benefits of making it a permanent system and overcoming collective action problems, finally, with genuinely superior forms of authority, above the sovereign state engaged in repeat games. Pooled sovereignty multilateralism, modeled on earlier incarnations of the European Union, for example, represents a stronger form of multilateralism in expectation of liberal internationalism and some form of real federalism.

The next liberal international positions are attempts at genuine federalism, but utilizing one or another mechanism by which to provide governance and legitimacy. The first of these – the “cool” position these days, in my experience – is liberal internationalism through governance by “global government networks,” in which national government bureaucracies and court systems essentially interlink across borders to provide coordination and governance in a liberal internationalist agenda but using the powers assigned to them by their national states. This position is particularly associated with Anne-Marie Slaughter and, in a somewhat different version, Benedict Kingsbury. Next is an older version of global governance, in which governance is provided by a coalition of international organizations and international NGOs or, alternatively, in which international organizations govern but gather the legitimacy necessary to do so by treating international NGOs as representatives of the world’s peoples. This global civil society-as-legitimation device is still wildly popular among international NGOs, but has seemingly lost currency with other global elites in the last few years.

The final two liberal internationalist positions are directly about global federalism, naked global federalism, so to speak, without apology or obfuscation. The first is “global constitutionalism” – roughly, the attempt to treat the UN Charter and various other treaties and customary international law and bodies as the constituent elements of a genuinely federal global system. Its main adherents tend to be European legal positivists who, looking at the experience of the EU, believe it provides the model and way forward for supranational governance, beyond sovereign states, for the world as a whole. The final position is global parliamentarianism, as advocated, for example, by Andrew Strauss and Richard Falk, which takes seriously the question of the “democracy deficit” of international institutions and proposes to remedy it by genuine global parliamentarianism. That latter position has seemed to me the most thorough-going in its approach to liberal international federalism.

Let me leave aside more comment on how these various positions might be described, made more complicated, added to, etc., and move to the quite distinct questions of method in public international law scholarship.

The Vertical Y Axis:

Method in International Law Scholarship:

Prescriptivism and Descriptivism

The question of political commitment has tended to dominate the public debate over public international law scholarship. Much of it was generated by the resurgence of what Professor Spiro has aptly called the “New Sovereigntists” – American scholars, often coming not from the field of international law, but constitutional law, who were concerned about the apparent encroachment of international law, customary international law especially. These voices became more active in the later 1990s, and include particularly Curtis Bradley and Jack Goldsmith. Many in the traditional international law field, both in the United States and Europe, and comfortably located within a community of similar belief, reacted with dismay to this new scholarship.

My own minor contribution to it was from a different vantage point – challenging the picture of international organizations gaining democratic legitimacy, and the particular claim of NGOs as “global civil society” that could provide this kind of legitimacy. But what it shared with the New Sovereigntists was a defense of democratic sovereignty as a normative ideal worthy of defense for its own sake, as against an earlier literature in which those skeptical of liberal internationalism generally did not contest the moral worthiness of the global federal vision, but doubted that there was any realistic manner by which to get there. That form of realist skepticism was more or less acceptable within international law circles – it was, after all, the overwhelming view then and now of much of the international relations academy. But what, I think, really angered traditional international law scholars was the robust moral claim made by the defenders of democratic sovereignty. It is a debate that will almost certainly resurface in the argument over citizenship in Professor Spiro’s splendid new book – or will, at least, once I get a chance to review it – and argue that democratic sovereign states, not liberal internationalism, are the last, best hope of humankind and that the category of citizenship in a democratic nation state is far and way the most important mediating category as against tribalism, ethnicity, religion, and other identities that are empowered by the rise of genuinely global governance. But I will leave that aside.

Even if questions of political commitment were predominant in the most public debates within the international law academy in the later 1990s until today, slightly under the surface have been the questions of methodology for doing public international law scholarship. Disentangling these two – politics and method – seems to me one of the most important analytic tasks at this very moment in the scholarly discussion. Method, for the generations of international law scholars since the Second World War, has almost entirely been prescriptive in nature. By that, I mean that the method has consisted of a moral debate (often taken to have been settled by Grotius) from which one extracts a moral vision of international law, which in the hands of international legal scholars collectively has been the idea of gradual progress in the direction of liberal internationalism, ideally in the form of global federal constitutionalism.

The method, then, is moralizing, followed by developments in the law that will enable that moral vision to be realized. The legal methods are somewhat variable – the elaboration of positive law through treaties, authoritative restatements of the law, the announcement of increasing amounts and depth of customary international law, and the assertion of primacy of international law over domestic law, including seeking mechanisms by which to draw national courts into the tasks of enforcement, and many other things. The fundamental observation is that the method of “doing” public international law scholarship is a normative method grounded in morality and law that is very closely tied to the political project. To the extent that there is a prior discipline outside of law, as it were, conditioning the legal theories, it is not international relations and certainly not economics, but instead moral philosophy, largely that of Kant’s Perpetual Peace. This is roughly the method of the great figures of the post-war generation, Henkin, Schacter, Steiner, Franck, et al., and, within the next generation, Koh, Alston, Simma, Higgins, and a great many more. Once the moral vision is set, then the methods might be those of legal positivism or legal process or many other things, but it is a normative activity.

