Freely speculating on the future of the ATS in a multipolar world

Harvard Law School is hosting in a couple of weeks what is certain to be a very interesting small conference on the Alien Tort Statute. I was lucky enough to be one of the invitees, addressing the issue of corporate liability under the ATS. I address the issue of corporate liability under the ATS, but am actually interested in it from a broader perspective, the "jurisprudential" perspective on the distinct and sharply divided "communities of interpretive authority" over such issues in the ATS as the status of corporate liability. I have written elsewhere recently (in the European Journal of International Law; I think a link directly to the paper in this post here) of the "fragmentation of communities of interpretation and authority" in international law. The ATS seems to me to offer a striking example of that. (Cross posted at OJ and VC.)

Corporate liability can be thought of as a "hinge" issue in ATS jurisprudence - a "hinge" that under (an amalgamated reading of) current holdings serves to link "international law" to "domestic law," as required by the two parts of the ATS. I don't think it is at all a correct reading of either international law or domestic law, but it seems to me an (arguably) accurate reading (there are always variations and cross-currents) of current cases and their holdings on corporate liability, including, for example, the latest Talisman ruling from the Second Circuit.

In addition to that, however, I conclude the paper (this is still in first draft, believe me, and far from even going up on SSRN as a working draft) with a speculation about whether the case law developing around corporate liability in the ATS will remain stable in a world in which the US chooses decline and allows the emergence of a genuinely multipolar world, a world in which China is a much, much bigger player, as in creditor and debtor:

I do not think, however, that the final chapter has been written on corporate liability under the ATS. In the real world, I do not think that the pushback has begun to be felt in the US or in US courts. At that point, I suspect that some will wonder whether (from the standpoint of the 'progressive integrity' of international law, the perspective I am freely (and perhaps overly-imaginatively) attributing to a Professor Greenwood or Crawford on the basis of their Talisman declarations, not from a vastly more skeptical position such as my own) the jurisprudence of the ATS has not actually undermined a systematic development of international law norms with respect to civil liability, tort liability, corporate liability, and specific bodies of norms such as labor or the environment. The future historian of international law might well conclude that the era of ATS jurisprudence, far from advancing broadly shared norms, actually undermined the possibility of firmly enacting them, in what turned out to be a final gasp of US legal hegemony, before the Era of US Indebtedness, ‘Choosing Decline’, and Multipolarity set in.

What happens, for example, when ATS suits start to be brought against Chinese corporations, for actions having no connection to the US save for the ATS itself? For very, very serious, uncontestable even abuses of labor, land, environment and other things in, say, Africa. The strictly legal questions would have been long settled under the jurisprudence of the ATS in lawsuits against MNCs based out of the US itself, Europe, Canada, or elsewhere in the industrialized democratic world (and whether those countries liked it or not). What happens then? The US government has taken a remarkably hands off attitude toward such litigation, under presidents of both parties – offering statements of interest on occasion, but not typically seeking, on some principled basis, simply to nip such litigation in the bud, rigorously and in every case in which there is no greater traditional jurisdictional base of the United States apart from the ATS itself, as contrary to the foreign policy interests or prerogatives of the political branches.

Were China to weigh in, down the road, in a world of a debtor US, would the rules being made today remain stable? I have my doubts. I raise China as the most obvious real-politik example of a party that might have both the means and the inclination to make its displeasure known by rattling, even just a bit, the debtor’s chains in the global market of Treasury debt. What the might the US government, for example, say in a statement of interest to a court, in response to a court following well-established ATS precedents of corporate and secondary liability, but this time in a case against a Chinese corporation, in the world as newly defined by Secretary of State Clinton in one of her early statements – declining in particular to get too worked up about human rights as central to the US relationship with China?

The rules currently being evolved by US courts, departing from norms as understood by much of the rest of the world, seem to me rules of corporate liability made for a world in which the “universal” and the “international” can be imagined to be enacted through the ATS – mostly, however, because there is still an American hegemony. One can call that hegemony “universal” and “international,” I suppose – provided, however, that one cloisters oneself as strictly as possible within those particular communities of authoritative legal interpretation in which ‘universal’ and ‘hegemonic’ categories do not brush up against each other and catch each other out. Ironies and antinomies of the ATS - yet again.

The NYT CIA Assassination Story

I see that I'm quoted by Mark Mazetti and Scott Shane in their New York Times article today, CIA Had Plan to Assassinate Qaeda Leaders (July 13, 2009). I'm trying hard to maintain radio silence and not blog to let my shoulder heal up, but let me say something very brief about this. Also, I only post occasionally here - mostly I post these days at Volokh Conspiracy and Opinio Juris and CTLab.

First, I'm delighted, of course, that the CIA post 9-11 was formulating plans to try and kill Al Qaeda leaders wherever they might be; if they weren't, I would certainly have a big question about what exactly the CIA value-added to national security is. Why would you have a CIA if they weren't trying to figure out covert ops to kill Al Qaeda leaders after 9-11? As for the distinction between inserting small teams or using Predators, recall that the US only began using Predators as a weapons platform in a semi-improvised way after 9-11. The obvious tactic was small team insertion, and only when it became clear that Predators could work, did the US move to that strategy.

Second, as to the international law issues involved in targeting Al Qaeda leaders, I will simply refer you over to a new paper, soon to appear as a book chapter in a volume edited by Benjamin Wittes on reforming counterterrorism policy, on targeted killing. That paper has a particular point, however. It says that of course the US targeted killings of Al Qaeda terrorists is a legal act of self defense under international law. (You can get a free pdf download, here, at SSRN, "Targeted Killing in US Counterterrorism and Law.")

The longer term question to which the paper mostly addresses itself is whether, in the face of withering international legal criticism, from UN special rapporteurs, human rights groups, academics, etc. - what we might call the international "soft law" crowd - the US, and specifically the Obama administration, will insist on the traditional doctrines of self defense, including against terrorists who find safe haven in states that are unwilling or unable to deal with them. The problem specifically for the Obama administration is that on the one hand it has - correctly in my view, for strategic, legal, and humanitarian reasons - embraced targeted killings via Predator strikes.

On the other hand, a lot of the administration's international legal apparatus is highly sympathetic to the "soft law" position, and in other circumstances would like to embrace positions that, however noble in the abstract, would effectively rule out targeted killing as the US pursues them. And particularly rule them out in future situations in which Al Qaeda is not involved, in which there is no AUMF, no Security Council resolutions, etc., to point to. It is important for the administration to keep in mind that the US will eventually face different terrorist enemies - there is, so to speak, life - and death - after Al Qaeda.

The paper is concerned with defending the US legal space for targeted killing undertaken as self defense, but not within the context of an armed conflict as defined under international humanitarian law. If that seems like a mouthful, I'll just refer you to the paper.

Finally, the US domestic law question of assassination. The title of the article uses the word assassination. This is unfortunate, not because it is not accurate in the sense we ordinarily use the term, but because US law and regulation contains a ban on "assassination." Assassination in that specific legal sense is prohibited - but also not defined in US law or regulation. However, successive administrations dating from the 1980s have taken the position - e.g., the speech in 1989 to which the article refers - that a targeted killing is not (prohibited) "assassination" if it meets the requirements for self-defense under international law, including self defense against terrorists. As then-Dept of State legal advisor Abraham Sofaer put it, the assassination ban does not apply to otherwise "lawful killings undertaken in self defense against terrorists." I don't know if this is open access online; it was issued in the Military Law Review in 1989, and Judge Sofaer and others have told me that it was vetted with DOD and the White House as being US policy and interpretations of law. I am not aware of anything that has overturned it as US interpretation of the US assassination ban.

Okay, I'm trying very hard not to blog at the moment and give my should some time to heal, so I am going to post this up and ... Exeunt Left. Or possibly exit right.

My new EJIL article on the Rise of International Criminal Law

I have a new essay just published yesterday in the European Journal of International Law, titled (if link doesn't work and you still want the piece, email me and I'll send it that way):

The Rise of International Criminal Law: Intended and Unintended Consequences.
(EJIL, Vol. 20, No. 2, pp. 331-358, June 2009.)

EJIL is a subscriber wall Oxford UP journal, but I’m allowed to put up a link to the full text here on my personal website. If you’d like to read it, this link is supposed to work to the full text.

Abstract:

The rise of international criminal law has been one of the remarkable features of international law since 1990. One of the less-explored questions of international criminal law is its social effects, within the international community and the community of public international law, in other parts and activities of international law. In particular, what are the effects of the rise of international criminal law and its emerging system of tribunals on the rest of the laws of armed conflict? What are the effects upon apparently unrelated aspects of humanitarian and human rights law? What are the effects upon other large systems and institutions of public international law, such as the UN and other international organizations? As international criminal law has emerged as a visible face of public international law, has it supplanted or even ‘crowded’ other aspects and institutions of public international law? This brief article offers a high-altitude, high-speed look at the effects of international criminal law on other parts of public international law and organizations.

I want to thank EJIL editor and old friend Joe Weiler for commissioning this essay - and then running it when it turned out to be a somewhat strange piece for EJIL. It draws on my personal experience regarding the early days of the then-proposed ICTY, among other things. It is a fast, impressionistic overview of ways in which the emerging system of tribunals might be thought to “crowd out” other parts of public international law. It ranges really, really widely, as the table of contents shows:

• Regimes of mutual benefit and regimes of altruism
• Alternative to intervention?
• Earning the moral right to administer universal justice
• Reprisal and reciprocity in the laws of armed conflict
• The rise of the machines
• Individual liability and the loss of the laws of war as rules for the social organization of war between groups
• Does anyone ‘own’ the rules of war anymore?
• An end-run around the P-5?
• Neglecting the UN?

Everything from battlefield robots to the P-5 ... no lack of topics here in a short space. Although I think it will drive some readers crazy, and for a good reason - it takes the punchbowl of each topic away just as the party gets going - I do like it, and I think once in a while it is useful to have a high altitude survey that seeks to reveal something about changes to the landscape below. That’s the intent, anyway.

