Friday, February 29, 2008

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


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.

[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 The original argument is in HLA Hart’s classic of jurisprudence, The Concept of Law.

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