With that as a backdrop, let now imagine a vertical y axis, with prescriptivist (normative) methods at the top and descriptivist methods at the bottom. At the prescriptivist upper end, we can put Kantian moralizing as a method. There are other normative methods we might want to include on this line, but many of them I would prefer to reserve to a third, z axis. These other normative methods would include feminism, critical theory, critical race theory, counter-hegemony theories, and neo-conservatism – among many others. I instead want to turn and ask what might go at the bottom end of the y axis, the descriptivist end?

Upper y axis: Prescriptivism

• Normative methods; Kantian moralizing.

Lower y axis: Descriptivism

• Rational choice theory
• Game theory
• Empiricism

One striking feature of the rise of a new generation has been the rise of descriptivist methods for pursuing international law scholarship. Notably, moral philosophy is much less important as the “backing” discipline for international law scholarship. Tracing the rise of this generation gives two intellectual sources for this. One was the conscious attempt by Anne-Marie Slaughter and others in the 1990s – all impeccably liberal internationalist in political commitment – to draw international relations scholarship meaningfully into international law scholarship.

This movement during the 1990s had some impact, but much less, I would suggest, than the rise within law faculties themselves of economics and social science as the most important intellectual influences, eclipsing traditional philosophy and jurisprudence, and the resultant triumph of a very new form of legal realism within the American legal academy (and nowhere else). By the year 2000, American law and economics scholars were casting about for new fields to plow with a familiar set of propositions, and in any case, a whole generation of rising scholars had imbibed a certain amount of economics-style thinking (so alien to the legal positivists of Europe), best described generically as ‘social science legal realism’ from their first days in law school. If IR theory still seemed a somewhat alien transplant, these basic forms of social science legal realism were not, at least not in American law schools.

The new descriptivist methods fall into two categories, however, and I am doubtful that there is any way to serially order them on a line. On the one hand, there are abstract theories of rational choice, game theory, and rationalist theories based on essentially deductive incentive and tradeoff predicates. On the other, there are empirical methods seeking to study international law by making testable hypotheses and looking to see what the evidence is, for or against.

These two have initially developed separately.  Eric Posner’s work over the last decade, for example, is largely rational choice theorizing, rather than empirical, applying basic propositions of law and economics to public international law. Oona Hathaway’s work on testing of propositions about the effects of human rights treaties, for example, exemplifies the new empiricism in international law scholarship. The reason that these two cannot be serially ordered, however, is that the distinction between them is ultimately false and a disappearing artifact – really, they are two parts of a unified descriptivist methodology in which rationalist theories propose hypotheses which empiricism then seeks to test.  Ultimately the two must come together as a scholarly enterprise.

(I am ignoring here the very large question of what constitutes a defensible method of empiricism.  We should indeed probably include several different empirical methods.  We leave that aside.)

X and Y Together: Four Quadrants and the Intersection of Politics and Method

Just as we could probably locate additional normative methods on the upper prescriptivist line, we could probably locate additional descriptivist methods on the lower portion of the line. I am content to leave the y axis as it is, however, in order to ask whether, even on this simplified model, it has any utility in helping to visualize, and then disentangle, the questions of method and politics. Let me suggest in a crude way that we might locate some examples of particular scholars within this framework (ideally, we should proceed not by person, but by piece of scholarship, both to show that some works by a particular scholar are about one kind of method, others about something else; and in any case, scholars and their scholarship change over time, not to mention that a single piece of scholarship can fit into more than one quadrant):

Upper left quadrant:

• Henkin
• Steiner
• Koh
• Franck
• Falk
• Strauss
• Simma
• Alston
• Higgins
• Slaughter

Upper right quadrant:

• Anderson

Lower right quadrant:

• Goldsmith
• Posner

Lower left quadrant:

• Raustiala
• Guzman
• Hathaway
• Slaughter

Labeling scholars and putting them into quadrants is fun, and I do think has some explanatory power in separating the aspects of their scholarship that are primarily about method and or primarily about politics. In particular, I want to stress that in the emerging literature of public international law, some scholars unite a politics of liberal internationalism with a descriptivist method, while others unite a sovereigntist politics with a descriptivist method. There were certain assumptions, especially earlier but still present in many of my discussions with scholars, at least, that rational choice or game theory methods, for example, are essentially the same as a politics of sovereignty – failing to disambiguate method and politics, and in many cases taking Goldsmith and Posner as exemplary of descriptivist method. That claim is disputed by other scholars – Andrew Guzman’s outstanding new book on international law and rational choice theory (required reading, everyone!) is an explicit challenge to the political conclusions reached by Goldsmith and Posner, for example.

Independent and Dependent Variables:

Does a Position on One Axis Ever ‘Force’ a Position on the Other?