Freedom in Iran

Here’s hoping liberty prevails in Teheran. (I've changed the color in minor gesture of solidarity.) I understand that from the White House's point of view, it's all ... complicated. Indeed it is. But how hard is it to say, the United States stands for, and stands with, liberty?

UN Collective Security and the US Security Guarantee ... my new CJIL paper at SSRN

The Chicago Journal of International Law has a new symposium issue coming out on the “multipolar” world and its implications for international law and institutions. I’m pleased to say I have an article in the issue, titled “United Nations Collective Security and the United States Security Guarantee: The Security Council as Talking Shop of the Nations,” 10 Chicago Int’l Law Journal 1 (June 2009) pp. 55-90. I’ve posted it up to SSRN at the link. Here is the abstract, in case anyone is interested:

This essay considers the respective roles of the United Nations and the United States in a world of rising multipolarity and rising new (or old) Great Powers. It asks why UN collective security as a concept persists, despite the well-known failures, both practical and theoretical, and why it remains anchored to the UN Security Council. The persistence is owed, according to the essay, to the fact of a parallel US security guarantee that offers much of the world (in descending degrees starting with NATO and close US allies such as Japan, but even extending to non-allies and even enemies who benefit from a loose US hegemony in the global commons such as freedom of the seas (leaving aside pirates)) important security benefits not otherwise easily obtained.

Much of the world can afford to pay lip service to UN collective security as an ideal, and to nourish it as a Platonic form, precisely because they do not have to depend upon it in fact. Not all the world falls within even the broadest conception of the US security umbrella, however, and these places include such locales as Darfur and other conflict zones in Africa. In those places, according to the paper, the US should engage with UN collective security to offer what the US will not, or cannot, offer directly.

The paper also argues that the Security Council should be understood, in a world of rising multipolarity especially, not as the "management committee of our fledgling collective security system," as Kofi Annan put it, or even as a concert of the Great Powers, but as simply the security talking shop of the Great Powers. Sometimes the Security Council can act as a collective security device, and sometimes as a concert of the Great Powers (e.g., the first Gulf War), but the condition of multipolarity argues that Great Powers are competitive and that the Security Council will find its limits, but also its role, mostly as the place for debate and argument, diplomacy successful or not - but not management of global security.

The essay also argues that those who want to see an end to loose US hegemony in favor of the supposed freedoms and sovereign equality of a multipolar world should think carefully about what they wish for. The dreams of global governance by international institutions turn out to have their greatest possibilities precisely in a world that, to a large extent, relies upon a parallel hegemon rather than collective institutions for its underlying order. In a multipolar, more competitive world, the winner is unlikely to be liberal internationalist global governance or UN Platonism or collective security, but instead the narrow, often directly commercial, interests of rising new powers such as China. The paper closes with policy advice to the United States on what it means and how it should - and should not - engage with the UN on security and the Security Council.

(The paper runs some 15,000 words and is part of a special symposium issue on a multipolar world.)

I should add that the paper also contains a substantial discussion of NATO and its relationship to the US security guarantee - with an emphasis on Raymond Aron, one of my intellectual heroes. The substance of the article figures into two chapters on security in my book on UN-US relations.

Jean-Marie's birthday

I fixed a turkey breast done in the slow cooker, very tender and juicy, and a bunch of vegetables grilled. The almond creme cake from the expensive baker was a disaster, though, with the crust ladened with enough salt to make us all gag. Anyway, Jean-Marie took this with her macbook built in camera.

Political restructuring of creditor rights - it's not just the interest rates

The point has been repeatedly and correctly made many times that the Obama administration’s political - ‘extralegal’? - pressures to force secured and senior creditors to take lesser positions than that to which they are otherwise legally entitled for the benefit of politically-favored labor unions has the effect, other things equal and most likely even other things not, of raising the interest rates that secured or senior creditors will charge similar unionized enterprises in the future.

What has been less discussed, at least so far as I‘ve seen, is the effect the administration’s moves will have on how bond covenants might be drafted into the future, in order to address the uncertainties created by these moves. For example, might we see a bond covenant in the future (analogous to existing and ubiquitous poison put provisions in favor of creditors) that would allow senior or secured creditors to put the bonds back to a corporate borrower, forcing repayment of principal plus interest, if unionization occurred at all or part of the corporation’s operations?

I can imagine litigation over the question of whether this would be a violation of unionization rights, but at first blush, it is a provision directed at the corporation, at a risk that the corporation might suffer, and the corporation’s own actions are not relevant to that risk. Why should the parties not be able to bargain in advance over who suffers the loss in the case of government interference in credit ordering? Or in the unionization that might lead to that kind of political risk? I suppose we might have a whole special section of covenants covering these risks, perhaps under the title, “Rule of Law Failure Risks” or “Favored Political Constituency Risks.”

There are lots of possibilities for covenants and other moves seeking to lessen the uncertainties. But they would have the effect of reducing the ultimate interest rate only insofar as they were taken seriously. That is, if the market did not believe that the covenants would be enforceable, because it did not trust the administration or the courts to enforce them, either those in particular or a more generalized belief that the rule of law had been impaired (imagine you are a foreign government thinking of investing in US corporate debt - is it conceivable, watching events, that you would not at a minimum think that legal rules in investor protection law had been at least somewhat impaired by these events?) then interest charged as a risk premium would not be reduced.

Tweenbots

I, for one, welcome our Tweenbot overlords! 

Sample questions from the AP Macro Exam

Via the great Greg Mankiw blog, this NYT interactive quiz - 19 sample questions from the AP macroecon exam. I got one wrong out of the 19 - but while embarrassing, I did think the question ambiguous as between short and long-run. It’s a fun quiz to take, as long as it’s not some three hour exam for real.

Bradley and Goldsmith in the WP on ATS cases, and my further question

(Cross posted with minor edits from Opinio Juris).

I am fundamentally in agreement with the Bradley-Goldsmith view as to why the Alien Tort Statute is a bad idea. I would simply repeal it as lacking connection to its original purpose and providing many perverse incentives, not to mention avenues of litigation open to aliens that are not open to US citizens.

However, I want to post up a related question. It is not so much about the ATS itself or its implications for US law or its politics. It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation - on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation - litigation in tort, not a category of international law as such at all? Doesn’t this inevitably affect the way in which the law of nations is interpreted? I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final. But my basic question stands. I have had conversations with several prominent European legal scholars over the years who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results. They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably - the discussions didn’t go that far - because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases - whether favorably or unfavorably disposed. I have searched over the years, but don’t find so much - especially criticism of the kind that I have heard in private discussion. The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law. But I might be over-remembering.

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area? Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law? I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

NYT 'Room for Debate' blog on the torture memos and Obama rejecting CIA prosecutions

Over at the New York Times’s Room for Debate Blog, a discussion of the newly released Bush-era memos on torture and CIA interrogation, and the decision by the Obama administration not to seek prosecutions of CIA officers who relied on those memos and agency legal advice. Participants include David Cole, Michael Ratner, David Rivkin, Kori Schake, and me.

(And Glenn, thanks for the Instalanche for the NYT blog!)

Happy Easter

And death shall have no dominion.
Dead men naked they shall be one
With the man in the wind and the west moon;
When their bones are picked clean and the clean bones gone,
They shall have stars at elbow and foot;
Though they go mad they shall be sane,
Though they sink through the sea they shall rise again;
Though lovers be lost love shall not;
And death shall have no dominion.

And death shall have no dominion.
Under the windings of the sea
They lying long shall not die windily;
Twisting on racks when sinews give way,
Strapped to a wheel, yet they shall not break;
Faith in their hands shall snap in two,
And the unicorn evils run them through;
Split all ends up they shan't crack;
And death shall have no dominion.

And death shall have no dominion.
No more may gulls cry at their ears
Or waves break loud on the seashores;
Where blew a flower may a flower no more
Lift its head to the blows of the rain;
Though they be mad and dead as nails,
Heads of the characters hammer through daisies;
Break in the sun till the sun breaks down,
And death shall have no dominion.

(Dylan Thomas, Twenty-five Poems, 1936.)

"Critical Studies on Terrorism"

Oh dear, oh dear, oh dear. Thanks to Mike Innes over at CTLab, (where I’ve been blogging for the past week on robots and PW Singer’s Wired for War), this note on a journal devoted to “critical terrorism studies” and a review of the journal. Let me simply raid Mike:

In the latest issue of Studies in Conflict and Terrorism,  David Martin Jones (University of Queensland) and M.L.R. Smith (King's College London), write in "We're All Terrorists Now: Critical - Or Hypocritical - Studies "On" Terrorism", about the new school of "critical terrorism studies" based out of the University of Wales, Aberystwyth:

ABSTRACT: This article reviews the new journal Critical Studies on Terrorism. The fashionable approach that this journal adopts towards the contemporary phenomenon of terrorism maintains that a “critical” and “self-reflexive” approach to the study of terrorism reveals a variety of shortcomings in the discipline. These range from a distorting overidentification with the Western democratic state perspective on terrorism to a failure to empathize with the misunderstood, non-Western, “other.” This review examines whether the claims of the critical approach adds anything, other than pedantry and obscurity, to our understanding of the phenomenon. It concludes that it does not.

I was wondering when this might happen. The authors go on to describe the "congealed prose, obscure jargon, philosophical posturing, and concentrated anti-Western self-loathing that comprise the core of this journal’s first edition." Ouch. The article's behind a pay firewall, but here's the conclusion:

In the looking glass world of critical terror studies the conventional analysis of terrorism is ontologically challenged, lacks self-reflexivity, and is policy oriented. By contrast, critical theory’s ethicist, yet relativist, and deconstructive gaze reveals that we are all terrorists now and must empathize with those sub-state actors who have recourse to violence for whatever motive. Despite their intolerable othering by media and governments, terrorists are really no different from us. In fact, there is terror as the weapon of the weak and the far worse economic and coercive terror of the liberal state. Terrorists therefore deserve empathy and they must be discursively engaged.