Once method and politics are separated, however, we now face a general question of what relationship the two have to each other. If you hold a position somewhere on the x axis, might it ‘force’ your position on the y axis, or vice-versa? Are the axes, or at least particular positions on them, such that they make the other axis a dependent variable? Or, alternatively, are these two axes and all the positions on them independent of each other, so that politics and method never ‘force’ each other?

The traditional older generation of the upper left quadrant almost certainly believed that the correct method – Kantian moralizing translated into law and institutions – led to a certain kind of political commitment, liberal internationalism. Indeed, the anxiety of the moralist liberal internationalists is precisely the belief that if you do not start your inquiry from a certain moral perspective, you will not arrive at a political commitment to liberal internationalism.

Many of the younger, descriptivist generation reject that. Hathaway and Lavinbuk, for example, in their Harvard Law Review review of the Goldsmith and Posner book, explicitly call for method and politics to be regarded as independent variables. Or, at a minimum, a question of dependent or independent variables subject to testing. This opens the way for scholars such as Kal Raustiala or Andrew Guzman to be found (by me, at least) in the lower left quadrant – with liberal internationalist political commitments, but a rationalist methodology (along with a certain amount of empiricism, too).

Nonetheless, Goldsmith and Posner, in The Limits of International Law, do not appear to regard method and politics as genuinely independent variables. After all, their book argues that if you adopt a certain rational choice model, with certain basic and simplifying assumptions, the consequence will be that liberal internationalism is indeed ruled off the table as a matter of politics being forced by method. That is, if the method of rational choice theorizing that The Limits of International Law pursues is correct, then liberal internationalism cannot be true because its foundational assumption – the independent pull and tug of international law on behavior – is false. And if that assumption is false – and seen to be false because of the application of a true method, rational choice modeling – then liberal internationalism is not in fact available as a meaningful international politics. It may live on, but only as an illusion or a veil (the Marxist strain of Goldsmith and Posner’s thinking is quite striking). As I have suggested elsewhere in reviewing The Limits of International Law, in that case democratic sovereignty is really the “last man standing” as a politics, because the other possibilities turn out to be false or illusory.

The point for our purposes is not whether Goldsmith and Posner are right about that. They are sharply disputed by a new literature from other rationalists; perhaps their arguments are incorrect. But what we take out of this is that they adopt the position that political commitments are not independent of method – the correct method, correctly applied, in fact rules out a whole range of political commitments and leaves certain other ones standing. The y axis turns out to be the independent variable, and the x axis the dependent variable.

In some sense, of course, that is always true – political commitments should be the result of the right method. In that sense, political commitments are always dependent, the conclusion of a correct method. But the point is that given the disagreements over method, it is possible to arrive at either liberal internationalism or sovereignty positions through descriptivist method – something that, I think, has not been widely understood or accepted.

It should also be noted that normative moral methods need not, at least in my view, lead solely to liberal internationalism. It is not the sole consequence of a moral vision of the international sphere. One might – as I do – reach the position of democratic sovereignty on the basis of moral argument.

The Spatial Z Axis:

Modes of Explanation in International Law Scholarship:

Endogenous or Exogenous Explanatory Theories

We might usefully add one more axis to our spatial model – actually, we might add several, but we can discuss which one(s). The one I propose to add as the z axis is one not about politics, nor about method, but instead about the mode of explanation – and that with reference to a particular question, how endogenous or exogenous a method of explaining international law is. This is to raise the familiar “inside versus outside” jurisprudential observation, from HLA Hart, about modes of explanation in law – familiar, but it nonetheless seems to me quite relevant for situating contemporary international law scholarship.

By inside versus outside, I mean the question of whether a way of explaining something about law is explained by reference to law itself, or whether it is explained by reference to some form of explanation, scholarly discipline, or social realm outside of law itself.[2] I do not propose to get overly technical about the distinction, nor do I propose to get overly wrapped up over the differences between method and explanation. Also, let me add that this z axis is the least worked out part of this whole discussion, and I welcome your thoughts on whether it adds anything or not.

Let us imagine, then, a z axis with the following positions on it, running from explanations that are “inside” the law to explanations that arise from “outside” the law. (It might make sense to “double” the line, meaning to start from the center point and work our way outwards, from inside explanations to outside ones, and then to deploy exactly the same list in the opposite direction again starting from the center.) I grant that some of these distinctions are fairly arbitrary and perhaps do not really work, but let us try:

• Practice positions, eg, international law clinic briefs, etc.
• Positive law explanations.
• Legal process explanations.
• Historically grounded state practice explanations.
• Law and politics explanations.
• Empirical sociological explanations, e.g., Goodman and Jinks.
• Feminist legal theory.
• Counter-hegemonic explanations, eg., anti-globalization theory.
• Critical legal theory and critical race theory.
• International relations and political science explanations.
• Social theory explanations, e.g., New Class theories of global governance.
• Sociology of the international law academy, i.e., Koskenniemi.

I grant that there may not be a very good way serially to order these positions. Roughly, however, they correspond to “inside” and “outside” legal explanations. Positive law, of course, is the easy example of explaining international law on its own legal terms. International relations theory, on the other hand, looks to a quite exogenous body of explanatory materials. In between these I have located, first, history, law and politics as guides to state practice and the practical issues of international and national politics that shape international law and how it should be explained. And, second, I have located a body of essentially critical theories – feminism, for example – that partly draw upon endogenous explanation but partly draw upon exogenous theory as well.

Finally, I have placed at the furthest edge, methods that draw upon social theory and sociology in a quite different way – New Class theory, for example, to explain the rise of a global bourgeoisie that seeks a certain transnational governance order; one might also put various residual forms of Marxism here. On the outermost extreme sits Koskenniemi’s sociology of the profession of international law and international law scholarship – in one sense, completely inside international law, but in a far more important sense, standing entirely outside of it as law in order to explain it in historico-sociological terms that owe much to Durkheim and the sociology of professions (or anyway, so it seems to me; Koskenniemi might well disagree).

I invite your comments as to whether this z axis adds anything usefully explanatory to the whole picture. I believe it does, in the sense that another part of the debate over method and politics is driven by exactly this question of what counts as authority to settle questions of international law, the very questions that arise in scholarship. Explanation, in this special sense, is not precisely the same as methodology.  What you privilege as a source of explanation, what you say has the authority of explanatory power (including, to be sure for what purpose) will often be determinative of what you think international law scholarship should be. European scholars often criticize American scholars for what they see is far too much exogenous explanation – not just a matter of method, descriptive versus prescriptive, but as a matter of explanation, what has the authority to explain something and for what purpose.  (And a large part of that gap, of course, is owed to differences in the manner of training - the greater tendency of American scholars to have undergraduate backgrounds in exogenous fields, etc., etc.)

***

Conclusion: Have We Learned Anything?  Maybe

We could add other axes, or substitute axes, along different questions and dimensions. But now, in closing off this admittedly rather cryptic memo, let me try and sum up what it seeks to address and why I persist in thinking it offers a useful way of framing certain debates. First, it does seem to me that there is a marked confusion today within international law scholarship as to the separate dimensions that form that scholarship. This memo seeks to present a means of situating scholarship in such as way as to avoid those confusions. Second, it also seems to me that there is a debate as to what kinds of positions about what force certain other positions. The model sketched here is designed to make it easier to assert what might force what. Third, there is a debate about what should constitute the central questions that international law scholarship seeks to answer – ranging from what is the law to what is it authority – and this model furthers that debate, I hope, by be willing to assert that these are the central axes and positions that currently matter. I’m not sure this accomplishes any of those ends, but this is where the project currently stands. I look forward to your comments.

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[1] I give an abbreviated statement here; in other places I give a fuller description of these positions. See especially, Kenneth Anderson, "Remarks by an Idealist on the Realism of The Limits of International Law," 34 Georgia Journal of International and Comparative Law 253 (Winter 2006); “Squaring the Circle: Reconciling Sovereignty and Global Governance Through Global Government Networks,” 118 Harvard Law Review 1255 (February 2005).  See my SSRN author page for pdf downloads.

[2] Larry Solum has a useful exegesis of the inside-outside distinction over at Legal Theory Lexicon blog, at http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html. The original argument is in HLA Hart’s classic of jurisprudence, The Concept of Law.

Prudence and morality for a political community's trustees confronting war

A note on ethics and war and just war theory.  In class, we have been talking our way through Walzer's chapter on realism and his deservedly famous discussion of the Melian dialogue.  The positions that can be disambiguated from that discussion as statements of realism are:

• Amoral realism.  The view that morality has no role in war.  It is expressed by the Athenian generals when they say (paraphrase), because we have power, we will do what we will and you will do what you must.  And because morality has no role in war, there is no ground to speak on moral grounds of limits on war.
• Amoral realism, 'an argument upon your safety' from Thucidydes.  This prudential argument says, too, that morality does not have a place in the discussion, because it is simply about your safety.  You must do whatever you must do to secure your safety.  Put in this bare bones fashion, it is still an argument of pure prudence, although it rapidly shades over into the moral argument formalized by Hobbes:
• Moral realism, 'an argument upon your safety' but by a 'necessity of nature', from Hobbes.  The move that converts Thucidydes into a moral argument, by linking it to the moral claim that in the state of nature, you are entitled, morally entitled, to whatever you deem prudent for your safety, including war.  Again no limits on war.

All that - plus some more - appears in Walzer, chapter 1.  But I want to add something else, something that converts and amplifies the 'argument upon your safety' from a purely prudential argument into a moral one.  It is that when the subject of all this is not a person, but a community, then obligations to see to the safety of that community become more than merely prudential.  They become a moral requirement that entails prudential forms of action.  The leaders of the community are, in effect, trustees and fiduciaries entrusted with the safety of the community.  What they do as matters of prudence are also, and in the first place, acts of morality on behalf of the community for whom they act. 