At the core of this understanding sits a radical pacifism and an idealism that requires not the status quo but communication and “human emancipation.” Until this radical postnational utopia arrives both force and the discourse of evil must be abandoned and instead therapy and un-coerced conversation must be practiced. In the popular ABC drama Boston Legal Judge Brown perennially referred to the vague, irrelevant, jargon-ridden statements of lawyers as “jibber jabber.” The Aberystwyth-based school of critical internationalist utopianism that increasingly dominates the study of international relations in Britain and Australia has refined a higher order incoherence that may be termed Aber jabber. The pages of the journal of Critical Studies on Terrorism are its natural home.

Fred Siegel on the origins of American liberalism at Telos blog

Fred Siegel, the historian who wrote the biography of Rudy Giuliani a couple of years ago, has a post up at the blog of Telos, the journal of critical theory, titled "Taking Communism Away from the Communists: Origins of Modern American LIberalism."  

Fred is one of the clearest academic writers you can imagine, and this piece is a terrifically informative, well written discussion of the rise of modern American liberalism from an intellectual historian's view.  It's a terrific piece, and for readers who are suddenly trying to figure out how we got a social democrat or a socialist or something into the White House and what that means in the long view of American history, this is it.

If you are an intellectual, you really should subscribe to Telos! Very important reading!

Resolving the tension between liberal internationalism and the 'new liberal realism'

The Obama administration’s new foreign policy at this early point in time is mostly built around the proposition of ‘engagement’. As many folks have pointed out - long preceding the Obama administration - ‘engagement’ is a process, not a substantive policy or set of policy ends. It is an affect, not an outcome.

My now nearly completed book on UN-US relations, Returning to Earth, talks a lot about engagement - it seeks to offer policy heuristics for different types of activities of the US at the UN that would help the US figure out when, how, and with whom to engage - and when not. It seeks to break engagement out according to the kind of activity at the UN - security, development, values, governance, and give a better sense of what engagement can or should mean in each. It’s not particularly deep; it’s trying to offer a set of basic heuristics. But it means I have been thinking for the last several years about the nature of engagement - in large part trying to figure out what friends of mine, many of whom have now gone into the Obama administration foreign policy agencies, meant during the past five years when they kept decrying the supposed failure of the Bush administration to engage.

But the Obama administration’s foreign policy, when it comes to some deeper orientation than merely ‘engage, engage, engage’, seems to be oscillating between two poles - the traditional left-Democratic preference for idealism and global governance through liberal internationalism, on the one hand, and what I have called the ‘new liberal realism’, on the other. These are exemplified by the contrast between the nomination of Yale Dean Harold Koh, one of the leading American liberal internationalists of our time, as the new legal adviser to the State Department, and Hillary Clinton’s blunt, unapologetic, ‘new liberal realist’ de-coupling of China policy and human rights concerns. The administration’s policy of always engage with bad guys can be seen as having elements of each - a liberal internationalist impulse to reach out to everyone in an idealist hope of finding common ground, and a ‘new liberal realist’ claim that (contrary to the insistence on human rights principles of shaming and isolating bad human rights actors that liberals used to hold) the ones you most need to talk to are your enemies.

The engagement strategy thus waffles, depending on who it is trying to convince of its virtue, between the idealism of finding common ground (Iran in Afghanistan, for example) with bad guys who might be improved, and the realism of talking to bad guys because they are bad. The result is that the ‘engage’ switch is always on, and everyone knows it. Incentives here are thus a big problem - is it better to be a bad guy with whom the Obama administration is desperate to engage, or a close ally who therefore is just another of 190 or so countries?

The most important incentive created by the always- engage policy, however, probably turns out to be with respect to the United States, not its interlocutors. A policy of always-engage has a tendency to overpromise and overreach, because it turns out - surprise! - that we don’t actually have common ground or common interests, and administrations of the past were not wrong to have identified these guys as bad guys and enemies. So the United States, in order to preserve the always-engage strategy, merely becomes what everyone else is in these kind of failed cooperation games - an insincere promiser. Maybe that makes the US extra-super-cleverly realist, those wily new-liberal-realists outsmarting everyone - or maybe it just makes the US look weak.

Liberal internationalism, to draw on Francis Fukuyama’s useful characterization of various traditional US foreign policy approaches (liberal internationalism, realism, Jacksonian nationalism, and neoconservatism) seeks to transcend the power politics of the international state of nature and govern it through international institutions and law.

The ‘new liberal realism’ seeks to unshackle American liberals from the strictures of human rights idealism and allow them a liberal form of realism by which, above all, to claim to be able to defend US security: the new liberal realism began in the liberal backlash against neoconservative democratization idealism in the Iraq war, seeking a language that would permit containment, accommodation, and, now, dialogue and discussion with dictators, abusers, and enemies. Its initial impulse was negative -a reaction against neoconservatism, which then spread to a reaction against idealism and even against being limited too strictly by human rights concerns in foreign policy, and finally to today’s form of engagement with any bad actor. The new liberal realism sometimes talks of being Jacksonian liberalism, but its roots are far shallower than that - Scoop Jackson was never an appeaser, and anyway the new liberal realism was mostly an electoral drive in the Bush years to convince skeptical voters that they could be as tough on national security as the Republicans, although, weirdly enough, not by bringing the bad guys the blessings of international law and institutions, but instead by appeasing them. It’s a telling way of looking at the world - you look tough by skipping the liberal international emphasis on law and instead emphasize your toughness by going to the bad guys and ... proposing to give them things. It would be a good thing if there were a strand of liberal realism that really did arise out of the Scoop Jackson tradition - but this is not it. Whether in Obama or Hillary Clinton’s hands, it is an opportunism derived out of the belief that the Iraq war was lost - whoops, won - well, whatever, and a desire to convince voters that Democrats are not all liberal internationalists.

But now this tension between liberal internationalism and the new liberal realism. The natural question is to ask, well, who wins the policy struggle? One answer is to kick that can down the road by a procedural response - engage, engage, engage. There’s a certain common ground between the idealism and the realism. And in any case, it doesn’t mandate
a substantive answer. But at the end of the day, I suspect that there will be a certain division of labor between liberal internationalism and the new liberal realism. It is this - and I stress it is not a fixed or absolute divide, just a tendency and matter of degree:

The new liberal realism will mostly prevail in the international, global, and transborder world. It will govern security relations - after all, it began life as a language by which to talk tough on national security to American voters. But it will also increasingly govern American-global economic relations - above all, the relationship with that country that currently owns US government and GSE debt and that same country that the Obama administration desperately hopes will buy trillions and trillions and trillions more, even if backed by dollars the Fed just printed. Human rights in China is going to take even a more backseat than it has in the past. The new liberal realism will be strongest in governing things that are ‘out there’ in the world - not completely, but in many important matters, like China.

What about liberal internationalism? Well, crucially, it too will (perhaps, this whole discussion is nakedly speculative) have its chief sphere of influence - and that will be inside the United States, institutions and law within the United States. Liberal internationalism might find that its greatest influence is as a means of altering, not places like Iran or even Burma, but the legal system of the United States itself. It fits with a general liberal world view by some American liberals that the United States is a wicked place, a parochially wicked place, which stands in need of cleansing by the institutions of human rights and universal values. Among the impediments to that moral cleansing are institutions of domestic law, the doctrine of popular constitutional sovereignty, America’s appalling lack of deference toward international institutions and values and justice.

The Obama administration seems to me unlikely to permit US security policy abroad to be made or unmade by the Security Council, the UN, the ICC, or any other institution; indications are the administration is leaving those American decisions firmly in firmly realist American hands. But it will, in my estimation, assiduously compensate by bringing the international law agenda home domestically, and pursue the remaking of internal American institutions according to the demands of the ‘international community’. John Bolton is right in saying, as he has long said, that international law as it actually touches the United States internally is in considerable part, or at least the controversial parts, about various advocates, governmental, international organization, and NGO, dissatisfied with the outcomes of American democracy and looking for an end-run around them. International law provides a vehicle for doing just that.

And that, in the end, is likely where the project of liberal internationalism finds its greatest purchase in the Obama administration. Not in security policy abroad. But in bringing foreign law to US constitutional adjudication, importing a wider set of treaty obligations into US domestic law, allowing many more claims under malleable concepts of customary international law ... none of which will have any impact on Burma or US Predator campaigns in Pakistan or, curiously, even so very much on Guantanamo, where the administration’s hypocrisy is now pretty much complete. But it is intended, and in my view is likely to have, very important - and hard to roll back, once embedded in judicial and regulatory process over two presidential terms - consequences for the people of the United States and their relationship to the state.

A great impact of the State Department in an Obama administration, as foreign ministry of the United States, in other words, might well be not with respect to the people of Darfur, or Congo, or Venezuela, or Burma, or China, or Georgia, or Russia - but Americans. Am I alone in finding that a peculiar role for the foreign ministry of the United States? The foreign policy machinery of the United States is an ambassador of sorts - but rather than one who brings the American view to the world, might turn out to be as much or more committed to bringing the global view to the Americans - imposed with the force of a re-shaped domestic law via claims of international law. All this is speculative, of course. But it does not impossible that the State Department, in its actual performance, turns out to be not so good at getting Russia to do things, but quite good at getting US courts and bureaucrats to go along with telling Americans to do things in the name of America’s international obligations.

Liberal internationalists who are serious about their world view make no apology for it, don’t, and why should they? It is an honorable view, even if I find it profoundly wrong. Yet surely I am not alone in finding something weird about the result that liberal internationalism, at least given its tension with the new liberal realism, turns out mostly to be about ‘improving’ we, the people of the United States. At the end of the day, then, international law is likely to be, under the Obama administration, about re-making Americans and their (guilty, wicked, retrograde, ignoble, parochial, un-universal, unworthy) institutions, and about conveying to those same Americans that they were quite mistaken to believe that they, the people, were ever truly sovereign over them. Maybe of course I turn out to be wrong about all this - these are just speculations about a very young administration. But it is not exactly inconsistent with the rest of Obama administration’s agenda to re-define outwards the extent and power of the state.

(Let me be clear on one thing, though tangential to this post. I support Dean Koh’s nomination, because he is an honorable man of every conceivable qualification for his post, and his is an honorable philosophy of governance, even if not one I embrace, and even if I would oppose very large parts of it as proposals for policy or law. The president is entitled to his nominees, and Dean Koh ranks among the very best. The WP’s Who Runs Gov blog says, “many defenders of Koh have wondered who is going to ... defend Koh.” Ted Olson has, and while I’m not anyone’s idea of a big name, I’m happy to do so as a center right conservative. It doesn’t mean embracing his liberal internationalism - I don’t. But in considering his nomination, that’s not the point.)

(I’ll go back and add some links and clean this up later. Work-in-progress, and I might decide to take it down in order to rework it as a longer piece on Obama administration foreign policy. I have to get back to my outline for a book on systemic risk and the financial crisis.)

(Update: Eric Posner has an excellent discussion of these issues in relation to the debate over the Koh nomination, at Volokh Conspiracy, April 6, 2009, Monday. He says something like the same as I say here: Koh is “not a cosmopolitan who seeks to sacrifice American sovereignty to foreign gods. He is a liberal who wants to move American law to the left. International law served as a handy vehicle, to be used or ignored to the extent necessary to reach this goal.”

CTLab symposium on PW Singer Wired for War

Complex Terrain Laboratory is hosting an online discussion next week on PW Singer’s new book on robotics and war, Wired for War (starting Monday, March 30).  Singer is participating and, having read his opening post, it looks to be fascinating.  It is a terrific lineup of participants, including yours truly. Check it out!

Why targeted killing? And why is robotics so crucial an issue in targeted killing?

(Given the recent Obama administration review of the Predator campaign in Pakistan, I thought it would be a useful thing to put this discussion on the table.  Welcome Instapunditeers, and thanks Glenn for the Instalanche!  You might also want to check out the ComplexTerrainLab's discussion among academics of PW Singer's Wired for War, here.)

Why targeted killing? And why the insistence that it will increase in utility as it is partnered with high-technology, stand-off platforms such as Predator drone aircraft? Why the emphasis on targeted killings and robotics? There is a fundamental strategic rationale lying behind the policy trend.

The United States has found the limits of how extensively it can wage full-scale wars with its military; even if wanted to take on more wars, it has logistical and political limits. In addition, the United States has discovered that full-on war is useful principally against regimes. Full scale, large scale war of the kind waged in Afghanistan and Iraq is useful primarily for bringing down a regime that, for example, might harbor or support terrorists, or which might be believed to be willing to supply terrorists with materials for weapons of mass destruction (WMD). Full-scale war has a crucial strategic place in national counterterrorism policy, but by its nature that role is about states and regimes fundamentally.

Large-scale military operations are less useful directly against transnational terrorists, however, who are few in number, dispersed across populations and often borders, disinclined to fight direct battles, and more efficiently targeted through narrower means. The fundamental role of war in counterterrorism is to eliminate the regimes that provide safe haven to terrorist groups; terrorist groups can be strategically understood as an extreme version of a guerrilla organization engaged in a strategy of logistical raiding – in which civilian morale and resulting manipulation of political will is the logistical target. Logistical raiders typically need a safe base to which to retreat, and full-scale war is most useful in eliminating such safe bases and convincing other regimes not to provide them. But it is not usually an efficient way of going directly after transnational terrorist groups themselves.

Law enforcement utilized outside the United States, on the other hand, has also discovered its outer limits. Many debates are still to be had over the rights of alleged terrorists once in U.S. custody. Even so, whatever they are, few would argue that going out to ‘arrest’ terrorists in, for example, Pakistan’s tribal zones is a winning policy or a serious option. The same is true in Somalia and other places, and it will be true in other places in the world in the future.

Moreover, the political costs for any U.S. administration taking and holding detainees are now enormous. Once you hold them, over time they will likely be accorded quasi-Constitutional protections by the courts, at least some version of habeas corpus. Politically, the most powerful institutional incentive today is to kill rather than capture them. The intelligence losses of killing rather than capturing in order to interrogate them are great. But since the U.S. political and legal situation has made interrogation a questionable activity anyway, there is little reason to seek to capture rather than kill. And if one intends to kill, the incentive is to do so from a standoff position, because it removes messy questions of surrender.

All this speaks to the advantages to the U.S. government of targeted killing of terrorists or persons seriously believed to be terrorists, and it also speaks to the advantages to the US government from using stand-off robotics technology to perform these attacks. But the humanitarian advantages of ‘targeted’ killing are enormously important as well, and ought to be on the table. This is particularly so given that targeted killing has come in for a barrage of criticism, legal and ethical, much of which seems motivated by the fact that it can be more discriminate than full scale military assault; the fear seems to be that it makes violence too easy to undertake. The same criticism is offered of the evolution of robotic technology that increasingly allows targeted uses of force without having to risk one’s own personnel. Not using one’s own personnel allows a party to attack without the fear of counterassault that might increase the need to use greater amounts of force and cause greater collateral damage – but it also, so it is sometimes argued, thereby reduces the inhibitions on the decision to use force.

Why this should be a downside for US strategic counterterrorism policy is not entirely evident, but clearly some critics are disturbed by it. Much of the criticism amounts to a very contemporary restatement, aimed against the targeted killing that evolving robotic and surveillance technology might permit, of a very old argument against the idea itself of the introduction of humanitarian standards in conflict (one that stretches back at least to the founding of the International Committee of the Red Cross (ICRC)), that humanitarian standards by their promulgation would reduce the disincentives to war.

Whatever the critics say, however, is unlikely to sway US strategic policy, under the Obama administration or anyone else subsequently. The humanitarian benefits of precision targeting are far more obvious than the more remote and abstract suppositions of their humanitarian costs. Their direct policy consequence is to introduce greater discrimination in targeting than full-scale military assault and large-scale war permit, through targeted killing using high technology. There is a clear humanitarian advantage favoring the use of targeted killing over full-scale war. Advancing technology allows for more discrete surveillance and therefore more precise targeting that is finally better able to minimize collateral civilian damage.

The result is a strategic incentive for targeted killing, for Predator strikes, and for increasing the quality of technology to make targeted killings both more precision targeted and more standoff. Precision targeting and standoff delivery are each independently desirable and, in combination, considerably increase the incentive. The Obama policy team did not quite run on a policy of targeted killing – but it did run on a policy of taking the fight to Al-Qaeda in Pakistan in a targeted way.
The Obama administration is right about this – right about the logic that presses toward targeting standoff killing as a necessary and available and technologically advancing part of counterterrorism. It is also right about it as a moral and humanitarian proposition in the law and policy of the use of force. It is a conclusion that is correct as well as for foreseeable future administrations, even if administrations naturally prefer to couch it in softer terms.

None of this alters the equally impeccable strategic logic underlying the use of law enforcement mechanisms in some circumstances. Nor does it alter the logic behind other forms of intelligence activities such as surveillance or financial interdiction, or even the use of open, full-on war. The strategic logic for toppling a regime in pursuit of counterterrorism during the next ten or twelve years can by no means be ruled out. But these are not disjunctive policies. They all can and should work together. But targeted killing is likely to increase as a policy preference as full-scale wars decreases in number and intensity.

The paradox, however, is that although the strategic logic for targeted killing increases in persuasiveness, the legal space for it and the legal rationales on which it has been traditionally justified are shrinking. It has been shrinking in ways that might surprise members of Congress and the Obama administration. And it is at risk of shrinking still further through seemingly innocuous, unrelated legal policy actions that the Obama administration or Congress might be inclined to take in support of various political constituencies, usually related to broadly admirable goals of human rights and international law.

U.S. law, in domestic law since the original Cold War legislation establishing the CIA in 1947 at least, and in the US view of international law, accepts a legal, political, and policy space for the use of violence by political decision not in the course of large scale, open armed conflict governed by international humanitarian law, and not in the course of judicially supervised law enforcement operations, either. ‘Violence by political decision’, in peacetime outside of open armed conflict under international humanitarian law, was a space of activity accepted and considered vital to national security throughout the long decades of the Cold War. Only in certain narrow times and places was the decades-long conflict with the Soviet Union and its allies a ‘hot’ war, open and large-scale armed conflict, clashes of armies. Political violence in the Cold War was often covert, often denied, but it was authorized and endorsed by US domestic law, although it was frequently a violation of the law of states where such activity took place and unsurprisingly was sometimes, too, a source of grave diplomatic and other friction.

This category of force is an obvious means by which to confront non-state transnational terrorists outside the territorial United States. It is especially true outside the territory of states where effective mechanisms exist for arrest, detention, investigation, trial, and punishment, or alternatively extradition, of suspected terrorists. Regimes that have allied themselves to terrorist organizations – the Taliban in Afghanistan – might be toppled. Failed states might require large-scale military action in order to block the use of territory as a safe haven by terrorist groups. But as a strategic matter, actual attack on a physically small number of terrorists embedded among civilians is often best served by attacks made as physically precise and discrete as surveillance and targeting technology allow.

Compensation models on Wall Street

Interesting discussion tonight in my financial crisis class on compensation systems on Wall Street, and the misalignment of incentives short term and long term.

The fundamental misalignment of interests in compensation in the financial firms is that a two fold misalignment:

First, the players think of themselves as free agents, and their annual bonuses as performance-based awards for how well they did that year. But although they think of their bonuses as performance based, the fact that it is based around performance in a single year means that it does not reflect the true economic performance of their work. We won’t actually know that for some time to come, as the bets made that year pay off or not down the road.