An individual, that is, might choose to take greater risks for himself or herself than he or she would feel entitled to have the community take.  It is a familiar position for a fiduciary - you are obliged to act more prudently than you would for yourself alone, and in so doing you fulfil a moral duty to others that, with respect to yourself alone, would be merely prudential.

I have described this as "amplifying" the prudential 'argument upon your safety' because the trustee, as fiduciary, must be more cautious and more prudent because of moral obligations to the community.  It amplifies in some circumstances the possibility of conflict, including preemptive and preventive war.

(For a real life example of this, see Jack Goldsmith's The Terror Presidency, a book premised in large part on the proposition that any US administration, keenly aware of its role as trustee of the safety of the American people, will believe it not just prudent but moral to do whatever it takes to ensure public safety.  Many people argue that this prudence is misplaced and excessive, and risks other kinds of things, such as damage to the long term constitutional order.  Goldsmith's observation is that it is not merely a sense of prudence - protecting ourselves - but morality - the president has the moral obligation to do whatever can prudently be done to keep the American people safe.  In that sense, the moral obligation of a trustee serves as an amplifier of prudential action.  See my TLS review of it, downloadable at SSRN, here.)

***

(PS.  Philip Bobbitt (I don't think he'd mind me identifying him), in an illuminating conversation (as they always are) with me today noted that this sentiment, the idea that what is prudence for an individual becomes a genuinely moral obligation for the ruler - and amplifies it -  is part of Machiavelli's thought in The Prince.  But it is not Machiavelli as caricatured, but part of his republican thought.  Philip has a new short biography on Machiavellli and The Prince for a general audience coming out soon.  Also, Philip's magnificent Terror and Consent will appear from Knopf on April 1 - don't miss it! 

I should add, too, that this was a conversation with my daughter Renee, who has been studying Western intellectual traditions in her 9th grade Sidwell history class.  Renee has the good fortune to have an outstanding teacher - scholar in her own right - who has the class reading Machiavelli, et al., in original selections.  Renee remarked how much she loves listening to Philip talk about ideas, he is very clear, she says.  Philip is remarkably patient in explaining these things, and Renee took away an important idea about Hegel today to use in her Marx paper.)

Short review of Stephen Hopgood's Keepers of the Flame: Understanding Amnesty International

I was asked recently to review Stephen Hopgood's Keepers of the Flame: Understanding Amnesty International for an academic journal.  The journal review must necessarily be a capsule, around 750 words.  So I thought I would post up here my original 1600 word draft, before it gets cut down to size and the more biting stuff toned down (by me, by the way). 

There are a couple of things I did not address in this draft review, knowing that the final product is 750 words.  One is the embrace by AI of a sort of multiculti-anti-imperialism ideology.  Another, following on the first, is AI's embrace of often crude anti-Israel biases that have led to what can only be called factual errors in its reporting and beyond-dubious legal standards and international law interpretations.  A third, finally, is the unsurprising inability of the organization to mediate the contradictions between its gender, gay, and other progressive Western agendas and its pro-Muslim sensitivities; try as it might to ignore them, the contradictions result in considerable, um, cognitive dissonance.  At best.  Then there is AI's anti-Americanism, on which I commented in the Weekly Standard piece footnoted below.  One might as well add just how helpful all the above are to fundraising.

This is still first draft, not cleaned up, and I might well make some copy editing changes in the text below.  The Hopgood book is excellent, strongly recommended for anyone trying to understand the cultural inside of a leading organization of what is sometimes called - though not by me! - 'global civil society'.

***

Keepers of the Flame:

Understanding Amnesty International

Stephen Hopgood

(Ithaca NY: Cornell UP, 249 pp., paper, 2006)

ISBN: 978-0-8014-7251-0

The opacity of international nongovernmental organizations (NGOs), their closetedness and disdain for opening up even a small window into their internal workings, and more broadly their lack of accountability, is remarkable considering how much of their activity is devoted to getting other kinds of organizations to do precisely what they won’t. The environment, human rights, development, gender, labor, it does not really matter what – the most powerful global civil society groups (and the foundations that fund them) display haughty aversion to the transparency and accountability that they demand of government, business, international organizations and, really, everyone else.

The international NGO sector, taken as a whole, controls large resources (even leaving aside the development organizations that act as outsourcers of government funds). Greenpeace, for example, has had a peak annual budget exceeding a hundred million dollars. Oxfam, too, is also financially considerable.  NGOs have an enormous economic and political footprint in the developing world especially; their leverageable moral capital even larger than their financial capital. Yet getting concrete information (even routine financial data of the kind every public corporation must publish quarterly) is cantankerous at best. Getting truly inside NGOs, inside the culture, the habits of thinking and decisionmaking, is, in many instances, simply impossible.

For these reasons, Stephen Hopgood’s quasi-historical, quasi-anthropological, quasi-organizational account of governance, decision-making, values, power, organization, staffing, and control of Amnesty International is an important, fascinating study of one of the leadership organizations of global civil society. Hopgood traces the development of the organization as a history of its internal arguments and fights over its fundamental mission and mandate, beginning with its origins in 1961 with a British lawyer, Peter Benenson, and his mission – one squarely in the grand tradition of British social reformers that includes the Utilitarian Bentham and the Evangelical Wilberforce – to document and advocate on behalf of “prisoners of conscience.” One dimension of the book is the history of the organization. But a second dimension, much more important, is a compelling and closely observed walk through the fundamental and sometimes contradictory mission questions that AI has faced over its approximately fifty years of existence.

What are those mission issues? Perhaps the most vexed is the question of how wide AI’s human rights mandate should reach. And, by implication, how much should AI interpret and understand “human rights” to be simply an ever lengthening laundry list of progressive social demands? Hopgood begins his account with a revealing incident from 2003 when many members of the secretariat staff signed an open letter to AI general secretary Irene Kahn and her senior staff calling on them to maintain, and indeed refocus, the mission of AI onto something much closer to its original mandate. It appears to have had little impact on the internal trajectory of AI’s mission. Ironically, in fact, if there is anything that has pushed AI (and also HRW) back towards its original mandate, at least temporarily and partially, it is the post-9/11 US detention facility at Guantanamo, and the arguments over torture and coercive interrogations and renditions that have accompanied it. Activities about which AI, under Kahn, seems to have been become somewhat – well, how to put it? of course, torture is bad, but we have all these other new activities concerning development and anti-imperialism and what-not that are just so exciting – when they occurred in the usual benighted places, suddenly become front burner issues when the US is involved. Hence AI’s controversial invocation of Guantanamo in its 2005 annual report as “an American gulag” – although, thoroughly in keeping with the “new” AI public relations, that particular charge appears only in the press release and executive summary to the press, and is nowhere argued for in the actual body of the report.[1]

The original 1960s AI brief was, well, brief – to see to prisoners of conscience, those imprisoned on political grounds rather than ordinary criminal grounds in the liberal sense, oppose torture and the death penalty. It gradually expanded to cover the political human rights found, particularly, in the International Convention on Civil and Political Rights (ICCPR) that came with the founding of the UN. A liberal understanding of these rights lent themselves to a certain prioritization – core rights that could be understood on Kantian, categorical terms. No tradeoffs accepted regarding torture, for example; categorical, admitting of no exceptions. Yet the difficulties were present from the beginning, given that the ICCPR was accompanied by the International Convention on Economic and Social Rights, and by the enunciation within both the United Nations and many declarations and documents of positive international law that aspirational economic rights – ones requiring resources, economic growth and, yes, tradeoffs – were as much “human rights” as anything else. The core human rights NGOs – AI and Human Rights Watch (HRW) – resisted for a long time. But gradually, with varying degrees of actual commitment, they concluded that the juridical status of those rights in international law prevented them from prioritizing them over civil and political rights; the most they could do, as HRW has long done, is plead rather weakly that organizationally, they are not very efficient at what we might call “tradeoff” rather than “Kantian-trump” human rights.

Hopgood shows how AI gradually has come to embrace the entire economic, social, and cultural canon of left-progressivism, preaching it as though it were required by the Categorical Imperative rather than simply being one politically contestable vision of the good even within an impeccably liberal paradigm. As a practical political matter, it especially moved this way because of the fact that, unlike most other leading international NGOs, its constituent national chapters are membership organizations. Members, voting members. One practically has to have worked in NGOs to understand just what it means to have an organization whose board of directors is not self-appointing and self-perpetuating, from the top down.

On the one hand, it means an organization that has accountability to its members for the positions it takes, and in that special sense, democracy. But that democratic accountability is entirely internal. It is not accountable to anyone outside the organization – which, in the case of demands for how development budgets should be spent, the economic tradeoffs involved in poor and developing countries facing AIDS, environmental problems, malaria, girls’ education, is far from a minor thing. On the other hand, non-membership organizations, the self-appointing board-controlled organizations, have advantages in ideological coherency (as exemplified by HRW), top-down governance not swayed by the diffuse political desires of a voting membership. HRW, to be sure, has followed the shifting winds of liberal internationalism, gradually converting its mandate from international liberalism to international multiculturalism, but by comparison to AI, it remains much more willing to say that not everything that is good is a matter of rights.

Hopgood is best – superb, even – on the internal culture of AI, and the secretariat in London especially. Anyone (this reviewer included) who has had dealings with the culture of AI on the inside will immediately recognize the enormous pressures of an organization that is both a big business, a professional commitment, but also what amounts to a religious vocation with all the intensity that entails. Burnout is common and even expected; even so, Hopgood’s interviews on the subject are startling. So is the sense that the world devolves into the space within AI itself. It is a place of religious fervor, but also of people who finally have no other place to go even if they wanted to, and few job skills deployable outside of AI itself; a place of many theological disputes over mandates and ideological categories, but at the same time, because of the democratizing pressures of the membership, a place prone to sometimes humiliating mistakes. Its embarrassing factually flawed reporting on Guatemala a few years ago, for example, or its general lack of sophistication (even by the standards of broadly sympathetic fellow organizations, HRW and the International Committee of the Red Cross (ICRC)), in matters of the laws of armed conflict – for an organization that pioneered human rights professionalism, it can sometimes remain remarkably amateur. Moreover, relations between the secretariat and wealthy and powerful national organizations such as AIUSA can be tense.