Second, therefore, the compensation paid to the players is not really performance based, as though to free agent independent contractors being paid for their performance. It is compensation for labor, even if highly skilled labor, but not different in principle from that of other employees. How do we conclude this? Because although the actual performance of the trades, bets, and other actions will not be known for years to come, the players have been compensated now, this year - and there is no clawback arrangement in case it turns out that it all goes bad. That’s how an employee paid for his or her labor is treated - yes, there is a performance component, but if performance of an employee is poor, he or she is terminated now, no one demands that he or she return the past five years of salary. That is one misalignment - players think of themselves as compensated as free agents but in fact the timing indicates they are compensated as employees.

The second misalignment is that players are compensated in timing as employees - they are paid now and there is no clawback for bad bets. But while the timing of compensation is as for employees, the amount is as though they were equity participants, taking risks themselves and not merely as agents for the firm. The players get the best of both worlds - timing as mere employees selling their labor but amount as though they had their own money at risk, when in fact they don’t. (The fact that poor performance means getting fired or no bonus this year isn’t different in principle from other employees - to make it different, you’d have to claw back past pay because it didn’t pay off.) But the best of both worlds is bad on a welfare basis and bad for the firms, if the firms ever have to worry about the bets paying off beyond the relevant compensation year.

True love and congratulations to Althouse

Althouse finds true love. Actually, I want to say congratulations to Althouse’s beloved, for having pursued and wooed and won Professor Althouse via quite possibly the most unlikely vehicle for true love on the planet ... the comment thread. Wow!

Ne serait-ce point un <hegemon> lasse de son metier?

The world longs for an agreeable America. America longs to be agreeable. Why not, after all? After the hardness and harshness of the Bush years, you are either with us or against us, our war against terrorism is the measure of all things, the closed fist of military power and the open, greedy, grasping palm of the global reserve currency, ready to take, the rest of the world wants an America that goes on a Listening Tour. And America today is eager to listen, is she not? Smart diplomacy, reboot, reset, and above all re-engage, with friends, allies, enemies, anyone who wants to talk. We are the new multilateralists and the UN is a good place to show it.

This essay has addressed throughout the strategic ambiguity of multilateralism, its ability to be, on the one hand, the device of coordination, even highly robust coordination, among sovereigns. But also how different the meaning of multilateralism, on the other, if it is imagined as a forward-looking, expectation-based vanguard-party for genuine global governance through liberal institutions of law that presumably will transcend mere international power politics. But multilateralism can also exhibit another form of strategic ambiguity – this one particularly focused upon the hegemon, the superpower, the hyperpower, the dominant power that has … grown tired of its calling, lasse de son métier.

What happens when the hegemon decides that it wants to turn inward? What becomes a hyperpower most, when it decides that the parlous state of its domestic economy – despite being intimately intertwined with nearly all of the global economy – requires that it put the issues of the previous eight years, foreign policy and war, terrorism and counterterrorism, issues of the global order, on hold, and focus itself upon its domestic policy and politics? How best to put that decision to the rest of the world?

America has enemies who would rejoice if the US were to forsake its role as provider of hegemonic order. It also has friends and allies who would be glad to embrace a ‘multilateral’ America – not realizing that America has something else in mind, or perhaps realizing it, but still on multilateral-autopilot. But where is Aron? Where is Raymond Aron? Or for that matter, De Gaulle? What would they say? You can trust an America that is mostly about its interests, a little about its ideals, even if you have to denounce it sometimes as a unilateralist in order to keep it and you in the game; you can trust an America that undiplomatically, rudely even, declares its interests and its ideals, puts them first, and invites others to go along with it; multilateralism is great if it means you can have some influence on the plans of America, but only if you can still trust that America plans to carry out its plans because they’re still its rather than yours. An America that suddenly wants to work the hardest, most intractable, hard-realism problems through the UN? What is this? An America that believes that the multilateral processes of the Security Council are the right way to pursue foreign policy because those processes treat the US as just another of the big boys in the world? The biggest, sure, indispensable, even, if you want to play the flatterer, but that’s neither here nor there – hey, we’re just another player in the game, everybody, even if we’re big or even the biggest, hey, we’re just another player. What would Aron say to that?

It is, after all, what the UN theorists always saw as the proper role for America – all that marvelous power, hard and soft, at the disposal of global institutions, the power of a mighty sovereign infused into and transformed by the legitimacy of an international institution, a global constitutional order with teeth at long last. It is a beautiful dream, power and legitimacy that equal authority. But, just as with Nato, it does not work that way. No. Friends, allies, even countries that do not much like the US but rely on it for a certain amount of order, both economic and security: be wary, O world, of an America that promises a smiling multilateralism.

Perhaps it is sincere. But perhaps it is not. Is the uncertainty killing you yet? But we’re all multilateralists now, we mean our global promises, just like you – don’t you? Perhaps America has grown tired of its global responsibilities and just wants a good night kiss from its friends and allies and then a good rest, though what this might mean in a competitive, multipolar, rising-new-power, increasingly mercantilist-with-nukes world, who can know, but maybe we’re willing to give it a try. Perhaps it has decided to really join the legitimate global system of the UN and embrace governance through multilateral institutions after all, and perhaps it has decided, too, that it is less effort to do what others do, multilateralism as others do it, to engage in insincere promises and toss hard things to the UN, to the Security Council, to institutions that will allow America to focus on its fiscal problems and unemployment and education and health care and social security: the President is available for speeches in the larger foreign capitals, particularly those holding large amounts of US Treasury debt, and anyway, he already did Berlin, watch it on Youtube, but as for Iranian nukes and North Korean missiles, Russian expansionism and natural gas blackmail, Chinese protection for Sudan in the Security Council and the always-present question of war in the Taiwan straits, the collapse of Eastern European economies, Mexico-the-narco-failed-state and the rise of Britain-exporter-of-global-jihad, and the ever-imminent war between India and Pakistan that constantly risks, against all our multilateral hopes and dreams, reversion to its six-decade mean, well, remember, we’re multilateralists now, and the US is a good global player, a team player in the big leagues of multilateralism, and if the US acted like a bully, wouldn’t everyone just hate us, and haven’t we had enough of the hate?

America just wants to be loved and henceforth we will measure the success of our foreign policy according to the Gallup global polls that so fascinate our media, foreign policy experts, and Department of State. It’s empirical! And also – if it’s not too much to ask – America wants not to have too much to do with anyone else, except on a strictly commercial and, okay, okay, sometimes charitable, do-gooding basis. Got that part? We’ve got our own problems and our own issues, if you haven’t noticed. We’ve realized multilateralism is good for that, though not necessarily the way you thought: we plan, by the way, to be multilateralists just like you. We’ll even pay over our .7% GDP for development, and to the corruptniks, rent-seeking kleptocrats at the UN, no less, because frankly it’s easier to send the check to one address than try and keep all those Africans alive on retrovirals that need constant attention, constant organization, constant management, constant unilateral care – but then will you just fuck off and leave us alone to figure out our new social-democratic tax system? You asked all those years why the United States couldn’t be more like Sweden. Or maybe it was Holland or Finland or Denmark or Luxembourg or Andorra. Well, we can, we can, we can be a well-run little social democratic welfare state of modest multilateral mien, and a real joiner at the UN, too, inchallah, a member of the Human Rights Council, proud multilateral sponsor of Durban III, IV, and V, and maybe even see an American as President of the General Assembly someday, a good multilateral day, if we pay enough attention to us and stop paying so much attention to you.

(This is a bit of a manuscript on UN-UN relations I’ve been working on that won’t survive the editing cut, because even I will find it too cute, so I thought I’d stick it up here so that it won’t get lost forever. The book, in which I assure you these passages will not appear, is titled Returning to Earth: Abiding Principles of Relations Between the United States and the United Nations, for the Obama Administration and Beyond, from Rowman and Littlefield, forthcoming 2009 inchallah.)

Madrid, 11 March, five years on

Jose Guardia, of Barcepundit, posts in memoriam for the victims of the Madrid Atocha train station bombing, five years on. My family and I were living in Spain when it occurred; my views on it were aired in a Weekly Standard article. Here to the memory of those who died and my continuing sympathy to their families.