Finally, however, Keepers of the Flame documents (yet without entirely recognizing it) the ways in which an organization can exhaust the mobilizing discourse of rights. “Rights” in AI’s usage, in the relentless broadening of categories that Hopgood reveals chapter by chapter, perversely lose their sanctity, luster and status as trumps, and simultaneously their ability to mobilize, precisely because they become merely the language for describing every fashionable political desire. It has been a long time since AI was regarded by serious political actors as anything other than a political advocacy group, a long time since it was regarded as standing above ordinary politics in the way that, for example, the ICRC has carefully continued to do, even in its nastiest confrontations with the US. And yet AI, blinded by its own rhetoric, will likely never recognize the damage it has done to the language of rights in pursuit of its promiscuous political agendas. As Michael Walzer once put it, in a passage Hopgood might fruitfully have made his own, the “effort to produce a complete account of justice or a defense of equality by multiplying rights soon makes a farce of what it multiplies. To say of whatever we think people ought to have that they have a right to have it is not to say very much.”[2]

---

[1] I have written critically of AI in this regard; see Kenneth Anderson, “An American Gulag? Human Rights Groups Test the Limits of Moral Equivalency,” The Weekly Standard, Vol. 10, No. 37, June 13, 2005, available at SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=935770.

[2] Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (NY: Basic Books 1983), p. xv.

Higher education tuitions, endowments, tax subsidies, the end of the American baby boomlet in university admissions, and the long term question of foreign student admissions

Note:  Looking at the comments, I want to clarify two things.  First, the concerns I raise below address the obligations of universities and how they should deal with being part of a particular political and social community.  It is not about individuals who apply to schools as such, whether from the US or anywhere else.  If I were a student abroad, had the money and the possibilities, I would certainly want to seriously consider coming to the US for study - in part because its universities are better than those in most other places, in part because the credential is often worth more, and in part because, should I wind up staying, the opportunities created are better.  The question in the post below is not whether individuals should seek admission; the question is rather whether universities as US institutions have an obligation to the US as a social and political community to consider US applicants and foreign applicants differently.  Second, this post is entirely about undergraduate education.  Graduate education and graduate education funding raise very, very different issues from those related to undergraduate admissions, and I do not address them below.

(Thanks Glenn for the Instalanche and welcome, Instapunditeers!)

I'm not posting much, for reasons stated a few posts ago, but I wanted to put up here a note I sent to Glenn Reynolds of the redoubtable Instapundit - Glenn has been tracking the discussion over the question of university endowments, tuition costs, and moves in Congress to address endowment payouts.  I wanted to note that the discussion so far is really missing a crucial long term element, which is the composition of university admissions.  I have left this in its original form, as an email to Glenn, although Glenn has mostly been simply noting the debate rather than setting out a fixed view.

***

Dear Glenn,

I've been following your posts on the higher education tuition debates, and the proposals to force greater endowment payouts.  That stuff is all very interesting, especially to a nonprofits lawyer like me, but I would say that the debate is missing a big issue. 

The biggest long term issue affecting American undergraduate institutions - one which higher education, tax authorities, politicians, parents and the general public need to make some fundamental decisions about now, rather than simply letting the demi-monde of university admissions offices do it - is to what extent tax exempt US universities should be committed to American students.  The most elite universities, the Harvards, Yales, etc., have already committed themselves, at least in principle, to pure global cosmopolitanism.  They have asserted, as a matter of high moral principle, that they are global institutions committed to serving the planet as a whole and not merely any particular place; Harvard is no more an American institution, about serving American society, than it is about serving Massachussets or Boston. 

This is not a call for America Firsting or nativism or anything like that, but it is a question about the commitment of universities to wholesale cosmpolitanism.  Note, after all, that the high minded moral principle coincides perfectly with university self-interest in getting the best students from wherever they might come.  Universities compete on talent.  On a purely cosmopoplitan basis, Harvard, Yale or Princeton could in theory staff an entire undergraduate college solely with people from abroad - there are only 300 million Americans after all, and over a billion Chinese, etc., etc., so that if one were truly serious about looking solely at the undifferentiated talent pool of the entire planet, one might in theory have the best students in the world while including no Americans.  That's just simple numbers. 

When one adds to that the growing wealth elsewhere in the world, and the ability of the wealthy in Asia or the Middle East to write an American university a contribution check in the way that the wealthy now do in order to cement legacy and wealth advantages in the admissions offices, the question of civic commitment versus cosmopolitanism becomes even more relevant.  It does not go away because, to offset the wealthy and legacy students, universities take a certain number of affirmative action students on the basis of identity politics (indeed, one of the striking gamings of the current system is how universities seem increasingly willing to apply affirmative action labels to include students from abroad as diversity admissions, moving away from historically disadvantaged groups within the United States). 

Obviously an entire entering class at Harvard or Yale and no Americans is not going to happen.  But at the margins, the incentives and the legitimating moral rhetoric are all there to move away from American students.  I myself think that there is a powerful contrary moral argument that says that institutions such as universities should be cosmopolitan only to an extent, while remaining rooted in a particular place, a particular society, and finding a large part of its mission there - and that universities as good as Harvard need to arise in other places in the world.  The cosmopolitanism that elite universities in the United States espouse has a tendency to undercut the development of their potential competition elsewhere - smothering future competitors still-borne, as it were, on the basis of a certain high-minded principle.

Call my contrary moral principle the "higher provinicialism" that Josiah Royce, the academic who went out to the semi-civilized wilds of California to further the University of California, urged as the moral ideal for the UC.  That is what a school like Harvard should strive for, not a generalized cosmopolitanism that never comes down from the jet stream to find an actual place on earth, while purporting to run the joint. But this bucks the official ideologies of multiculturalism, cosmopolitanism, and the general idea elites have that the United States should lose itself in the service of what those self-same global elites happen to think is good for the planet as a whole.

The question is what happens when the stream of admissions to universities starts heftily to favor highly qualified - make no doubt about it - students from abroad, while at the same time those same university endowments lower costs for students under federal pressure.  Those same university endowments have swollen in no small part because of massive federal, state, and local tax subsidies in the form of nonprofit exemptions compounded, in important cases, over decades adding up to whole centuries.  Shouldn't the question of whether those subsidies ought, in the first place, to serve the needs of the society that provided them be on the table in this discussion? 

Sure, there is obviously a place for cosmopolitanism and the enriching presence of many students from around the world and all that.  There is a powerful argument that American social interests are served by universities being a transmission belt to the rest of the world through education and interchange (although my experience as an academic suggests that the legitimation of radicalization and anti-Americanism are also large results produced by American higher education among its foreign students; the legitimizing and systematizing and conceptualizing of anti-American sentiment).  But those are quite different things from the dissociation and disconnection from American society and institutions that many universities are urging as their ideal admissions principles. 

There is simultaneously a large question of what happens when the current baby boomlet runs out, and universities start seeing a relative decline in applications.  Every private institution of higher education that I know of is assuming that its economic model will keep going through a higher and higher percentage of foreign students.  This is not necessarily a bad thing, but it raises serous questions as to whether the substantial tax subsidies implicit in universities as tax exempt organizations should continue in the same extent and way, particularly if universities follow the money and see themselves as increasingly as a sort of export industry conducted at home, increasingly about the needs and desires of people and places outside American society.  What is the obligation of American universities toward American society as such?  And how should that affect the substantial subsidies that American society puts toward higher education?

The political discussion over university tuitions is being conducted almost entirely as though the students in question are, and will continue to be, essentially all American students in which the impact of international admissions is too small to matter to class composition.  That is unlikely to remain the case at the margin, particularly at the elite universities with endowments large enough to be relevant to the fees question.  The composition of those student bodies needs to enter the discussion, not just tuition levels.

All best as ever,

Kenneth Anderson

ps.  I haven't been posting much to my blog, but I am going to post up this note there.

Very successful National Security Court conference, thanks to everyone

The February 1 conference announced in the previous post on the idea of a national security court went off splendidly, and I just want publicly to thank everyone who took part or attended.  We had about 200 people in attendance, which is a remarkably high number.  The lunch at which Judge Brinkema spoke was jam-packed.  And amazingly, people stayed right through the day to the final panel. 

So hooray for us!  Thanks to the panelists and speakers.  Thanks to my co-convenors, Dan Marcus and Steve Vladeck of WCL, and Ben Wittes of Brookings.  And particularly thanks to Jennifer Dabson and all the WCL event staff who made the thing happen.

We had wonderful people on the panels - see the list below.  And we were amazed and honored that people came in from out of town to attend.  We could have filled the panels from the extraordinary people sitting in the audience; the embarrassment of riches was, well, embarrassing.  Likewise, we could have filled the panels with people from my faculty at Washington College of Law, but we made an executive decision to use WCL people only to moderate panels, and give the substantive positions to people from outside the school.

I should also say that it is rare to have an event at a university in which there is a reasonable diversity of political and intellectual views; we were careful in planning to try and achieve that, and it is pretty clear to me that we did.

I hope Brookings, which co-sponsored the event, was as pleased as WCL was.

If you would like to hear audio podcasts - which can either be saved and played as a podcast or else streamed over your computer - of the sessions, you can find them at the WCL website, here.  Click on the first item, WCL podcasts, go down to Feb 1, and you will find sessions 1-3 and Judge Brinkema's address, each as a separate item.

http://www.wcl.american.edu/podcast/podcast.cfm