Eva Belén Abad Quijada, española, 30 años
Óscar Abril Alegre, español, 19 años
Liliana Guillermina Acero Ushiña, ecuatoriana, 26 años
Florencio Aguado Rojano, español, 60 años
Juan Alberto Alonso Rodríguez, español, 38 años
María Joséfa Alvarez González, española, 48 años
Juan Carlos Del Amo Aguado, español, 28 años
Andriyan Asenov Andrianov, búlgaro, 22 años
María Nuria Aparicio Somolinos, española, 40 años
Alberto Arenas Barroso, español, 24 años
Neil Hebe Astocondor Masgo, peruano, 34 años
Ana Isabel Avila Jiménez, española, 43 años
Miguel Ángel Badajoz Cano, español, 34 años
Susana Ballesteros Ibarra, española, 42 años
Francisco Javier Barahona Imedio, español, 34 años
Gonzalo Barajas Díaz, español, 32 años
Gloria Inés Bedoya, colombiana, 40 años
Sanaa Ben Salah Imadaquan, española hija de marroquíes, 13 años
Esteban Martín De Benito Caboblanco, español, 39 años
Rodolfo Benito Samaniego, español, 27 años
Anka Valeria Bodea, rumana, 26 años
Livia Bogdan, rumana, 27 años
Florencio Brasero Murga, español, 50 años
Trinidad Bravo Segovia, española, 40 años
Alina Maria Bryk, polaca, 39 años
Stefan Budai, rumano, 37 años
Tibor Budi, rumano, 37 años
María Pilar Cabrejas Burillo, española, 37 años
Rodrigo Cabrero Pérez, español, 20 años
Milagros Calvo García, española, 39 años
Sonia Cano Campos, española, 24 años
Alicia Cano Martínez, española, 63 años
José María Carrilero Baeza, español, 39 años
Álvaro Carrion Franco, español, 17 años
Francisco Javier Casas Torresano, español, 28 años
Cipriano Castillo Muñoz, español, 55 años
María Inmaculada Castillo Sevillano, española, 39 años
Sara Centenera Montalvo, española, 19 años
Oswaldo Manuel Cisneros Villacís, ecuatoriano, 34 años
Eugenia María Ciudad-Real Díaz, española, 26 años
Jacqueline Contreras Ortiz, peruana, 22 años
María Soledad Contreras Sánchez, española, 51 años
María Paz Criado Pleiter, española, 52 años
Nicoleta Diac, rumana, 27 años
Beatriz Díaz Hernandez, española, 30 años
Georgeta Gabriela Dima, rumana, 35 años
Tinka Dimitrova Paunova, búlgara, 31 años
Kalina Dimitrova Vasileva, búlgara, 31 años
Sam Djoco, senegalés, 42 años
María Dolores Durán Santiago, española, 34 años
Osama El Amrati, marroquí, 23 años
Sara Encinas Soriano, española, 26 años
Carlos Marino Fernández Dávila, peruano, 39 años
María Fernández del Amo, española, 25 años
Rex Ferrer Reynado, filipino, 20 años
Héctor Manuel Figueroa Bravo, chileno, 33 años
Julia Frutos Rosique, española, 44 años
María Dolores Fuentes Fernández, española, 29 años
José Gallardo Olmo, español, 33 años
José Raúl Gallego Triguero, español, 39 años
María Pilar Gamiz Torres, española, 40 años
Abel García Alfageme, español, 27 años
Juan Luis García Arnaiz, español, 17 años
Beatriz García Fernández, española, 27 años
María de las Nieves García García-Moñino, española, 46 años
Enrique García González, dominicano, 28 años
Cristina Aurelia García Martínez, española, 34 años
Carlos Alberto García Presa, español, 24 años
José García Sánchez, español, 45 años
José María García Sánchez, español, 47 años
Javier Garrote Plaza, español, 26 años
Petrica Geneva, rumana, 34 años
Ana Isabel Gil Pérez, española, 29 años
Óscar Gómez Gudiña, español, 24 años
Felix González Gago, español, 52 años
Ángelica González García, española, 19 años
Teresa González Grande, española, 38 años
Elías González Roque, español, 30 años
Juan Miguel Gracia García, español, 53 años
Javier Guerrero Cabrera, español, 25 años
Berta María Gutiérrez García, española, 39 años
Sergio de las Heras Correa, español, 29 años
Pedro Hermida Martín, español, 51 años
Alejandra Iglesias López, española, 28 años
Mohamed Itaiben, marroquí, 27 años
Pablo Izquierdo Asanza, español, 42 años
María Teresa Jaro Narrillos, española, 32 años
Oleksandr Kladkovoy, ucraniano, 56 años
Laura Isabel Laforga Bajón, española, 28 años
María Victoria León Moyano, española, 30 años
María Carmen Lominchar Alonso, española, 34 años
Myriam López Díaz, española, 31 años
María Carmen López Pardo, española, 50 años
María Cristina López Ramos, española, 38 años
José María López-Menchero Moraga, español, 44 años
Miguel de Luna Ocaña, español, 36 años
María Jesús Macías Rodríguez, española, 30 años
Francisco Javier Mancebo Záforas, español, 38 años
Ángel Manzano Pérez, ecuatoriano, 42 años
Vicente Marín Chiva, español, 37 años
Antonio Marín Mora, español, 43 años
Begoña Martín Baeza, española, 25 años
Ana Martín Fernández, española, 43 años
Luis Andrés Martín Pacheco, español, 54 años
María Pilar Martín Rejas, española, 50 años
Alois Martinas, rumano, 27 años
Carmen Mónica Martínez Rodríguez, española, 31 años
Míriam Melguizo Martínez, española, 28 años
Javier Mengíbar Jiménez, español, 43 años
Álvaro de Miguel Jiménez, español, 26 años
Michael Mitchell Rodríguez, cubano, 28 años
Stefan Modol, rumano, 45 años
Segundo Víctor Mopocita Mopocita, ecuatoriano, 37 años
Encarnación Mora Donoso, española, 64 años
María Teresa Mora Valero, española, 37 años
Julita Moral García, española, 53 años
Francisco Moreno Aragonés, español, 56 años
José Ramón Moreno Isarch, español, 37 años
Eugenio Moreno Santiago, español, 56 años
Juan Pablo Moris Crespo, español, 32 años
Juan Muñoz Lara, español, 33 años
Francisco José Narváez de la Rosa, español, 28 años
Mariana Negru, rumana, 40 años
Ismael Nogales Guerrero, español, 31 años
Inés Novellón Martínez, española, 30 años
Miguel Ángel Orgaz Orgaz, español, 34 años
Ángel Pardillos Checa, español, 62 años
Sonia Parrondo Antón, española, 28 años
Juan Francisco Pastor Férez, español, 51 años
Daniel Paz Manjón, español, 20 años
Josefa Pedraza Pino, española, 41 años
Miryam Pedraza Rivero, española, 25 años
Roberto Pellicari Lopezosa, español, 31 años
María del Pilar Pérez Mateo, española, 28 años
Felipe Pinel Alonso, español, 51 años
Martha Scarlett Plasencia Hernandez, dominicana, 27 años
Elena Ples, rumana, 33 años
María Luisa Polo Remartinez, española, 50 años
Ionut Popa, rumano, 23 años
Emilian Popescu, rumano, 44 años
Miguel Ángel Prieto Humanes, español, 37 años
Francisco Antonio Quesada Bueno, español, 44 años
John Jairo Ramírez Bedoya, colombiano, 37 años
Laura Ramos Lozano, hondureña, 37 años
Miguel Reyes Mateos, español, 37 años
Marta del Río Menéndez, española, 40 años
Nuria del Río Menéndez, española, 38 años
Jorge Rodríguez Casanova, español, 22 años
Luis Rodríguez Castell, español, 40 años
María de la Soledad Rodríguez de la Torre, española, 42 años
Ángel Luis Rodríguez Rodríguez, español, 34 años
Francisco Javier Rodríguez Sánchez, español, 52 años
Ambrosio Rogado Escribano, español, 56 años
Cristina Romero Sánchez, española, 34 años
Patricia Rzaca, polaca, 7 meses
Wieslaw Rzaca, polaco, 34 años
Antonio Sabalete Sánchez, español, 36 años
Sergio Sánchez López, español, 17 años
María Isabel Sánchez Mamajón, española, 37 años
Juan Antonio Sánchez Quispe, peruano, 45 años
Balbina Sánchez-Dehesa Francés, española, 47 años
David Santamaría García, español, 23 años
Sergio dos Santos Silva, brasileño, 28 años
Juan Carlos Sanz Morales, español, 33 años
Eduardo Sanz Pérez, español, 31 años
Guillermo Senent Pallarola, español, 23 años
Miguel Antonio Serrano Lastra, español, 28 años
Rafael Serrano López, español, 66 años
Paula Mihaela Sfeatcu, rumana, 27 años
Federico Miguel Sierra Serón, español, 37 años
Domnino Simón González, español, 45 años
María Susana Soler Iniesta, española, 46 años
Carlos Soto Arranz, español, 34 años
Mariya Ivanova Staykova, búlgara, 38 años
Marion Cintia Subervielle, francesa, 30 años
Alexandru Horatiu Suciu, rumano, 18 años
Danuta Teresa Szpila, polaca, 28 años
José Luis Tenesaca Betancourt, ecuatoriano, 17 años
Iris Toribio Pascual, española, 20 años
Neil Torres Mendoza, ecuatoriano, 38 años
Carlos Tortosa García, español, 31 años
María Teresa Tudanca Hernández, española, 49 años
Jesús Utrilla Escribano, español, 44 años
José Miguel Valderrama López, español, 25 años
Saúl Valdez Ruiz, hondureño, 44 años
Mercedes Vega Mingo, española, 45 años
David Vilela Fernández, español, 23 años
Juan Ramón Zamora Gutiérrez, español, 29 años
Yaroslav Zojniuk, ucraniano, 48 años
Csaba Olimpiu Zsigovski, rumana, 26 años

US Truth Commission? Debate at NYT Room for Debate Blog

The NYT Room for Debate blog is kind enough occasionally to invite me to contribute on law topics. We recently had a mini-debate on the question of whether Congress should empanel some kind of “truth commission” to deal with issues of torture and other things from the Bush administration. I was the voice in opposition. Other contributors were David Cole, Michael Ratner, Margaret Satterthwaite, and Jenny Martinez. A good time had by all, etc. - it’s a good short summary of the arguments.

It generated a lot of comments - several thousand rather than the usual several hundred - from Times readers around the country. If there was anything that surprised me in the comments, it was the number that simply said, the economy is too urgent, it’s time to move on and deal with what’s in front of us. I was also struck by how relatively few people commenting seemed to understand that any discussion of the Bush administration’s policies would inevitably require discussion of senior congressional Democrats who were all briefed on detention, interrogation, and rendition policies. Commentators seemed largely unaware of the Congressional oversight role.

The Room for Debate blog is a good forum for discussion, by the way - thoughtful, very well-edited, many fun topics across a wide range of issues.

Happy 200th birthday to Abraham Lincoln - and a reflection on Lincoln and the ethics of war

(Cross-posted from Opinio Juris.)

Two hundred years of Lincoln, February 12, 1809. ... what, if anything, does that Lincoln fellow, the rural rube from the wild edges of the American frontier, have to do with international law?  Here are a couple of suggestions.

First, although it was far from Lincoln's first or central war aim, emancipation.  The Emancipation Proclamation, as Howard Jones observes in his study of Lincoln's war diplomacy, was timed in large part to stem fears of Britain recognizing the Confederacy.  Britain had concluded as a military matter that despite the population and industrial advantages of the North, the South was simply too large to be successfully conquered and held, and that as humanitarian matter, not to mention ending the economic disaster to the British cotton workers deprived of Southern cotton, the seesawing, inconclusive but fantastically bloody battles increasingly characterizing the "total war" should be brought to an end.  Anti-slavery sentiment was strong in Britain, but economic privation from the cotton shortage high - the vote of British mill workers in at least one instance, however, to urge that Britain not recognize the Confederacy (despite the unemployment and privations) out of anti-slavery feeling being one of those rare moments of heroic cosmopolitan self-sacrifice.  Since Lincoln's war aims up to that point did not include freeing the slaves, but simply a return to the status quo ante, Britain's government saw no reason why it should support the North over the South.  The Emancipation Proclamation was intended in part, and timed in part, to make it that much more difficult for Britain to do so.  In that regard it somewhat backfired, however, since it reached only to the states in rebellion - as British ministers observed, it reached only to the places where the Union writ did not extend, and did nothing for the slaves where it did.  But British ministers also recognized that it had set the Union along the inexorable path of full emancipation, and Britain refrained from recognition.

Second, Lincoln's First Inaugural Address set forth an argument that resonates down to today of the principle of democratic governance.  It is at once the most lawyerly argument perhaps ever offered as an inaugural address in the United States, an argument drawn quite specifically from the commercial law of partnership, of when it is permissible for a partner to withdraw and when not, and yet also exquisitely passionate ("I am loathe to close ... we must not be enemies ... the better angels of our nature").  The concern in that address is to say that the American experiment in democratic self-governance cannot be an exercise in which, each time a party is unhappy with constitutional arrangements to which it has given binding consent, it simply leaves.  The result would be an ever subdividing polity until nothing is left - and it becomes prey to autocracies from without.  

The argument, an argument for Union, by force if necessary, has served ever since as an argument in civil wars - mostly recently seen in arguments from Belgrade over the status of Kosovo, and if rump Serbs in some part of Kosovo were one day to decide to form their own independent enclave, it will figure again, only this time from Pristina.  The argument against division is sharply contested today - pitting democratic self governance of the majority against arguments from self-determination, and my guess is that most people today, me included, think that union or separation is really decided by facts and circumstances on the ground, messy, long running, historical - is anyone willing to go to war over Quebec?  Once one separates the question of slavery from the Civil War, was Lincoln right - that question reverberates in many contests around the world.  But it also reverberates in a different way in the contemporary world, as official ideologies of toleration of differences in Western society gradually shift away from the Voltaireian notion of toleration to a language of official multiculturalism that is, at bottom, simply the re-creation of religious communalism in societies that are less and less liberal, in the sense of the neutral application of the rule of law to individuals in the public sphere, and increasingly centered around governance of individuals through their group and communal identifications: a reasonably apt description of Western Europe's direction and perhaps eventually America's as well.  Communalism, however politically expedient for a society trying to manage identity conflicts, is still illiberalism.

But the First Inaugural and the Second are each premised upon another argument that continues to echo within international law: the debate over democratic sovereignty - sovereignty vested in the People and investing the government with authority and legitimacy from below - and global governance by some globally federal body.  It is a fundamental divide in political culture - is the source of constitutional legitimacy the people in some direct sense, voting sense, ballot box sense, or is it some universal law or values or something from out there representing what the People would do if they were universally good.  Each side can, in some way, claim the sovereignty of the people, but one is far more their direct expression than the other, and on this the differences between political culture in America and Europe are considerable.  Either way, we owe to Lincoln a definition of "sovereignty" that is unmatched for its economy of expression: a "political community, without a political superior." 

Finally, the Second Inaugural is an object of study and, in American constitutional religion, veneration really, as Lincoln's anguished attempt to justify a war and its war cost, in blood and treasure: not an unfamiliar question within international law and politics.  I have always found it remarkable how much certain passages of the Second Inaugural echo Clausewitz, that one embarks upon war, but the frictions and passions of war make it impossible to confine it as one thought at the outset.  It is also an address that might in some ways be characterized as the "Anti-Versailles": Lincoln was urged, particularly by radical abolitionists of his own Republican Party, to pin the blame, and the cost, and the burdens - reparations, even - for the war upon the South.  He refused to do so, and the Second Inaugural offers his argument for why not.  It is a remarkable argument, because it says, in effect, we fought for Union, but the Union is of north and south; if the burdens of the war were imposed solely on the south, it would make a mockery of the cause - Union - for which we fought; the burden, and in particular the moral evil of slavery, falls upon the whole political community.  But then we note - with great importance to international law and conflict - this argument only really makes sense in the context of a political community, and war within a political community - I said anti-Versailles, but in an important sense, the argument of the Second Inaugural is not universal, as among political communities, but only applicable within a political community divided within itself.

The Second Inaugural is a current study for me, however, mostly for a quite different reason, one going to the ethics of war.  The traditional question of the ethics of war - just war theory, other forms of ethical debate about war, including its expression in both jus in bello and jus ad bellum - is the right and wrong, good and bad, of war.  Is it ever justified to resort to war?  Can there ever be moral and, by extension, limits on war, or are we in the Hobbesian state of nature in which no limits can be admitted because we are subject to 'a necessity of nature' in seeing after our own survival.  The Second Inaugural, however, raises a quite different, and really logically prior, question in the ethics of war, one not usually addressed, indeed hardly ever addressed:  how is one to know the rights and wrongs, good and bad, of war?   Each side "prays to the same God," after all, reads "from the same Bible"; yet both cannot be right, or perhaps neither is right, or fully right, or perhaps there is no right and wrong of it at all, and what is left is merely the application of force, as a matter of mere preference but not morality as such.  Is it possible to know, and if it is not possible fully to know, how then should one act, when the consequences involve the lives of hundreds of thousands?

The most profound ethical point of the Second Inaugural, I have gradually come to believe, is not the call for reconciliation and an early example of what, in just war theory today, we would call jus post bellum nor is it even the recognition of the shared responsibility of this political community for slavery.  It is, rather, the way in which the Address seeks to steer a path between moral relativism about the conflict, or else simply assertion of absolutist morality admitting of no possibility of moral error.  Lincoln is a rhetoricist, not a philosopher, and he seeks to thread his way between these two by a form of language, rather than an argument as such.  Whether it is successful, philosophically, is not so clear, but the formulation Lincoln adopts in a handful of phrases makes clear that he is seeking to bridge the gap, "with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in" - which meant, at the time of delivery, not yet reconstruction, but war, fighting at Petersburg, the last outpost before the Confederate capital at Richmond.  

Consider the possible twists and turns of that phrase, however: firmness in the right, yes, but as God gives us to see the right - not, however, as we see the right, necessarily, nor even as God sees the right, but as "God gives us to see the right."  These are not the traditional or usual questions of the ethics of war.  But they are the questions that anguished Lincoln at the end of the war, and it seems to me they are questions that ought to figure more strongly in debates over ethics and war, just war, and even the laws of war.  

Why?  Because if you don't have an answer to these questions, you have the option of saying, there's no right or wrong in a moral sense, or at least none that you can know, with respect to war.  In the case of war, it raises the possibility of war without limits.  Walzer famously raised unlimited war as a consequence of realism - by which he really meant Hobbesian state of nature reasoning - but you can get to unlimited war through quite different directions, either if you endorse moral relativism in connection with armed conflict, or if you endorse moral absolutism.  In the case of moral relativism, it becomes morally acceptable to fight, or not fight, as you like, or you can withdraw morally into a quietist neutrality (which is not unknown in the privileging today of humanitarian neutrality as the 'highest' moral stance in war, rather than ever taking sides), or else simply treat your cause as the arbitrary application of power and go with it.

Alternatively, you can be so certain of your moral cause, moral absolutism, that you can also justify a war without limits - because you are fighting for the right and the just cause, and the other side does not - once again leading to the possibility of a war, waged in the name of justice, without limits.  This is what many northern abolitionists believed, and as an ethics of war, it seems to be close to what William Tecumseh Sherman believed (the realist-sounding 'war is hell' trope associated with him notwithstanding) - this war is simply the physics of equilibrium being re-asserted following a violation of natural law.

In other words, when we raise the question of 'how do you know and what if you can't?' in connection with the ethics of war, it is not merely a rehash of the endless general debate over moral relativism and moral knowledge.  On the contrary, it raises a specific and harrowing possibility in the ethics of war specifically - the possibility of unlimited war, war without limits.  That is the needle Lincoln seeks to thread, by forms of language woven into the Second Inaugural, because everything about the conduct, his conduct, of the Civil War has led, step by step, away from limited war to, finally, perhaps the first 'total war' of the industrial age.

A haiku based on a lecture in my financial crisis course

One of my students composed the following haikus based, he said, on a lecture last week in my financial crisis course ...

Stress from the crisis
Causes my hair to fall out
We will form a gang.

Then, in connection with a point I had made in class that, when we talk about “falling dominos” when successive counterparties fail in cases of systemic risk, it isn’t simply that institutions fall in a single chain - the ripples extend outwards, not just in a single line of dominos, but in multiple directions, like a network:

Systemic Risk is
Not like dominoes, it is
Not that linear.

Then, in trying to find ever-weirder metaphors to explain systemic risk, I appealed to The Puppet Masters, the classic sci-fi novel by Robert Heinlein, where the aliens communicate by “merging” to “share information” as a single body - hence, in trying to kill the parasite, virus would spread from one t the next as though it were a single organism; the act of communicating would spread the virus.

However, since no one had read the book or seen the movie, I shifted craftily to another sci-fi reference of networks spreading infections - the Borg!:

Virus infecting
One Borg drone can destroy all
That's Systemic Risk.

Asymmetry of Expansion and Contraction

Expansion and leverage take place on the basis of assets; contraction and de-leveraging, however, take place by institution and market. The process is relatively smooth and incremental in expansion, but sticky and punctuated in contraction as institutions fail. The asymmetry is a function of the legal regime. Is the asymmetry correctly priced by the financial markets in assets and by the markets in institutional control? I wonder.

The Moral Psychology of Finance and Virtue Economics (a hasty note)

(Other pressing engagements restrict me from saying more about this topic now, but I plan to turn and write something, at least as an introduction, later in 2009. It seems to me a quite important perspective in the current legal, economic, policy, and intellectual environment of the financial crisis, and one that has not so far emerged in its own right. I might make some unannounced revisions to this at some moment, as it mostly constitutes notes to myself. I’m afraid I buried the lede, though, and don’t have time to correct it now - sorry! - the important stuff is halfway in and then to the end.)

As economics absorbs psychology and expands to create behavioral economics (the intersection of actual behavior and posited rational behavior), it will inevitably wind up having to address a third large area. This third area has sometimes been called ‘moral psychology’ - the study of moral concepts that have to do with the emotional and affective propensities, capacities, and behaviors of human beings. Perhaps not really a discipline, it partakes partly of philosophy of mind and moral philosophy, insofar as it is about elucidating the meanings and concepts of affective states, including the virtues but also including crucial concepts of human psychology, such as trust, friendship, love, hate, and many more. It also partakes, for obvious reasons, of psychology - and yet psychology, because of the disruptions to the discipline of the past fifty years (starting with the collapse of Freudianism), has had difficulty taking part as it sorts its methodologies out.

Can I give any concrete examples of moral psychologists? The writers in moral philosophy who have analyzed the virtues have, to one extent or another, almost of necessity written to some extent in moral psychology - Philippa Foot, for example, or many writers in virtue ethics, notably Rosalind Hursthouse. It also includes writers in virtue ethics and law - Larry Solum, who many of us know for his Legal Theory Blog and as a jurisprudentialist and theorist of intellectual property, is, in my humble view, most important in the long term for his work on virtue ethics and judging. But moral psychology has also included, for reasons also obvious, writers on the morality of punishment, forgiveness, praise and blame, desert, thankfulness, and so on. Some of the most important - the great philosopher of morality, famous for his work on punishment, Herbert Morris, has written extensively on philosophy and psychoanalysis and Freud, and who continues to teach at UCLA on the moral emotions. The link among all these is the willingness to look not merely at actions and acts, but at the interior subjective state as a source and matter of morality, upon affect and affection, that necessarily require a view of mind, emotion, and feeling.

Lawyers and law professors have long shown great propensity for moral psychology - in the distinctions of intentionality in the criminal law, for example, or distinguishing between kinds of performative utterances, and so forth. Taking a book not-quite at random from my shelf, Ian Ayres’, et al., Insincere Promises (Yale 2005). Although you might have thought it would begin with a disquisition on rationality, promising-and-defection games (important, of course), instead it begins with a fastidiously subtle discussion of promising as a performative act, a rigorous linguistic account of mental states in promising sincerely and insincerely. Lawyers are good at moral psychology. To some degree, however, in the infatuation of academic law with rationality games of economics, moral psychology has been devalued as, well ... the humanities.

Affective moral psychology has been au courant for at least a generation now in academic moral philosophy; nothing new there. Behavioral economics is quickly coming into its own. Two things seem to me to have gone unremarked, however, each of which deserves far greater attention.

One is that this rising field of behavioral economics stands in need of far greater attention to and from moral psychology - specifically from philosophers who, trained in the careful distinguishing of moral concepts but also attuned to affect, are able to disentangle such concepts crucial to the new disciplines, but frankly not carefully thought out, such as trust.

I will return to ‘trust’ in a moment. But first note that this attention from philosophers is different from another kind of attention that seems to flow in fits and starts across successive academic generations - the philosophy of economics more generally, meaning by that mostly the philosophical concepts of value and comparison. The philosophy of economics (the field I would be most inclined to study in philosophy and intellectual history were I starting all over) has had some great contributions in recent decades - Elizabeth Anderson, Martha Nussbaum, Amartya Sen, Cass Sunstein (particularly his contributions on incommensurables and on analogical reasoning). Yet it tends to stop and start over the long term. We need more discussion of these core concepts in economics, more attention from philosophers, not less - but I mean something much more specific in referring to moral psychology: philosophy of economics only sometimes addresses itself to questions of affect.

Rising awareness of the specificity of finance, and the role of such things as passions, greed and fear, virtue and vice, rationality and irrationality - naturally these are the first subjects for the new behavioral economics and behavioral finance. But notice how quickly these subjects turn to topics in moral psychology. The great finance economist Robert Schiller, for example, had an opinion piece, drawn out of a new book, in the Wall Street Journal a few days ago (WSJ, Opinion Page, January 27, 2009) that specifically asserted ‘trust’ as a condition of financial markets. Yet it was striking how undeeply conceived the concept of trust was in the essay - it was nothing more than ‘confidence’ in one’s fellow participants.

Whereas the essay seemed to rely upon a quite different idea than merely mutual confidence giving rise to animal spirits, in Keynes’ famous term. It seemed to rely not on trust in one’s fellow market players, but instead the much more psychologically and philosophically nuanced idea that in a society governed by the neutral rule of law, while one might need a certain amount of mutual confidence in the willingness at one point or another in the business cycle to take risks, one did not need to have any great trust in one’s fellow market participants, but instead trust in a set of public institutions to enforce agreed upon relationships between otherwise not-greatly-trusting participants in markets. This is, after all, what separates out public trust societies from cousin-loyalty societies - and the implications of wherein you place your trust have enormous implications for what and how you regulate in order to maintain that necessary trust. If one stops to parse the concepts, trust involves a mutuality, or assumption of mutuality, that confidence need not - it might, as my reference to ‘mutual confidence’ suggests, but it need not. Trust is psychologically and conceptually - evidenced in the nuances for how we use the terms, which is to say, partly as synonyms but partly not - deeper and more inherently ‘mutual’ than confidence: these apparently minor or subtle differences have considerable implications, perhaps surprisingly, for what Schiller’s essay might propose to regulate or not, as a matter of public policy.

This is a small example, of course, and one that does not especially deal with affective aspects of trust - but it is illustrative of the general problem that finance economists have not necessarily thought all that deeply about affective concepts, let alone how an affective, interior, intersubjective concept like trust can be distinguished from other closely related, and yet different (and with different implications, sometimes very large, for how to regulate) concepts in moral psychology - or operationalized as testable propositions in empirical behavioral economics. I would guess that Professor Schiller has probably not read Francis Fukuyama’s under-appreciated book on precisely this subject - and a very fine work of moral psychology by a non-philosopher - Trust: The Social Virtues and the Creation of Prosperity.

The second unremarked thing follows closely on this. It is that finance, in particular, stands in special need of dialogue with moral psychology. Why finance more than economics generally? It is because finance, and finance theorists, are discovering with astonishing rapidity in the dislocations of markets today that markets do not always follow impersonal rules of economic rationality - there are limits upon efficient markets (I say this as a believer, not a revisionist), there are empirical behavioral tendencies that can undermine markets that regulation needs to take into account - and there are important conceptual issues about empirical behavior that need to be understood even in the real-world act of establishing regulation. Trust is a good example - if you think that trust in financial markets is mostly about trust in your fellow participants, as even Greenspan seemed to suggest in his latest Congressional testimony, then you will have one view about regulation. If you think it is about trust in the neutrality of public institutions leading to the enforcement of contrast irrespective of the identity or propensity or affect of other market participants, then you will have a quite different view of regulation. The conceptualization of what is at bottom a concept, a concept with feet planted in multiple disciplines, but ethics and psychology being two of them - that conceptualization really matters. It matters in particular in finance.

Why finance, then? Because in many other parts of economics, the operation of brute self-interest or else the truly impersonal operation of institutions is sufficient to establish and ordain behavior. You don’t need to reach deeply into psychological, let alone moral, concepts, provided (typically) that the law is sufficient to enforce external rules. Finance, by contrast, to the degree that that economists such as Schiller are themselves today asserting that the nature of markets permitting mass participation by individuals, and not just by impersonal institutions, invokes the psychology of both individuals and masses (that is, without saying more about it, both psychology and sociology - sociology, that is, and not merely psychology, in such matters as legitimation of public institutions such as financial markets), then finance is different. It is different in part because of the different role of psychology - and concepts that rely upon affect and upon concepts and understanding of moral affect, greed and fear, virtue and vice, reward and punishment, praise and blame, shame and guilt, anxiety and relief, euphoria and melancholy, animal spirits and animal passivity, affection and disaffection. Those are especially present in mass market finance, as the behavioral economists well know today - but that betokens a far closer examination of the underlying concepts and their meaning. This is a job for moral psychology.

And so ... the moral psychology of finance. Perhaps even a new, and slightly different field ... virtue economics? Why not?

(I see from comments that some people are taking ‘virtue economics’ to mean ‘economics as influenced by distributive morality’ - that field is already highly worked out, and I intend something different here. By ‘virtue economics’, I mean not questions of distributive justice, but instead the conceptual meanings, distinctions, and elucidation of psychological states, emotions, feelings, and affect, as they interact with economics and financial economics particularly.)

I don’t have time at this point to say more. But if we were going further, we might turn to consider not just moral psychology and finance, but also sociology and finance. It is not irrelevant to say that with respect to public financial markets, there is a certain kind of legitimation crisis underway. That is a concept alien these days not just to the economists, but in large part even to the political scientists. But, really, how is one to understand the problem of trust or confidence in public markets in which one invests one’s life savings without a deep concept of ... legitimacy?